[Federal Register Volume 84, Number 100 (Thursday, May 23, 2019)]
[Notices]
[Pages 23815-23818]
[FR Doc No: 2019-10753]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85889; File No. SR-NYSE-2019-20]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Proposed Rule Change Amending Section 302 of the
Listed Company Manual To Provide Exemptions for the Issuers of Certain
Categories of Securities From the Obligation To Hold Annual
Shareholders' Meetings

May 17, 2019.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on May 6, 2019, New York Stock Exchange LLC (``NYSE'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Section 302 of the Listed Company
Manual (the ``Manual'') to provide exemptions for the issuers of
certain categories of securities from the obligation to hold annual
shareholders' meetings. The proposed rule change is available on the
Exchange's website at www.nyse.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    Section 302 of the Manual provides that listed companies are
required to hold an annual shareholders' meeting during each fiscal
year.
    Section 303A.00 of the Manual provides that preferred and debt
listings, passive business organizations in the form of trusts (such as
royalty trusts) and derivative and special purpose securities are not
required to comply with certain of the corporate governance
requirements set forth in Section 303A.\4\ Section 303A.00 does not
exclude the obligation to hold an annual meeting pursuant to Section
302 from those requirements with which such issuers must comply.
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    \4\ To the extent that Rule 10A-3 under the Act applies to (i)
companies listing only preferred or debt securities, or (ii) passive
business organizations, such entities are required to comply with
the requirements of Section 303A.06 (Audit Committee) and certain
provisions of 303A.12(b) (Certification Requirements).
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    Holders of non-voting preferred and debt securities, securities of
passive business organizations (such as royalty trusts) and derivative
and special purpose securities either do not have the right to elect
directors at annual meetings or have the right to elect directors only
in very limited circumstances. For example, holders of non-voting
preferred securities may have the right to temporarily elect directors
if dividends on such securities have not been paid for a specified
period of time. Absent such special circumstances, in no event do
holders of the securities listed above elect directors on an annual
basis. Despite the fact that there is no matter with respect to which
holders of these securities have an annual voting right under state law
or their governing documents, NYSE rules currently do not exclude the
issuers of

