[Federal Register Volume 87, Number 76 (Wednesday, April 20, 2022)]
[Rules and Regulations]
[Pages 23447-23450]
[FR Doc No: 2022-08332]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0661]
RIN 1625-AA11

Regulated Navigation Area; Offshore, Cape Canaveral, Florida

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a regulated navigation area
(RNA) for rocket launch vehicles originating from Cape Canaveral, FL.
The RNA will encompass all waters within typical rocket flight
trajectories originating from launch complexes on or around Cape
Canaveral, FL, and out to 12 nautical miles. The RNA is necessary to
ensure the safety of vessels, mariners and navigable waters during
scheduled rocket launch vehicle operations. An notice of proposed
rulemaking (NPRM) and supplemental notice of proposed rulemaking
(SNPRM) were conducted to allow for public comment on the rule. The
SNPRM considered the comments from the NPRM, and made several minor
revisions, which included revisions that expanded the list of RNA
exclusion zones.

DATES: This rule is effective May 20, 2022.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0661 in the search box and click ``Search.'' Next, in the Document
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Junior Grade Stephanie Miranda, District 7
Waterways Division (dpw), U.S. Coast Guard; telephone<PHONE_NUMBER>,
email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
SNPRM Supplemental notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
MOC Merril Operations Center
SLD 45 U.S. Space Launch Delta 45
COTP Captain of the Port
WGS 1984 World Geodetic System 1984

II. Background Information and Regulatory History

    On September 17, 2021, the Coast Guard published a notice of
proposed rulemaking entitled ``Regulated Navigation Area; Offshore,
Cape Canaveral, Florida'' in the Federal Register (86 FR 51845) in
order to replace the existing safety zone in 33 CFR 165.775 with a
regulated navigation area (RNA). During the comment period on the NPRM
that ended on October 18, 2021, we received three comments.
    On January 7, 2022, the Coast Guard published a supplemental notice
of proposed rulemaking (SNPRM) in the Federal Register (87 FR 916).
Section III of the SNPRM provides a summary of the comments and the
Coast Guard's

responses to those comments. The SNPRM revised the regulatory text from
the original NPRM to expand the list of RNA exclusionary zones to
include additional missions which are expected to be conducted. The
SNPRM also included the Captain of the Port's (COTP) consideration of
analysis from U.S. Space Launch Delta 45 (SLD 45) when activating an
RNA exclusionary zone. No other changes were made in the SNPRM. The
comment period on the SNPRM closed on March 16, 2022. No comments were
submitted on the SNPRM.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Seventh District Commander and the Captain of the Port
Jacksonville have determined that potential hazards associated with
rocket launches from Cape Canaveral, FL, display a safety concern for
anyone within the perimeter of the RNA exclusionary zones. The RNA will
only be activated a reasonable time before a launch and deactivated
once the area is no longer hazardous. The purpose of this rule is to
ensure safety of vessels, mariners, and the navigable waters in the RNA
before, during, and after the scheduled event.

IV. Discussion of Comments, Changes, and the Rule

    We received no comments on our SNPRM published January 7, 2022. In
the final rule, the Coast Guard is making one change. The Coast Guard
is revising Sec.  165.775(b) ``Definitions'' to clarify that the Coast
Guard representative in the Merril Operations Center (MOC) is a
designated representative of the COTP.
    The final rule establishes an RNA in the following areas: All
waters offshore Cape Canaveral from surface to bottom, encompassed by a
line connecting the following points beginning with Point 1 at
28[deg]48'54'' N, 80[deg]28'40'' W; thence southwest to Point 2 at
28[deg]43'20'' N, 80[deg]41'00'' W; thence south along the shoreline to
Point 3 at 28[deg]25'18'' N, 80[deg]34'43'' W; thence continuing south
offshore to Point 4 at 28[deg]11'00'' N, 80[deg]29'00'' W; thence east
to Point 5 at 28[deg]10'00'' N, 80[deg]21'13'' W; thence north along
the 12 nautical mile line back to Point 1. Coordinates are in the World
Geodetic System 1984 (WGS 1984). These coordinates are based on the
furthest north and south trajectories of typical rocket launch vehicles
originating from Cape Canaveral. In addition, there are five launch
hazard areas in which the majority of rocket launches will fall and are
meant to alert mariners to the general areas in which launches will
occur. We list the coordinates and locations of the five launch hazard
areas in the regulatory text of this RNA.
    When the RNA is deemed activated, the COTP or a designated
representative will be able to restrict vessel movement including but
not limited to transiting, anchoring, or mooring within this RNA to
protect vessels from hazards associated with rocket launches. Active
restrictions are based on mission specific launch exclusion areas
provided by the SLD 45, are temporary in nature, and would only be
enacted and enforced prior to and just after a launch. The COTP would
be able to activate any single area, a combination of areas, or
establish areas within the RNA boundary area as warranted by specific
risks posed by individual launches. The determination of risk would be
at the discretion of the COTP and informed by the mission specific
launch exclusion areas provided by SLD 45.
    The COTP will inform the public of the activation or status of the
RNA and specific exclusion areas, by Broadcast Notice to Mariners on
VHF-FM channel 16, Public Notice of Enforcement, on-scene presence, and
by the display of a yellow ball from a 90-foot pole near the shoreline.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, this
rule has not been reviewed by the Office of Management and Budget
(OMB).
    The RNA will operate in a similar way to the existing safety zone,
but will reduce the size of exclusionary areas for each specific rocket
launch. We expect the economic impact of this rule to be so minimal
that a full regulatory evaluation is unnecessary. The RNA will only be
activated a reasonable time before a launch and deactivated once the
area is no longer hazardous.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. 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.
    The total time of the RNA activation and thus restriction to the
public is expected to be approximately one hour per launch. Vessels
would be able to transit around the activated RNA locations during
these launches. We do not anticipate any significant economic impact
resulting from activation of the RNA.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
    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 this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    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.

C. Collection of Information

    This rule will not call for a new collection of information under
the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    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 have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, 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.

E. 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 an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves the
activation of a RNA with smaller exclusionary zones. The activation of
the RNA is expected to be an hour total per occurrence. It is
categorically excluded from further review under paragraph L60(a) of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A
Record of Environmental Consideration supporting this determination is
available in the docket. For instructions on locating the docket, see
the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email 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.

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:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.2.

0
2. Revise Sec.  165.775 to read as follows:

Sec.  165.775  Regulated Navigation Area; Launch Area Offshore Cape
Canaveral, FL.

    (a) Location. (1) The following area is a regulated navigation area
(RNA): All waters offshore Cape Canaveral from surface to bottom,
encompassed by a line connecting the following points beginning with
Point 1 at 28[deg]48'54'' N, 80[deg]28'40'' W; thence southwest to
Point 2 at 28[deg]43'20'' N, 80[deg]41'00'' W; thence south along the
shoreline to Point 3 at 28[deg]25'18'' N, 80[deg]34'43'' W; thence
continuing south offshore to Point 4 at 28[deg]11'00'' N,
80[deg]29'00'' W; thence east to Point 5 at 28[deg]10'00'' N,
80[deg]21'13'' W; thence north along the 12 nautical mile line back to
Point 1. Coordinates are in World Geodetic System (WGS) 1984. These
coordinates are based on the furthest north and south trajectories of
typical rocket launch vehicles originating from Cape Canaveral.
    (2) Restrictions may be enforced anywhere within the boundaries of
the RNA. Restrictions will be based on the risk assessment of the
Captain of the Port Jacksonville and informed by the mission specific
launch exclusion areas provided by U.S. Space Launch Delta 45 (SLD 45).
There are five launch hazard areas that cover rocket launches. Launch
hazard areas include all navigable waters within the following
coordinates, encompassed by a line starting at Point 1 connecting the
following points:
    (i) Northeast Launch Hazard Area.

                     Table 1 to Paragraph (a)(2)(i)
------------------------------------------------------------------------

------------------------------------------------------------------------
Point 1.................................  28[deg]47'47''  080[deg]27'48'
                                                       N             ' W
Point 2.................................  28[deg]42'18''  080[deg]34'55'
                                                       N             ' W
Point 3.................................  28[deg]39'13''  080[deg]37'49'
                                                       N             ' W
Point 4.................................  28[deg]32'29''  080[deg]33'53'
                                                       N             ' W
Point 5.................................  28[deg]34'00''  080[deg]29'00'
                                                       N             ' W
Point 6.................................  28[deg]39'43''  080[deg]21'57'
                                                       N             ' W
------------------------------------------------------------------------

    (ii) East Northeast Launch Hazard Area.

                     Table 2 to Paragraph (a)(2)(ii)
------------------------------------------------------------------------

------------------------------------------------------------------------
Point 1.................................  28[deg]43'53''  080[deg]24'50'
                                                       N             ' W
Point 2.................................  28[deg]36'10''  080[deg]35'20'
                                                       N             ' W
Point 3.................................  28[deg]31'46''  080[deg]33'40'
                                                       N             ' W
Point 4.................................  28[deg]34'42''  080[deg]28'40'
                                                       N             ' W
Point 5.................................  28[deg]40'45''  080[deg]22'28'
                                                       N             ' W
------------------------------------------------------------------------

    (iii) Large East Launch Hazard Area.

                    Table 3 to Paragraph (a)(2)(iii)
------------------------------------------------------------------------

------------------------------------------------------------------------
Point 1.................................  28[deg]40'32''  080[deg]22'21'
                                                       N             ' W
Point 2.................................  28[deg]39'14''  080[deg]37'48'
                                                       N             ' W
Point 3.................................  28[deg]27'00''  080[deg]31'55'
                                                       N             ' W
Point 4.................................  28[deg]27'35''  080[deg]18'27'
                                                       N             ' W
------------------------------------------------------------------------

    (iv) Small East Launch Hazard Area.

                     Table 4 to Paragraph (a)(2)(iv)
------------------------------------------------------------------------

------------------------------------------------------------------------
Point 1.................................  28[deg]39'42''  080[deg]21'56'
                                                       N             ' W
Point 2.................................  28[deg]39'00''  080[deg]31'00'
                                                       N             ' W
Point 3.................................  28[deg]38'00''  080[deg]36'58'
                                                       N             ' W
Point 4.................................  28[deg]32'00''  080[deg]33'45'
                                                       N             ' W
Point 5.................................  28[deg]31'51''  080[deg]20'41'
                                                       N             ' W
------------------------------------------------------------------------

    (v) Southeast Launch Hazard Area.

                     Table 5 to Paragraph (a)(2)(v)
------------------------------------------------------------------------

------------------------------------------------------------------------
Point 1.................................  28[deg]37'00''  080[deg]29'00'
                                                       N             ' W
Point 2.................................  28[deg]35'48''  080[deg]34'59'
                                                       N             ' W
Point 3.................................  28[deg]25'18''  080[deg]34'43'
                                                       N             ' W
Point 4.................................  28[deg]11'00''  080[deg]29'00'
                                                       N             ' W
Point 5.................................  28[deg]10'00''  080[deg]21'13'
                                                       N             ' W
Point 6.................................  28[deg]19'36''  080[deg]23'10'
                                                       N             ' W
Point 7.................................  28[deg]22'11''  080[deg]20'17'
                                                       N             ' W
------------------------------------------------------------------------

    (b) Definitions. The following definition applys to this section:
    Designated representative means Coast Guard Patrol Commanders
including Coast Guard coxswains, petty officers and other officers
operating Coast Guard vessels, Coast Guard Representatives in the
Merril Operations Center, and Federal, state, and local officers
designated by or assisting the Captain of the Port (COTP) Jacksonville
in the enforcement of the RNA.
    (c) Regulations. (1) The COTP Jacksonville or a designated
representative may restrict vessel movement including but not limited
to

transiting, anchoring, or mooring within this RNA to protect vessels
from hazards associated with rocket launches. These restrictions are
temporary in nature and will only be enacted and enforced prior to and
just after a launch.
    (2) The COTP Jacksonville may activate restrictions within any
single area, a combination of areas, or establish ad hoc areas within
the RNA boundary area. Activation of prescribed or ad hoc Launch Hazard
Areas will be based on the risk assessment of the Captain of the Port
Jacksonville and informed by the mission specific launch exclusion
areas provided by SLD 45 to account for the specific risks posed by
individual launches.
    (d) Notice of activation of RNA. The COTP Jacksonville will inform
the public of the activation or status of the RNA and specific
exclusion areas, by Broadcast Notice to Mariners on VHF-FM channel 16,
Public Notice of Enforcement, on-scene presence, and by the display of
a yellow ball from a 90-foot pole near the shoreline at approximately
28[deg]35'00'' N, 080[deg]34'36'' W and from a 90-foot pole near the
shoreline at approximately 28[deg]55'18'' N, 080[deg]35'00'' W. Coast
Guard assets or other Federal, State, or local law enforcement assets
will be clearly identified by lights, markings, or with agency
insignia.
    (e) Contact information. The COTP Jacksonville may be reached by
telephone at<PHONE_NUMBER>. Any on-scene Coast Guard or designated
representative assets may be reached on VHF-FM channel 16.

    Dated: April 12, 2022.
Brendan C. McPherson,
Rear Admiral, Commander, Coast Guard Seventh District.
[FR Doc. 2022-08332 Filed 4-19-22; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 86, Number 181 (Wednesday, September 22, 2021)]
[Notices]
[Pages 52704-52705]
[FR Doc No: 2021-20442]

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SECURITIES AND EXCHANGE COMMISSION

[SEC File No. 270-450, OMB Control No. 3235-0505]

Submission for OMB Review; 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:
    Rule 303 of Regulation ATS

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (``PRA'') (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') has submitted to the Office of Management
and Budget (``OMB'') a request for approval of extension of the
previously approved collection of information provided for in Rule 303
of Regulation ATS (17 CFR 242.303) under the Securities Exchange Act of
1934 (15 U.S.C. 78a et seq.) (``Exchange Act'').
    Regulation ATS sets forth a regulatory regime for ``alternative
trading systems'' (``ATSs''), which are entities that carry out
exchange functions but are not required to register as national
securities exchanges under the Act. In lieu of exchange registration,
an ATS can instead opt to register with the Commission as a broker-
dealer and, as a condition to not having to register as an exchange,
must instead comply with Regulation ATS. Rule 303 of Regulation ATS (17
CFR 242.303) describes the record preservation requirements for ATSs.
Rule 303 also describes how such

records must be maintained, what entities may perform this function,
and how long records must be preserved. Under Rule 303, ATSs are
required to preserve all records made pursuant to Rule 302, which
includes information relating to subscribers, trading summaries, and
time-sequenced order information. Rule 303 also requires ATSs to
preserve any notices provided to subscribers, including, but not
limited to, notices regarding the ATSs operations and subscriber
access. For an ATS subject to the fair access requirements described in
Rule 301(b)(5)(ii) of Regulation ATS, Rule 303 further requires the ATS
to preserve at least one copy of its standards for access to trading,
all documents relevant to the ATS's decision to grant, deny, or limit
access to any person, and all other documents made or received by the
ATS in the course of complying with Rule 301(b)(5) of Regulation ATS.
For an ATS subject to the capacity, integrity, and security
requirements for automated systems under Rule 301(b)(6) of Regulation
ATS, Rule 303 requires an ATS to preserve all documents made or
received by the ATS related to its compliance, including all
correspondence, memoranda, papers, books, notices, accounts, reports,
test scripts, test results and other similar records. Rule 303(a)(1)(v)
of Regulation ATS requires every ATS to preserve the written safeguards
and written procedures mandated under Rule 301(b)(10). As provided in
Rule 303(a)(1), ATSs are required to keep all of these records, as
applicable, for a period of at least three years, the first two in an
easily accessible place. In addition, Rule 303 requires ATSs to
preserve records of partnership articles, articles of incorporation or
charter, minute books, stock certificate books, copies of reports filed
pursuant to Rule 301(b)(2) and Rule 304, and records made pursuant to
Rule 301(b)(5) for the life of the ATS. ATSs that trade both NMS Stock
and securities other than NMS Stock are required to file, and also
preserve under Rule 303, both Form ATS and related amendments and Form
ATS-N and related amendments.
    The information contained in the records required to be preserved
by Rule 303 will be used by examiners and other representatives of the
Commission, state securities regulatory authorities, and the self-
regulatory organizations (``SROs'') to ensure that ATSs are in
compliance with Regulation ATS as well as other applicable rules and
regulations. Without the data required by the Rule, regulators would be
limited in their ability to comply with their statutory obligations,
provide for the protection of investors, and promote the maintenance of
fair and orderly markets.
    Respondents consist of ATSs that choose to register as broker-
dealers and comply with the requirements of Regulation ATS. There are
currently 94 respondents. The Commission believes that the average
ongoing hourly burden for a respondent to comply with the baseline
record preservation requirements under Rule 303 is approximately 15
hours per year. We thus estimate that the average aggregate ongoing
burden to comply with the baseline Rule 303 record preservation
requirements is approximately 1,410 hours per year. (94 ATSs x 15 hours
= 1,410 hours) In addition, there are currently two ATSs that transact
in both NMS stock and non-NMS stock on their ATSs. These two ATSs have
a slightly greater burden because they have to keep both Form ATS and
Form ATS-N and related documents (e.g., amendments). For these two
ATSs, we estimate that the ongoing burden above the current baseline
estimate for preserving records will be approximately 1 hour annually
per ATS for a total annual burden above the current baseline burden
estimate of 2 hours for all respondents. Thus, the estimated average
annual aggregate burden for alternative trading systems to comply with
Rule 303 is approximately 1,412 hours (1,410 hours + 2 hours).
    Compliance with Rule 303 is mandatory. The information required by
Rule 303 is available only for the examination of the Commission staff,
state securities authorities and the SROs. Subject to the provisions of
the Freedom of Information Act, 5 U.S.C. 522 (``FOIA''), and the
Commission's rules thereunder (17 CFR 200.80(b)(4)(iii)), the
Commission does not generally publish or make available information
contained in any reports, summaries, analyses, letters, or memoranda
arising out of, in anticipation of, or in connection with an
examination or inspection of the books and records of any person or any
other investigation.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
    The public may view background documentation for this information
collection at the following website: www.reginfo.gov. Find this
particular information collection by selecting ``Currently under 30-day
Review--Open for Public Comments'' or by using the search function.
Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to (i) www.reginfo.gov/public/do/PRAMain and (ii) David Bottom,
Director/Chief Information Officer, Securities and Exchange Commission,
c/o Cynthia Roscoe, 100 F Street NE, Washington, DC 20549, or by
sending an email to<EMAIL_ADDRESS>
    Dated: September 16, 2021.
J. Matthew Delesdernier,
Assistant Secretary.
[FR Doc. 2021-20442 Filed 9-21-21; 8:45 am]
BILLING CODE 8011-01-P