such securities from the requirement that they hold an annual meeting
of shareholders.
    The Exchange now proposes to amend Section 302 to provide that
issuers of these securities would not be required to hold an annual
meeting. Specifically, Section 302 as amended would specify that the
annual meeting requirement does not apply to companies whose only
securities listed on the Exchange are non-voting preferred and debt,
passive business organizations (such as royalty trusts), or securities
listed pursuant to Rules 5.2(j)(2) (Equity Linked notes), 5.2(j)(3)
(Investment Company Units), 5.2(j)(4) (Index-Linked Exchangeable
Notes), 5.2(j)(5) (Equity Gold Shares), 5.2(j)(6) (Equity Index-Linked
Securities, Commodity-Linked Securities, Currency-Linked Securities,
Fixed Income Index-Linked Securities, Futures-Linked Securities and
Multifactor Index-Linked Securities), 8.100 (Portfolio Depositary
Receipts), 8.200 (Trust Issued Receipts), 8.201 (Commodity-Based Trust
Shares), 8.202 (Currency Trust Shares), 8.203 (Commodity Index Trust
Shares), 8.204 (Commodity Futures Trust Shares), 8.300 (Partnership
Units), 8.400 (Paired Trust Shares), 8.600 (Managed Fund Shares) and
8.700 (Managed Trust Securities). The Exchange is also amending the
rule text to make clear that, if an issuer also lists common stock or
voting preferred stock, or their equivalent, such issuer must still
hold an annual meeting for the holders of that common stock or voting
preferred stock, or their equivalent.\5\
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    \5\ This proposed clarifying language is identical to that used
in the NYSE Arca and NASDAQ annual meeting rule. See NYSE Arca Rule
5.3-E(e) and NASDAQ Marketplace Rules IM-5620.
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    The Exchange notes that the listing rules of NYSE Arca, Inc.
(``NYSE Arca''), the NASDAQ Stock Market LLC (``NASDAQ''), Cboe BZX
Exchange, Inc. (``Cboe BZX'') and NYSE American LLC (``NYSE American'')
all provide exclusions for issuers of ETFs and other derivative
securities products from the annual meeting requirements in their
rules.\6\ The following are rules for derivative and special purpose
securities listed on the Exchange and, in each case, a reference to a
rule of either NYSE Arca, NYSE American or NASDAQ providing for the
listing of similar securities on NYSE Arca, NYSE American or NASDAQ
that are explicitly excluded from the annual meeting requirement on
such exchange:
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    \6\ See Exchange Act Release No. 83324 (SR-NYSEArca-2018-31)
(May 24, 2018); 83 FR 25076 (May 31, 2018) (approving [sic]
amendments to NYSE Arca Rule 5.3(e)-E). See also NASDAQ Marketplace
Rules IM-5620, Cboe BZX Rule 14.10, Interpretations and Policies 15;
and NYSE American Company Guide Section 704, Commentary .01.
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     NYSE Rule 5.2(j)(2) (Equity Linked Notes): NYSE Arca Rule
5.2-E(j)(2) (Equity Linked Notes) and NYSE American Company Guide
Section 107B (Equity Linked Term Notes);
     NYSE Rule 5.2(j)(3) (Investment Company Units): NYSE Arca
Rule 5.2-E(j)(3) (Investment Company Units) and NYSE American Rule
1002A (Index Fund Shares);
     NYSE Rule 5.2(j)(4) (Index-Linked Exchangeable Notes):
NYSE Arca Rule 5.2-E(j)(4) (Index Linked Exchangeable Notes) and NYSE
American Company Guide Section 107C (Index Linked Exchangeable Notes);
     NYSE Rule 5.2(j)(5) (Equity Gold Shares): NYSE Arca Rule
5.2-E(j)(5) (Equity Gold Shares) and NASDAQ Marketplace Rule 5711(b)
(Equity Gold Shares);
     NYSE Rule 5.2(j)(6) (Equity Index-Linked Securities,
Commodity-Linked Securities, Currency-Linked Securities, Fixed Income
Index-Linked Securities, Futures-Linked Securities and Multifactor
Index-Linked Securities): NYSE Arca Rule 5.2-E(j)(6) (Index Linked
Securities) and NYSE American Company Guide Sections 107D (Index-Linked
Securities, 107E (Commodity-Linked Securities), 107F (Currency-Linked
Securities), 107G (Fixed Income-Linked Securities), 107H (Futures-
Linked Securities), and 107I (Combination-Linked Securities);
     NYSE Rule 8.100 (Portfolio Depositary Receipts): NYSE Arca
Rule 8.100-E (Portfolio Depositary Receipts) and NYSE American Rule
1000A [sic] (Portfolio Depository Receipts);
     NYSE Rule 8.200 (Trust Issued Receipts): NYSE Arca Rule
8.200-E (Trust Issued Receipts) and NYSE American Rule 1202 (Trust
Issued Receipts);
     NYSE Rule 8.201 (Commodity-Based Trust Shares): NYSE Arca
Rule 8.201-E (Commodity Based Trust Shares) and NYSE American Rule
1200A (Commodity Based Trust Shares);
     NYSE Rule 8.202 (Currency Trust Shares): NYSE Arca Rule
8.202-E (Currency Trust Shares) and NYSE American Rule 1202B (Currency
Trust Shares);
     NYSE Rule 8.203 (Commodity Index Trust Shares): NYSE Arca
Rule 8.203-E (Commodity Index Trust Shares) and NASDAQ Marketplace Rule
5711(f) (Commodity Index Shares);
     NYSE Rule 8.204 (Commodity Futures Trust Shares): NYSE
Arca Rule 8.204-E (Commodity Futures Trust Shares) and NASDAQ
Marketplace Rule 5711(g)(Commodity Futures Trust Shares);
     NYSE Rule 8.300 (Partnership Units): NYSE Arca Rule 8.300-
E (Partnership Units) and NYSE American Rule 1502 (Partnership Units);
     NYSE Rule 8.400 (Paired Trust Shares): NYSE Arca Rule
8.400-E (Paired Trust Shares) and NYSE American Rule 1402 (Paired Trust
Shares);
     NYSE Rule 8.600 (Managed Fund Shares): NYSE Arca Rule
8.600-E;
     NYSE Rule 8.700 (Managed Trust Securities): NYSE Arca Rule
8.700-E.
    Shareholders of ETFs and derivative securities products listed on
the Exchange receive regular disclosure documents describing the
pricing mechanism for their securities and detailing how they can value
their holdings. Moreover, the net asset value of the categories of ETFs
and other derivative securities products listed above is determined by
the market price of each fund's underlying securities or other
reference asset. Because shareholders can value their investments on an
ongoing basis, the Exchange believes that there is less need for
shareholders to engage management at an annual meeting. In addition,
while holders of such securities may have the right to vote in certain
limited circumstances, they do not have the right to vote on the annual
election of a board of directors, further eliminating the need for an
annual meeting.
    Notwithstanding the existence of an exemption from the Exchange's
annual shareholder meeting requirement as proposed to be amended,
issuers of listed securities will remain subject to any applicable
state and federal securities laws with respect to the holding of annual
meetings; as a result, an issuer that lists one or more of the types of
securities that the Exchange proposes to exclude from its annual
meeting requirement may still be required to hold annual shareholder
meetings in accordance with such state and federal securities laws. In
addition, the Exchange notes that issuers of NYSE-listed securities,
including the types of securities that the Exchange proposes to exclude
from its annual meeting requirement, remain subject to state and
federal securities laws that may require other types of shareholder
meetings, such as special meetings of shareholders. For example,
exchange-traded funds are registered under, and remain subject to, the
Investment Company Act of 1940 (``Investment Company Act''), which
imposes various shareholder-voting requirements that may be applicable
to such funds.\7\
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    \7\ See, e.g., Section 16 of the Investment Company Act, which
requires, among other things, an investment company's initial board
of directors to be elected by the shareholders at an annual or
special meeting. 15 U.S.C. 80a-16(a).