Herb Estreicher < Estreicher@ khlaw. com>

10/ 01/ 2004 11: 28 AM To Carey Johnston/ DC/ USEPA/ US@ EPA cc wilkinsonj@ cox. net, martinrollins@ hmrollins. com bcc Subject TWPEs for Dioxin/ Furan Releases from SIC Code 2491 Facilities Mr. Johnston:

I am writing on behalf of the Pentachlorophenol Task Force ( Task Force) concerning the Toxic Weighted Pounds Equivalents ( TWPE) for dioxin/ furan releases from penta wood treating facilities in SIC Code 2491. In the Timber Industry memo that you provided to us on June 8, 2004, the TWPE for dioxin and dioxin like compounds for facilities within SIC Code 2491 was calculated at 379,324 pounds equivalent. Since that time, EPA has published revisions to the Toxic Weighing Factors ( TWFs) for Dioxins and Congeners ( August 10, 2004 Zipf Memo). Also, the PTF has obtained additional analytical data on the dioxin and furan content of technical pentachlorophenol ( penta). As explained below, these two developments lead to a recalculation of the TWPE for dioxins and dioxin like compounds for facilities in SIC Code 2491. The recalculated TWPE is 41,481.

1. High Resolution Gas Chromatography/ Mass Spectral Analysis of the Dioxin Content of Penta.

In compiling the Y2000 TRI reports for dioxin and dioxin like compounds, facilities within SIC Code 2491 utilized available data on penta concentrations in stormwater effluent. This was typically a single grab sample taken 30 minutes after a rain fall event pursuant to the facilities' general stormwater permits. Factors for converting penta levels to dioxin and furan levels were then applied. The penta to dioxin and furan conversion factors were based on supplier provided data on the dioxin and furan content in penta. The supplier data were such that it permits an estimated TM 17 breakdown only by the individual 2,3,7,8 substituted dioxin and furan congener groups, but not a further differentiation of the specific isomers within a given congener group. Thus, for example, the two 2,3,7,8 heptachlorodibenzofuran isomers ( 1,2,3,4,6,7,8 and 1,2,3,4,7,8,9) were assumed to be present in equal amounts because no data were available to allow a further differentiation.

In connection with the reregistration of penta, the Task Force commissioned a state of the art High Resolution GC MS of the TM 17 content of penta by the Alta Analytical Laboratory. The results of the analysis, which have been provided to the Office of Pesticide Programs, are attached. The penta sample is designated PETDC01A in the analytical report. The analysis permits a revised and more accurate distribution of the specific TM 17 compounds in penta. It should be noted that for chemical reasons not all of the possible TM 17 compounds are coproduced during penta manufacture. As such, certain TM 17 compounds are Non detected in the Alta analysis and are assigned a Zero value in the TM 17 distribution.

2. Recalculation of TWPE for Dioxin and Dioxin like Compounds The attached Excel spreadsheet provides a recalculation of the TWPE for releases of dioxin and dioxin like compounds to surface water reported by facilities within SIC Code 2491 in the Y2000 TRI. The recalculation reflects: ( 1) the revised TWFs for Dioxins and Congeners as set forth in the August 10, 2004 Zipf Memo, and ( 2) the refined TM 17 distribution for those dioxins and furans found in penta as reflected in the High Resolution GC MS by the Alta Analytical Laboratory. The recalculated TWPE for the SIC code is 41,481. 3. Task Force Commissioned Guidance Document for TRI Reorting of Dioxins and Dioxin like Compounds At our August meeting, you asked for a copy of the guidance used by facilities within SIC Code 2491 to prepare TRI reports for dioxin and dioxin like compounds. A copy is being provided to you by mail.

4. Request for Follow up Meeting We have previously discussed a follow up meeting for sometime this fall to review additional data on releases of dioxin and furans from the industry sector. The Task Force requests that such a meeting be held in mid December, 2004 at which time we expect to have additional data on penta concentrations in stormwater effluent to share with the Agency. Kindly advise as to your availability for the meeting. Also, we would request that the meeting be limited to penta and dioxin and dioxin like compounds in order to focus specifically on those data.

I thank you for your time.

********************************************* This electronic Mail Transmission contains confidential information intended only for the person( s) named. It may be protected by Attorney Client, Work Product and other legal privileges. Any use, distribution, copying or disclosure by another person is strictly prohibited without the consent of the sender. If this transmission has been received in error, you are requested to delete it from your system and to contact the undersigned immediately.

Herb Estreicher, J. D., Ph. D. Keller and Heckman LLP 1001 G Street, NW Washington, D. C. 20001 ( 202) 434 4334 ( Office) ( 202) 434 4646 ( Fax) estreicher@ khlaw. com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 TWF 85,769 3,033,965 5,760,600 14,109,162 47,308,608 51,204,604 23,498,504 9,556,087 10,595,715 411,193 2,021 6,586 7,632,827 557,309,038 692,931,538 43,819,385 703,584,499 Fraction 0.017603 0.001708 0.000302 0.000040 0.000045 0.000101 0.000004 0.000804 0.000066 0.057144 0.193107 0.729076 0.000000 0.000000 0.000001 0.000000 0.000000 1.00 Release ( g) Release ( lbs)

KOPPERS INDS.

INC.* 117.3662 0.258748 390.65 1,340.63 450.35 144.83 556.38 1,338.42 26.36 1,987.87 180.08 6,079.83 100.98 1,242.43 0.00 0.00 113.76 0.00 0.00 13,952.58 ELECTRIC MILLS WOOD PRESERVING L. L. C. 49.8726 0.109950 166.00 569.68 191.37 61.54 236.42 568.74 11.20 844.71 76.52 2,583.51 42.91 527.95 0.00 0.00 48.34 0.00 0.00 5,928.89 KOPPERS INDS.

INC.* 45.3833 0.100053 151.06 518.40 174.14 56.00 215.14 517.54 10.19 768.67 69.63 2,350.96 39.05 480.42 0.00 0.00 43.99 0.00 0.00 5,395.20 HUXFORD POLE & TIMBER CO.

INC. 42.9637 0.094719 143.00 490.76 164.86 53.02 203.67 489.95 9.65 727.69 65.92 2,225.62 36.97 454.81 0.00 0.00 41.64 0.00 0.00 5,107.56 TAYLOR LUMBER &

TREATING INC. 19.4155 0.042804 64.62 221.78 74.50 23.96 92.04 221.41 4.36 328.85 29.79 1,005.77 16.70 205.53 0.00 0.00 18.82 0.00 0.00 2,308.13 DIS TRAN WOOD PRODS.

INC.* 19.1690 0.042260 63.80 218.96 73.55 23.65 90.87 218.60 4.30 324.67 29.41 993.00 16.49 202.92 0.00 0.00 18.58 0.00 0.00 2,278.82 BROWN WOOD PRESERVING CO. INC.* 19.0000 0.041888 63.24 217.03 72.91 23.45 90.07 216.67 4.27 321.81 29.15 984.24 16.35 201.13 0.00 0.00 18.42 0.00 0.00 2,258.73 WILLIAM C.

MEREDITH CO.

INC. 7.7926 0.017180 25.94 89.01 29.90 9.62 36.94 88.87 1.75 131.99 11.96 403.67 6.70 82.49 0.00 0.00 7.55 0.00 0.00 926.39 INTERNATIONAL PAPER CO. 4.6897 0.010339 15.61 53.57 18.00 5.79 22.23 53.48 1.05 79.43 7.20 242.94 4.03 49.64 0.00 0.00 4.55 0.00 0.00 557.51 COLFAX TREATING CO. 4.4000 0.009700 14.65 50.26 16.88 5.43 20.86 50.18 0.99 74.52 6.75 227.93 3.79 46.58 0.00 0.00 4.26 0.00 0.00 523.08 T. R. MILLER MILL CO. INC. 4.0463 0.008921 13.47 46.22 15.53 4.99 19.18 46.14 0.91 68.53 6.21 209.61 3.48 42.83 0.00 0.00 3.92 0.00 0.00 481.03 WHEELER LUMBER L. L. C. 3.8876 0.008571 12.94 44.41 14.92 4.80 18.43 44.33 0.87 65.85 5.96 201.39 3.34 41.15 0.00 0.00 3.77 0.00 0.00 462.16 J. H. BAXTER &

CO. 3.1200 0.006878 10.38 35.64 11.97 3.85 14.79 35.58 0.70 52.84 4.79 161.62 2.68 33.03 0.00 0.00 3.02 0.00 0.00 370.91 INTERNATIONAL PAPER 2.9039 0.006402 9.67 33.17 11.14 3.58 13.77 33.12 0.65 49.18 4.46 150.43 2.50 30.74 0.00 0.00 2.81 0.00 0.00 345.22 J. H. BAXTER &

CO.* 1.5857 0.003496 5.28 18.11 6.08 1.96 7.52 18.08 0.36 26.86 2.43 82.14 1.36 16.79 0.00 0.00 1.54 0.00 0.00 188.51 CASCADE POLE & LUMBER CO.* 1.5062 0.003321 5.01 17.20 5.78 1.86 7.14 17.18 0.34 25.51 2.31 78.02 1.30 15.94 0.00 0.00 1.46 0.00 0.00 179.06 GENERAL WOOD PRESERVING CO. INC. 0.9614 0.002120 3.20 10.98 3.69 1.19 4.56 10.96 0.22 16.28 1.48 49.80 0.83 10.18 0.00 0.00 0.93 0.00 0.00 114.29 L. D. MCFARLAND CO.* 0.2362 0.000521 0.79 2.70 0.91 0.29 1.12 2.69 0.05 4.00 0.36 12.24 0.20 2.50 0.00 0.00 0.23 0.00 0.00 28.08 BROOKS MFG.

CO. ( 2499) 0.1686 0.000372 0.56 1.93 0.65 0.21 0.80 1.92 0.04 2.86 0.26 8.73 0.15 1.78 0.00 0.00 0.16 0.00 0.00 20.04 PERMAPOST PRODS. CO. 0.1685 0.000371 0.56 1.92 0.65 0.21 0.80 1.92 0.04 2.85 0.26 8.73 0.14 1.78 0.00 0.00 0.16 0.00 0.00 20.03 ATLANTIC WOOD IND. INC.

( 2491 and 2451) 0.1587 0.000350 0.53 1.81 0.61 0.20 0.75 1.81 0.04 2.69 0.24 8.22 0.14 1.68 0.00 0.00 0.15 0.00 0.00 18.87 OESER CO.

( 2491 and NA) 0.1328 0.000293 0.44 1.52 0.51 0.16 0.63 1.51 0.03 2.25 0.20 6.88 0.11 1.41 0.00 0.00 0.13 0.00 0.00 15.79 TOTAL 41,480.88 TRI Surface Water Discharges for Facilities in Lumber ( SIC 24): Dioxin and Dioxin like compounds, U. S., 2000 ( Zero Non detects)

* designates an unknown SIC code was reported in 2000 along with 2491


[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Notices]
[Pages 17081-17082]
[FR Doc No: 2012-6981]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[USCG-2012-0082]

Information Collection Requests to Office of Management and
Budget

AGENCY: Coast Guard, DHS.

ACTION: Sixty-day notice requesting comments.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995, the
U.S. Coast Guard intends to submit Information Collection Requests
(ICRs) to the Office of Management and Budget (OMB), Office of
Information and Regulatory Affairs (OIRA), requesting approval of a
revision to the following collections of information: 1625-0012,
Certificate of Discharge to Merchant Mariners and 1625-0040,
Application for Merchant Mariner Credential (MMC), Merchant Mariner
Medical Certificate Evaluation Report, Small Vessel Sea Service Form,
DOT/USCG Periodic Drug Testing Form, and Merchant Mariner Evaluation of
Fitness for Entry Level Ratings. Our ICRs describe the information we
seek to collect from the public. Before submitting these ICRs to OIRA,
the Coast Guard is inviting comments as described below.

DATES: Comments must reach the Coast Guard on or before May 22, 2012.

ADDRESSES: You may submit comments identified by Coast Guard docket
number [USCG-2012-0082] to the Docket Management Facility (DMF) at the
U.S. Department of Transportation (DOT). To avoid duplicate
submissions, please use only one of the following means:
    (1) Online: http://www.regulations.gov.
    (2) Mail: DMF (M-30), DOT, West Building Ground Floor, Room W12-
140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
    (3) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    (4) Fax:<PHONE_NUMBER>. To ensure your comments are received in a
timely manner, mark the fax, to attention Desk Officer for the Coast
Guard.
    The DMF maintains the public docket for this Notice. Comments and
material received from the public, as well as documents mentioned in
this Notice as being available in the docket, will become part of the
docket and will be available for inspection or copying at room W12-140
on the West Building Ground Floor, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also find the docket on the Internet
at http://www.regulations.gov.
    Copies of the ICRs are available through the docket on the Internet
at http://www.regulations.gov. Additionally, copies are available from:
Commandant (CG-611), Attn Paperwork Reduction Act Manager, U.S. Coast
Guard, 2100 2nd St. SW., STOP 7101, Washington, DC 20593-7101.

FOR FURTHER INFORMATION CONTACT: Contact Ms. Kenlinishia Tyler, Office
of Information Management, telephone<PHONE_NUMBER>, or fax<PHONE_NUMBER>,
for questions on these documents. Contact Ms. Renee V. Wright, Program
Manager, Docket Operations,<PHONE_NUMBER>, for questions on the docket.

SUPPLEMENTARY INFORMATION:

Public participation and request for comments

    This Notice relies on the authority of the Paperwork Reduction Act
of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to
OIRA seeking the approval, extension, or renewal of a Coast Guard
collection of information (Collection). The ICR contains information
describing the Collection's purpose, the Collection's likely burden on
the affected public, an explanation of the necessity of the Collection,
and other important information describing the Collections. There is
one ICR for each Collection.
    The Coast Guard invites comments on whether these ICRs should be
granted based on the Collections being necessary for the proper
performance of Departmental functions. In particular, the Coast Guard
would appreciate comments addressing: (1) The practical utility of the
Collections; (2) the accuracy of the estimated burden of the
Collections; (3) ways to enhance the quality, utility, and clarity of
information subject to the Collections; and (4) ways to minimize the
burden of the Collections on respondents, including the use of
automated collection techniques or other forms of information
technology. In response to your comments, we may revise these ICRs or
decide not to seek approval of revisions of the collection. We will
consider all comments and material received during the comment period.
    We encourage you to respond to this request by submitting comments
and related materials. Comments must contain the OMB Control Number of
the ICR and the docket number of this request, [USCG-2012-0082], and
must be received by May 22, 2012. We will post all comments received,
without change, to http://www.regulations.gov. They will include any
personal information you provide. We have an agreement with DOT to use
their DMF. Please see the ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number [USCG-
2012-0082], indicate the specific section of the document to which each
comment applies, providing a reason for each comment. You may submit
your comments and material online (via http://www.regulations.gov), by
fax, mail, or hand delivery, but please use only one of these means. If
you submit a comment online via www.regulations.gov, it will be
considered received by the Coast Guard when you successfully transmit
the comment. If you fax, hand deliver, or mail your comment, it will be
considered as having been received by the Coast Guard when it is
received at the DMF. We recommend you include your name, mailing
address, an email

address, or other contact information in the body of your document so
that we can contact you if we have questions regarding your submission.
    You may submit your comments and material by electronic means,
mail, fax, or delivery to the DMF at the address under ADDRESSES; but
please submit them by only one means. To submit your comment online, go
to http://www.regulations.gov, and type ``USCG-2012-0082'' in the
``Keyword'' box. If you submit your comments by mail or hand delivery,
submit them in an unbound format, no larger than 8\1/2\; by 11 inches,
suitable for copying and electronic filing. If you submit comments by
mail and would like to know that they reached the Facility, please
enclose a stamped, self-addressed postcard or envelope. We will
consider all comments and material received during the comment period
and will address them accordingly.
    Viewing comments and documents: To view comments, as well as
documents mentioned in this Notice as being available in the docket, go
to http://www.regulations.gov, click on the ``read comments'' box,
which will then become highlighted in blue. In the ``Keyword'' box
insert ``USCG-2012-0082'' and click ``Search.'' Click the ``Open Docket
Folder'' in the ``Actions'' column. You may also visit the DMF in Room
W12-140 on the ground floor of the DOT West Building, 1200 New Jersey
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Privacy Act

    Anyone can search the electronic form of comments received in
dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act statement
regarding Coast Guard public dockets in the January 17, 2008, issue of
the Federal Register (73 FR 3316).

Information Collection Requests

    1. Title: Certificate of Discharge to Merchant Mariners.
    OMB Control Number: 1625-0012.
    Summary: Title 46, United States Code, 10311 requires each master
or individual in charge of a vessel, for each merchant mariner being
discharged from the vessel to prepare a Certificate of Discharge to
Merchant Mariners and two copies. These documents are used to establish
evidence of sea service aboard U.S. flagged merchant vessels for
merchant mariners to upgrade their credentials, establish proof of
eligibility for union and other benefits, and in litigation where
vessel service is an issue.
    Need: The information collected provides the U.S. Coast Guard
evidence of sea service used in determining eligibility for issuance of
a merchant mariner credential, to determine eligibility for various
benefits such as medical and retirement, and to provide information to
the U.S. Maritime Administration (MARAD) on the availability of
mariners in a time of a national emergency.
    Forms: CG-718A.
    Respondents: Shipping companies, masters or individuals in charge
of a vessel.
    Frequency: On occasion.
    Burden Estimate: The estimated burden has decreased from 2,443
hours to 1,478 hours.
    2. Title: Application for Merchant Mariner Credential (MMC),
Merchant Mariner Medical Certificate Evaluation Report, Small Vessel
Sea Service Form, DOT/USCG Periodic Drug Testing Form, Merchant Mariner
Evaluation of Fitness for Entry Level Ratings.
    OMB Control Number: 1625-0040.
    Summary: The Application for Merchant Mariner Credential (MMC),
Merchant Mariner Medical Certificate Evaluation Report, Small Vessel
Sea Service Form, DOT/USCG Periodic Drug Testing Form, and Merchant
Mariner Evaluation of Fitness for Entry Level Ratings, contains the
following information: Signature of applicant and supplementary
material required to show that the mariner meets the mandatory
requirements for the credential or medical certificate sought; proof of
applicant passing all applicable vision, hearing, medical, and/or
physical exams; negative chemical test for dangerous drugs; discharges
or other documentary evidence of sea service indicating the name,
tonnage, and propulsion power of the vessels, dates of service,
capacity in which the applicant served, and on what waters.
    Need: Title 46 United States Code (U.S.C.) Subtitle II, Part E,
Title 46 Code of Federal Regulation (CFR) Part 10, Subpart B, and
Proposed Rules entitled ``Implementation of the Amendments to the
International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers (STCW), 1978, and Changes to Domestic
Endorsements'' (RIN 1625-AA16) (Docket No. USCG-2004-17914), (A
Supplemental Notice of Proposed Rulemaking published in the Federal
Register on August 1, 2011 (76 FR 45908)) require merchant mariner
credential (MMC) and medical certificate applicants to apply at any of
the Regional Examination Centers located around the nation. Merchant
mariner credentials are established for individuals who are required to
hold a MMC under Subtitle II. The Coast Guard has the responsibility of
issuing MMCs and medical certificates to applicants found qualified as
to age, character, habits of life, experience, professional
qualifications, and physical fitness. The instruments contained within
OMB 1625-0040 serve as a means for the applicant to apply for
a MMC and medical certificate.
    Forms: CG-719B, CG-719K, CG-719S, CG-719P, CG-719K/E.
    Respondents: Applicants for Merchant Mariner Credentials (MMC),
whether original, renewal, duplicate, raise of grade, or a new
endorsement on a previously issued MMC. Applicants for Medical
Certificates to include Standards of Training, Certification and
Watchkeeping for Seafarers (STCW) endorsed credentialed mariners, and
first-class pilots as defined in the proposed rules, Implementation of
the Amendments to the International Convention on STCW for Seafarers,
1978, and Changes to Domestic Endorsements (Docket No. USCG-2004-
17914).
    Frequency: On occasion.
    Burden Estimate: The estimated burden has increased from 54,416
hours to 57,083 hours a year.

    Dated: March 16, 2012.
R. E. Day,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Command,
Control, Communications, Computers and Information Technology.
[FR Doc. 2012-6981 Filed 3-22-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Notices]
[Pages 15824-15826]
[FR Doc No: 2012-6386]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66575; File No. SR-FINRA-2011-067]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Order Approving a Proposed Rule Change Amending FINRA
Rules 13201 (Statutory Employment Discrimination Claims) and 2263
(Arbitration Disclosure to Associated Persons Signing or Acknowledging
Form U4) Relating to Whistleblower Disputes in Arbitration

March 12, 2012.

I. Introduction

    On November 21, 2011, the Financial Industry Regulatory Authority,
Inc. (``FINRA'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Exchange Act'' or ``Act'') \1\ and
Rule 19b-4 thereunder,\2\ a proposed rule change to amend FINRA Rule
13201 of the Code of Arbitration Procedure for Industry Disputes
(``Industry Code'') to align the rule with statutes that invalidate
predispute arbitration agreements for whistleblower disputes.
Specifically, the proposed rule change would amend Rule 13201 to add a
new provision to provide that a dispute arising under a whistleblower
statute that prohibits the use of predispute arbitration agreements is
not required to be arbitrated under the Industry Code. The proposed
rule change would also make a conforming amendment to FINRA Rule 2263.
The proposed rule change was published for comment in the Federal
Register on December 12, 2011.\3\ The Commission received one comment
letter, from the Securities Industry and Financial Markets Association
(``SIFMA''), on the proposed rule change,\4\ and a response to SIFMA's
comments from FINRA.\5\ The text of the proposed rule change and
FINRA's Response Letter are available on FINRA's Web site at http://www.finra.org, at the principal office of FINRA, on the Commission's
Web site at http://www.sec.gov, and at the Commission's Public
Reference Room.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Exchange Act Release No. 65896 (Dec. 6, 2011)
(``Notice'').
    \4\ See letter from Kevin M. Carroll, Managing Director and
Associate General Counsel, SIFMA, dated January 3, 2012 (``SIFMA
Letter'').
    \5\ See letter from Margo A. Hassan, Assistant Chief Counsel,
FINRA, to Elizabeth M. Murphy, Secretary, Commission, dated March 5,
2012 (``Response Letter'').
---------------------------------------------------------------------------

    This order approves the proposed rule change.

II. Purpose

    The proposed rule change would amend FINRA Rule 13201 (Statutory
Employment Discrimination Claims) of the Industry Code, and FINRA Rule
2263 (Arbitration Disclosure to Associated Persons Signing or
Acknowledging Form U4), to align the rules with statutes that
invalidate predispute arbitration agreements for whistleblower
disputes.
    The Dodd-Frank Wall Street Reform and Consumer Protection Act
(``Dodd-Frank Act'') \6\ amended the Sarbanes-Oxley Act of 2002
(``SOX'') \7\ by adding a new paragraph (e) to 18 U.S.C. 1514A
(Nonenforceability of Certain Provisions Waiving Rights and Remedies or
Requiring Arbitration of Disputes) \8\ to provide that:
---------------------------------------------------------------------------

    \6\ See Dodd-Frank Wall Street Reform and Consumer Protection
Act, Public Law 111-203 (2010).
    \7\ Sarbanes-Oxley Act of 2002, Public Law 107-204 (2002).
    \8\ See Dodd-Frank Act Section 922(c)(2).
---------------------------------------------------------------------------

    (1) Waiver of Rights and Remedies--The rights and remedies provided
for in this section may not be waived by any agreement, policy form, or
condition of employment, including by a predispute arbitration
agreement.
    (2) Predispute Arbitration Agreements--No predispute arbitration
agreement shall be valid or enforceable, if the agreement requires
arbitration of a dispute arising under this section.
    Prior to the Dodd-Frank Act, it was FINRA staff's articulated
position that parties were required to arbitrate SOX whistleblower
claims under the Industry Code.\9\
---------------------------------------------------------------------------

    \9\ See Arbitrability of Sarbanes-Oxley Whistleblower Claims by
Laurence S. Moy, Pearl Zuchlewski, Linda A. Neilan and Katherine
Blostein, The Neutral Corner (Volume 1--2008).
---------------------------------------------------------------------------

    In light of the changes set forth in the Dodd-Frank Act that
invalidate predispute arbitration agreements in the case of SOX
whistleblower disputes, the proposed rule change would amend FINRA Rule
13201 of the Industry Code to make clear that parties are not required
to arbitrate SOX whistleblower disputes, superseding any existing
guidance to the contrary. While FINRA's main impetus for the proposed
rule change was the need to update its staff's stated position on SOX
whistleblower claims, FINRA proposed to make the rule text broad enough
to cover any statutes that prohibit predispute arbitration agreements
for whistleblower disputes.\10\
---------------------------------------------------------------------------

    \10\ The Dodd-Frank Act also invalidated predispute arbitration
agreements in other whistleblower statutes, including, for example,
7 USCA Sec.  26(n) relating to Commodity Exchange Whistleblower
Incentives and Protections.

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

    Rule 13201 of the Industry Code currently provides that a claim
alleging employment discrimination, including sexual harassment, in
violation of a statute, is not required to be arbitrated under the
Industry Code. Such a claim may be arbitrated only if the parties have
agreed to arbitrate it, either before or after the dispute arose. The
proposed rule change would amend Rule 13201 to add a new provision to
provide that a dispute arising under a whistleblower statute that
prohibits the use of predispute arbitration agreements is not required
to be arbitrated under the Industry Code. The rule would state that
such a dispute may be arbitrated only if the parties have agreed to
arbitrate it after the dispute arose.
    FINRA also would amend the title of Rule 13201 to reflect the
addition of the new provision relating to whistleblower disputes. FINRA
structured the proposed rule change to separate the provision relating
to statutory employment discrimination claims from the provision
relating to whistleblower disputes.
    The proposed rule change also would make a conforming amendment to
FINRA Rule 2263, which requires firms to provide each associated person
with certain written disclosures regarding the nature and process of
arbitration proceedings whenever the firm asks an associated person,
pursuant to FINRA Rule 1010 (Electronic Filing Requirements for Uniform
Forms), to manually sign a new or amended Form U4, or to otherwise
provide written acknowledgment of an amendment to the form. The
proposed rule change would amend FINRA Rule 2263 to add a disclosure
provision stating that a dispute arising under a whistleblower statute
that prohibits the use of predispute arbitration agreements is not
required to be arbitrated under FINRA rules, and that such a dispute
may be arbitrated at FINRA only if the parties have agreed to arbitrate
it after the dispute arose.
    As explained in the Notice, FINRA believes that the proposed rule
change is consistent with the provisions of Section 15A(b)(6) of the
Act,\11\ which requires, among other things, that FINRA rules must be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, and, in general, to
protect investors and the public interest. FINRA believes that the
proposed amendments are consistent with the provisions of the Act noted
above because they serve to align FINRA rules with those provisions in
the Dodd-Frank Act that invalidate predispute arbitration agreements in
the context of certain whistleblower disputes.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

III. Discussion of Comment Letters

    In the SIFMA Letter, the commenter raised three distinct concerns
about the proposal. First, the commenter questioned FINRA's use of the
word ``dispute'' in its proposed rule change. Specifically, the
commenter believed that using the word ``dispute'' would allow a
claimant in an arbitration to assert a whistleblower claim under a
whistleblower statute in an effort to improperly remove the entire case
(i.e., ``dispute'') from arbitration. The commenter suggested that
FINRA replace ``dispute'' with ``claim'' because it would allow a claim
asserted under a whistleblower statute to be severed and removed from
the arbitration case but would not allow parties ``to avoid arbitrating
other claims in the case that are properly subject to securities
arbitration.''
    In the Response Letter, FINRA stated that it purposefully used the
word ``dispute'' in the proposed rule to track the language used in the
Dodd-Frank Act. However, FINRA also stated that it would administer the
proposed rule in a manner that would permit an associated person of a
member to bring a whistleblower claim in court while claims that are
part of the same case that are properly subject to arbitration could
remain in arbitration. FINRA also stated, however, that it would comply
with any court order responding to an associated person's request to
consolidate such claims. Therefore, FINRA declined to make the
requested change.
    Second, the commenter suggested that the proposed rule should apply
only to claims under applicable Federal whistleblower statutes instead
of both Federal and state statutes. Specifically, the commenter
believed that because the Federal Arbitration Act (``FAA'') ``generally
preempts state statutes that invalidate arbitration agreements,'' it
also generally preempts any state statutes that remove whistleblower
claims from arbitration. Accordingly, the proposal should only apply to
Federal whistleblower statutes.
    In its Response Letter, FINRA stated that it did not believe that
it would be appropriate to compel a registered person to arbitrate a
whistleblower dispute when there is a statute precluding enforcement of
a predispute arbitration agreement, regardless of whether the statute
is promulgated under federal or state law. FINRA further stated that it
would continue to accept whistleblower claims under a state statute if
the parties agreed to arbitrate the claim, or if a court ordered the
claim to be arbitrated at the forum. Therefore, FINRA declined to make
the requested change.
    Third, the commenter recommended that FINRA include an effective
date in its proposal so that the rule would only be applied
prospectively.
    In its Response Letter, FINRA stated that since Section 922 of the
Dodd-Frank Act invalidates all predispute arbitration agreements
relating to whistleblower disputes, FINRA believed it was inappropriate
to establish a new effective date. Therefore, FINRA declined to make
the requested change.

IV. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change, the
comments received, and FINRA's response to the comments, in particular
FINRA's representation that it would comply with a court's ruling to
consolidate all claims (including whistleblower claims) associated with
a particular case. Based on its review, the Commission finds that the
proposed rule change is consistent with the requirements of the Act and
the rules and regulations thereunder applicable to a national
securities association.\12\ In particular, the Commission finds that
the proposed rule change is consistent with Section 15A(b)(6) of the
Act,\13\ which requires, among other things, that FINRA rules must be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, and, in general, to
protect investors and the public interest.
---------------------------------------------------------------------------

    \12\ In approving this proposed rule change, the Commission has
considered the rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
    \13\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    More specifically, the Commission finds that that the proposed rule
change to align FINRA Rule 13201 with statutes that invalidate
predispute arbitration agreements for whistleblower disputes would
ensure that a dispute arising under a whistleblower statute that
prohibits the use of predispute arbitration agreements would not be
required to be arbitrated.
    While the Commission appreciates the commenter's concern about
FINRA's choice of language, the proposed rule purposefully tracks the
language used in the Dodd-Frank Act.
    For the reasons stated above, the Commission finds that the rule
change is consistent with the Act and the rules and regulations
thereunder.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\14\ that the proposed rule change (SR-FINRA-2011-067) be, and it
hereby is, approved.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin O'Neill,
Deputy Secretary.
[FR Doc. 2012-6386 Filed 3-15-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 209 (Wednesday, October 28, 2020)]
[Notices]
[Pages 68341-68342]
[FR Doc No: 2020-23840]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2019-D-4188]

Tobacco Products: Principles for Designing and Conducting Tobacco
Product Perception and Intention Studies; Draft Guidance for Industry;
Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing the
availability of a draft guidance for industry entitled ``Tobacco
Products: Principles for Designing and Conducting Tobacco Product
Perception and Intention Studies.'' The draft guidance provides
information intended to assist applicants design and conduct tobacco
product perception and intention (TPPI) studies that may be submitted
as part of a modified risk tobacco product application (MRTPA), a
premarket tobacco product application (PMTA), or a substantial
equivalence (SE) report. The draft guidance is intended to discuss a
variety of scientific issues applicants may want to consider as they
design and conduct TPPI studies.

DATES: Submit either electronic or written comments on the draft
guidance by December 28, 2020 to ensure that the Agency considers your
comment on this draft guidance before it begins work on the final
version of the guidance.

ADDRESSES: You may submit comments as follows:

Electronic Submissions

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

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2019-D-4188 for ``Tobacco Products: Principles for Designing and
Conducting Tobacco Product Perception and Intention Studies; Draft
Guidance for Industry; Availability.'' Received comments will be placed
in the docket and, except for those submitted as ``Confidential
Submissions,'' publicly viewable at https://www.regulations.gov or at
the Dockets Management Staff office between 9 a.m. and 4 p.m., Monday
through Friday,<PHONE_NUMBER>.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on https://www.regulations.gov.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852,<PHONE_NUMBER>.
    You may submit comments on any guidance at any time (see 21 CFR
10.115(g)(5)).
    Submit written requests for single copies of this draft guidance to
the Center for Tobacco Products, Food and Drug Administration, Document
Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave., Silver
Spring, MD 20993-0002. Send one self-addressed adhesive label to assist
that office in processing your request or include a fax number to which
the draft guidance may be sent. See the SUPPLEMENTARY INFORMATION
section for information on electronic access to the draft guidance.

FOR FURTHER INFORMATION CONTACT: Paul Hart, Center for Tobacco
Products, Food and Drug Administration, 10903 New Hampshire Ave.,
Document Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave.,
Silver Spring, MD 20993-0002,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    FDA is announcing the availability for public comment of a draft
guidance for industry entitled ``Tobacco Products: Principles for
Designing and Conducting Tobacco Product Perception and Intention
Studies.''
    On June 22, 2009, the President signed the Family Smoking
Prevention and Tobacco Control Act (Pub. L. 111-31) (Tobacco Control
Act) into law. The Tobacco Control Act grants FDA authority to regulate
the manufacture, marketing, and distribution of tobacco products to
protect public health generally and to reduce tobacco use by minors.
The Federal Food, Drug, and Cosmetic Act (FD&C Act) requires new
tobacco products to undergo review and receive an order from FDA before
being

introduced or delivered for introduction into interstate commerce. The
FD&C Act establishes three pathways to market for new tobacco products:
     Submission of a PMTA under section 910(b) of the FD&C Act
(21 U.S.C. 387j(b)) and receipt of a marketing order under section
910(c)(1)(A)(i),
     Submission of a SE report under section 905(j)(1)(A) (21
U.S.C. 387e(j)(1)(A)) and receipt of an SE marketing order, or
     Submission of a request for an exemption from the
requirements of demonstrating SE under section 905(j)(3) and receipt of
an exemption from FDA (implemented at Sec.  1107.1 (21 CFR 1107.1)).
    To introduce or deliver for introduction into interstate commerce a
modified risk tobacco product, there must be in effect an order under
section 911(g) of the FD&C Act (21 U.S.C. 387k(g)) and the applicant
must satisfy any applicable premarket review requirements under section
910 of the FD&C Act.
    The draft guidance is intended to assist applicants design and
conduct TPPI studies that may be submitted as part of an MRTPA, a PMTA,
or a SE report. Conducting TPPI studies can assist applicants
submitting tobacco product applications demonstrate that their product
meets applicable requirements to receive marketing authorization under
the appropriate pathway. For example, TPPI studies can be used to
assess, among other things, individuals' perceptions of tobacco
products, understanding of tobacco product information, and intention
to use tobacco products. The draft guidance is intended to address a
variety of scientific issues applicants may consider as they design and
conduct TPPI studies to support tobacco product applications.

II. Significance of Draft Guidance

    FDA is issuing this draft guidance consistent with FDA's good
guidance practices regulation (21 CFR 10.115). The draft guidance, when
finalized, will represent the current thinking of FDA on designing and
conducting tobacco product perception and intention studies. It does
not establish any rights for any person and is not binding on FDA or
the public. You can use an alternative approach if it satisfies the
requirements of the applicable statutes and regulations.

III. Paperwork Reduction Act of 1995

    This draft guidance refers to previously approved collections of
information found in FDA regulations. These collections of information
are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The
collections of information in Sec.  1107.1(b) and (c) have been
approved under OMB control number 0910-0684. The collections of
information under section 910 of the FD&C Act have been approved under
OMB control number 0910-0768. The collections of information in section
905(j) of the FD&C Act have been approved under OMB control number
0910-0673.

IV. Electronic Access

    Persons with access to the internet may obtain an electronic
version of the draft guidance at either https://www.regulations.gov or
https://www.fda.gov/tobacco-products/products-guidance-regulations/rules-regulations-and-guidance.

    Dated: October 22, 2020.
Lauren K. Roth,
Acting Principal Associate Commissioner for Policy.
[FR Doc. 2020-23840 Filed 10-27-20; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Page 41411]
[FR Doc No: C1-2020-05900]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2018-0074; FRL-10006-88-OAR]
RIN 2060-AT86

National Emission Standards for Hazardous Air Pollutants: Organic
Liquids Distribution (Non-Gasoline) Residual Risk and Technology Review

Correction

63.14  [Corrected]

    In rule document 2020-05900, appearing on pages 40740 through 40791
in the issue of Tuesday, July 7, 2020, make the following corrections.

0
1. On page 40760, in the second column, amendatory instruction 2 d. for
Sec.  63.14 should read as follows:
    ``[ssquf] d. By redesignating paragraphs (h)(102) through (113) as
paragraphs (h)(104) through (115), respectively;''.

Sec.  63.14  Incorporations by reference. [Corrected]

0
2. On the same page, in the same column, the section heading for 63.14
should read as set forth above.

[FR Doc. C1-2020-05900 Filed 7-9-20; 8:45 am]
BILLING CODE 1301-00-D


[Federal Register Volume 77, Number 217 (Thursday, November 8, 2012)]
[Notices]
[Pages 67053-67055]
[FR Doc No: 2012-27289]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68143; File No. SR-NYSE-2012-44]

 Self-Regulatory Organizations; New York Stock Exchange LLC;
Order Granting Approval of Proposed Rule Change Amending Section 907.00
of the Listed Company Manual, Which Describes Certain Complimentary
Products and Services That Are Offered to Certain Issuers

November 2, 2012.

I. Introduction

    On August 30, 2012, the New York Stock Exchange LLC (``NYSE'' 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 to amend Section 907.00 of the Listed Company
Manual (``Manual''), which describes certain complimentary products and
services that are offered to certain issuers. The proposed rule change
was published in the Federal Register on September 18, 2012.\3\ The
Commission did not receive any comments on the proposal. This order
grants approval of the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 67846 (September 12,
2012), 77 FR 57625 (``Notice).
---------------------------------------------------------------------------

II. Description of the Proposal

    Section 907.00 of the Manual sets forth certain complimentary
products and services that are offered to certain currently and newly
listed issuers. According to the Exchange, these products and services
are developed or delivered by NYSE or by a third party for use by NYSE-
listed companies. All listed issuers receive some complimentary
products and services through the NYSE Market Access Center. Certain
tiers of currently listed issuers and newly listed issuers receive
additional products and services.
    Under Section 907.00, a newly listed issuer is defined as a U.S.
issuer conducting an initial public offering (``IPO'') or an issuer
emerging from a bankruptcy, spinoff (where a company lists new shares
in the absence of a public offering), or carve-out (where a company
carves out a business line or division, which then conducts a separate
IPO), but does not include an issuer that transfers its listing from
another U.S. exchange.\4\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 65127 (Aug. 12,
2011), 76 FR 51449, 51450 n. 13 (Aug. 18, 2011) (SR-NYSE-2011-20)
(``Approval Order'').
---------------------------------------------------------------------------

    The Exchange proposes to broaden the definition of newly listed
issuer to mean any U.S. company listing common stock on the Exchange
for the first time, and any non-U.S. company \5\ listing an equity
security \6\ on the Exchange under Section 102.01 or 103.00 of the
Manual for the first time, regardless of whether such U.S. or non-U.S.
company conducts an offering; the definition would continue to exclude
any issuer that transfers its listing from another U.S. securities
exchange.\7\ Under the proposed rule change, the definition of ``newly
listed issuer'' also would mean any U.S. or non-U.S. company emerging
from a bankruptcy, spinoff (where a company lists new shares in the
absence of a public offering), and carve-out (where a company carves
out a business line or division, which then conducts a separate initial
public offering).
---------------------------------------------------------------------------

    \5\ The Exchange also proposes to amend the text of Section
907.00 to refer to ``non-U.S. companies'' rather than ``Foreign
Private Issuers.'' According to the Exchange, this change is non-
substantive. See Notice, supra note 3.
    \6\ The Exchange proposes to define the term ``equity security''
to mean common stock or common share equivalents such as ordinary
shares, New York shares (a type of share used by Canadian
companies), global shares, American Depository Receipts (``ADRs''),
or Global Depository Receipts, and to amend the text of Section
907.00 throughout to change specific references to ADRs to the
broader term ``equity security.'' In its filing, the Exchange noted
that each of these types of securities in the definition of equity
security has been used by non-U.S. companies when listing on the
Exchange.
    \7\ The current text of Section 907.00 states that the
definition of ``newly listed issuer'' excludes an issuer that
transfers its listing from another exchange. In a prior filing, the
Exchange stated that the exclusion applied to transfers from a
national securities exchange, i.e., another U.S. securities
exchange. See supra note 4. According to the Exchange, for purposes
of greater clarity, the text of the Section 907.00 would be amended
to provide specifically that a transfer from a U.S. securities
exchange would be excluded from the definition of newly listed
issuers.
---------------------------------------------------------------------------

    Under the existing rules, the Exchange uses global market value
based on the public offering price for determining the types of
services a newly listed issuer would qualify for. Because the rules
will no longer require an offering to qualify as a newly listed issuer,
the Exchange proposes to amend the text that refers to global market
value based on public offering price. The Exchange proposes to add text
to Section 907.00 that would provide that if a newly listed issuer does
not conduct a public offering, then its global market value will be
determined by the Exchange at the time of listing for purposes of
determining whether the issuer qualifies for Tier A or B.
    The Exchange also proposes to make changes to rules relating to the
products and services available to currently listed issuers. Under
existing rules, the Exchange has two tiers of products and services
that are available to currently listed issuers. Under Tier One, the
Exchange offers market surveillance and Web-hosting products and
services to U.S. issuers that have 270 million or more total shares of
common stock issued and outstanding in all share classes, including and
in addition to Treasury shares, and Foreign Private Issuers that have
270 million or more in ADRs issued and outstanding, each calculated
annually as of December 31 of the preceding year. Under Tier Two, at
each such issuer's election, the Exchange offers either market
analytics or Web-hosting products and services to U.S. issuers that
have 160 million to 269,999,999 total shares of common stock issued and
outstanding in all share classes, including and in addition to Treasury
shares. Tier Two products and services also are offered to Foreign
Private Issuers that have 160 million to 269,999,999 in ADRs issued and
outstanding, each calculated annually as of December 31 of the
preceding year.
    In its filing, the Exchange noted that using December 31 as the
date of qualification is not optimal because it provides issuers with
too little notice of their qualification for Tier One or Tier Two
products and services. It is therefore proposing to amend the rule to
make the date to determine issuers' qualifications as of September 30
of the preceding year. Under the proposal, shortly after September 30,
2012, the Exchange would run the calculations for each issuer and
determine which are eligible for Tier One or Tier Two for calendar year
2013, and so notify the qualifying issuers. According to the Exchange,
this is beneficial because qualifying issuers then would have nearly
three months to select from the available services in their tier for
the following calendar year, and non-qualifying issuers would have
additional time to budget and plan for obtaining the services elsewhere
should they so wish.
    As described above, the Exchange proposes to update references to
ADRs throughout the text of Rule 907.00 to reflect the broader term
``equity security.'' \8\ Thus, the Exchange would use shares of an
equity security issued and outstanding in the U.S. in lieu of ADRs for
non-U.S. companies in determining whether the Tier One and Tier Two
thresholds have been satisfied.
---------------------------------------------------------------------------

    \8\ See supra note 6.

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

    Furthermore, with respect to Tier One offerings, the Exchange
proposes to permit a Tier One issuer to choose market analytics
products and services as an alternative to market surveillance products
and services. Web-hosting products and services would continue to be
offered to Tier One issuers.
    The Exchange also proposes changes to the products and services
available to newly listed issuers. Tiers A and B describe the products
and services available to newly listed issuers. Under existing rules,
Tier A includes issuers with a global market value of $400 million or
more based on the public offering price and Tier B includes issuers
with a global market value of less than $400 million based on the
public offering price.
    With one exception, the specified products and services for newly
listed issuers are offered for 24 months after listing, at which time
the issuers may be eligible for the Tier One or Tier Two products and
services offered to existing issuers. The exception is market
surveillance products and services, which currently are offered to Tier
A issuers for the initial 12 months after listing. Under the current
Manual, those issuers would not be eligible to receive the market
surveillance products and services for the next 12 months, until they
qualified for Tier One status at the end of the 24-month period
following listing. The Exchange proposes to eliminate that 12-month gap
by amending Section 907.00 to provide that if, at the end of the 12-
month period following a new listing, an issuer that has selected
market surveillance products and services meets the qualifications of a
Tier One issuer, then such issuer may continue to receive such services
for an additional 12 months.

III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and
finds that it is consistent with the requirements of Section 6 of the
Act.\9\ Specifically, the Commission believes it is consistent with the
provisions of Sections 6(b)(4) and (5) of the Act,\10\ in particular,
in that it is designed to provide for the equitable allocation of
reasonable dues, fees, and other charges among Exchange members,
issuers, and other persons using the Exchange's facilities, and is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. Moreover, the Commission believes that the
proposed rule change is consistent with Section 6(b)(8) of the Act \11\
in that it does not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f. In approving this 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).
    \10\ 15 U.S.C. 78f(b)(4) and (5).
    \11\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    According to the Exchange, a non-U.S. company that is listing an
equity security for the first time on the Exchange, or is emerging from
a bankruptcy, spinoff, or carve-out, is similarly situated to a U.S.
issuer conducting an IPO or emerging from a bankruptcy, spinoff, or
carve-out, and should be eligible to receive the same products and
services from the NYSE Market Access Center as those U.S. issuers do.
Moreover, the Exchange has further represented that (i) referring to
listing on the Exchange for the first time, rather than the specific
offerings that may occur in conjunction with the listing, and (ii)
using the term ``equity security'' rather than ADRs for a non-U.S.
company, should make the coverage of the Section sufficiently broad to
account for different types of offerings and securities that may occur
with a new listing.\12\ Further, under Section 907, the term ``equity
security'' for purposes of currently listed non-U.S. companies eligible
for products and services would be defined only to include common stock
or common share equivalents, such as ordinary shares, New York shares,
global shares, ADRs, or Global Depository Receipts, which is consistent
with the type of security, common stock, used for currently listed U.S.
companies receiving products and services under Section 907.\13\
Accordingly, the Commission believes that it is consistent with the Act
to treat U.S. and non-U.S. issuers similarly and that the products and
services are equitably allocated among issuers consistent with Section
6(b)(4) and do not unfairly discriminate between issuers consistent
with Section 6(b)(5) of the Act.
---------------------------------------------------------------------------

    \12\ The Commission notes that the Exchange is also proposing to
amend its reference to global market value based on public offering
price to reflect that some listed companies may not conduct a public
offering in connection with a listing. Section 907 would be amended
so that if there is no public offering in connection with a listing
on the Exchange, the Exchange will determine the issuer's global
market value. The Commission believes this change is consistent with
the other changes proposed by the Exchange and approved by the
Commission in this order, consistent with the Act.
    \13\ See also supra note 6.
---------------------------------------------------------------------------

    The Commission also believes that it is consistent with the Act for
the Exchange to give issuers under Tier One the option of receiving
market analytics products and services in addition to market
surveillance services, as well as allow qualifying issuers under Tier A
to continue to receive surveillance products and services for an
additional twelve months. The Exchange has represented that it faces
competition in the market for listing services, and it competes in part
by improving the quality of the services that it offers to listed
companies. According to the Exchange, by offering products and services
on a complimentary basis and ensuring that it is offering the services
most valued by its listed issuers, it improves the quality of the
services that listed companies receive.\14\ Accordingly, the Commission
believes that NYSE's proposal reflects the current competitive
environment for exchange listings among national securities exchanges
and is appropriate and consistent with Section 6(b)(8). Moreover, with
respect to the change to Tier A, the Commission notes that by offering
market surveillance products and services throughout the 24-month
period following listing, rather than just the initial 12 months, the
Exchange should eliminate the interruption in service that would
otherwise occur for issuers that would qualify for Tier One status as
existing issuers at the end of the 24-month period. Further, as to the
additional choice of market analytics products and services for issuers
qualifying under Tier One, the Commission notes that such services are
already permitted for newly listed issuers under Tier A and currently
listed issuers under Tier Two. Therefore, it appears reasonable to
allow such issuers to receive those services if they qualify as a Tier
One issuer. Further, all issuers, both U.S. and non-U.S., that qualify
for services under Tier A and Tier One will be able to avail themselves
of the changes to the products and services being offered under these
tiers.\15\
---------------------------------------------------------------------------

    \14\ The NYSE has also represented that it does not have
exclusive agreements or arrangements with the vendors providing the
products and services, and NYSE may use multiple vendors for the
same type of product or service. Moreover, currently listed and
newly listed companies would not be required to accept the offered
products and services from NYSE, and an issuer's receipt of an NYSE
listing is not conditioned on the issuer's acceptance of such
products and services. Further, the Exchange has represented that,
from time to time, issuers elect to purchase products and services
from other vendors at their own expense instead of accepting the
products and services described above offered by the Exchange.
    \15\ See Approval Order, supra note 4, finding that the existing
tiers are consistent with the Act. In particular, the Approval Order
states that while not all issuers receive the same level of
services, NYSE has stated that trading volume and market activity
are related to the level of services that the listed companies would
use in the absence of complimentary arrangements. The Commission
found, among other things, that ``* * * the products and services
and their commercial value are equitably allocated among issuers
consistent with Section 6(b)(4) of the Act, and the rule does not
unfairly discriminate between issuers consistent with Section
6(b)(5) of the Act.''

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

    The Commission also believes that it is consistent with the Act for
the Exchange to use September 30, instead of December 31, for
determining whether an issuer qualifies for complimentary products and
services under Tier One and Tier Two. The Commission believes that this
change should provide issuers with additional time to either select the
services and products, if any, it qualifies for, as well as provide
sufficient time to select another vendor if the issuer so chooses. The
Commission also notes that certain other proposed changes are merely
technical in nature, such as specifically excluding transfers from
other U.S. exchanges from the definition of a newly listed issuer and
replacing the term ``Foreign Private Issuer'' with ``non-U.S.
companies.'' With respect to excluding transfers from other U.S.
exchanges, the Commission notes that the Exchange, in a prior filing,
had specifically excluded transfers from another national securities
exchange from its definition of ``newly listed issuers,\16\ but did not
codify the exclusion in Section 907. The Commission believes that
codifying this exclusion should make the NYSE's rule more transparent.
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    \16\ See supra note 4.
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\17\ that the proposed rule change (SR-NYSE-2012-44) be, and it
hereby is, approved.
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    \17\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-27289 Filed 11-7-12; 8:45 am]
BILLING CODE 8011-01-P