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    Lastly, the Exchange notes that any security listed under Section
703.19 of the Manual (``Other Securities'') that has the attributes of
common stock or voting preferred stock, or their equivalents will still
be subject to the Exchange's annual meeting requirements.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act,\8\ in general, and furthers the
objectives of Section 6(b)(5) of the Exchange Act,\9\ in particular in
that it is designed to promote just and equitable principles of trade,
to foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities, to remove impediments to
and perfect the mechanism of a free and open market and a national
market system, and, in general, to protect investors and the public
interest and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed amendment is consistent
with the protection of investors, as the holders of non-voting
preferred stock, bonds, the listed shares of passive business
organizations (such as royalty trusts), ETFs and certain other
derivative and special purpose securities do not have voting rights
with respect to the election of directors except in very limited
circumstances as required by state law or their governing documents. In
addition, the net asset value of the categories of ETFs and other
derivative securities products that the Exchange proposes to exclude
from its annual meeting requirement is determined by the market price
of each fund's underlying securities or other reference asset.
Shareholders of such ETFs and derivative securities products listed on
the Exchange receive regular disclosure documents describing the
pricing mechanism for their securities and detailing how they can value
their holdings. Accordingly, holders of such securities can value their
investment on an ongoing basis. Because of these factors, the Exchange
believes there is no need for the issuers of such securities to hold
annual shareholder meetings.
    Further, notwithstanding the existence of an exemption from the
Exchange's annual shareholder meeting requirement as proposed to be
amended, issuers of listed securities will remain subject to any
applicable state and federal securities laws with respect to the
holding of annual meetings; as a result, an issuer that lists one or
more of the types of securities that the Exchange proposes to exclude
from its annual meeting requirement may still be required to hold
annual shareholder meetings in accordance with such state and federal
securities laws. In addition, the Exchange notes that issuers of NYSE-
listed securities, including the types of securities that the Exchange
proposes to exclude from its annual meeting requirement, remain subject
to state and federal securities laws that may require other types of
shareholder meetings, such as special meetings of shareholders.
    Lastly, the Exchange notes that any security listed under Section
703.19 of the Manual (``Other Securities'') that has the attributes of
common stock or voting preferred stock, or their equivalents will still
be subject to the Exchange's annual meeting requirements.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The proposed amendments will
not impose any burden on competition, as they simply conform the
Exchange's rules to those of its competitors in the market for the
listing of the specified types of securities.

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

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

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

    Within 45 days of the date of publication of this notice in the
Federal Register or up [sic] to 90 days (i) as the Commission may
designate if it finds such longer period to be appropriate and
publishes its reasons for so finding or (ii) as to which the self-
regulatory organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2019-20 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2019-20. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSE-2019-20 and should be submitted on
or before June 13, 2019.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-10753 Filed 5-22-19; 8:45 am]
 BILLING CODE 8011-01-P


SF 83 SUPPORTING STATEMENT ENVIRONMENTAL PROTECTION AGENCY STANDARDS OF PERFORMANCE NSPS SUBPART NN PHOSPHATE ROCK PLANTS 1. Identification of the Information Collection 1( a) Title of the Information Collection ICR for NSPS Subpart NN  Phosphate Rock Plants Subject to New Source Performance Standards 1( b) Short Characterization/ Abstract The New Source Performance Standards ( NSPS) for phosphate rock plants were proposed on September 21, 1979 and promulgated on April 16, 1982. These standards apply to the following facilities in phosphate rock plants with capacities greater than 4 tons/ hour: dryers, calciners, grinders, and ground rock handling and storage facilities, ( except those facilities producing or preparing phosphate rock solely for consumption in elemental phosphorus production), commencing construction, modification or reconstruction after the date of proposal. This information is being collected to assure compliance with 40 CFR Part 60 subpart NN.

Owners or operators of the affected facilities described must make the following one timeonly reports: notification of the date of construction or reconstruction; notification of the anticipated and actual dates of startup; notification of any physical or operational change to an existing facility which may increase the regulated pollutant emission rate; notification of demonstration of the continuous monitoring system ( CMS); notification of the date of the initial performance test; and the results of the initial performance test. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring is inoperative. These notifications, reports and records are required, in general, of all sources subject to NSPS.

Any owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least two years following the date of such measurements, maintenance reports, and records.

Sixteen sources are currently subject to these standards, and it is estimated that an additional two sources per year will become subject to the standards in the next three years.  2

2. Need for and Use of the Collection 2( a) Need/ Authority for the Collection The EPA is charged under Section 111 of the Clean Air Act, as amended, to establish standards of performance for new stationary sources that reflect:

. . . application of the best technological system of continuous emissions reduction which ( taking into consideration the cost of achieving such emissions reduction, or any non air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated ( Section 111( a)( l)).

The Agency refers to this charge as selecting the best demonstrated technology ( BDT). Section 111 also requires that the Administrator review and, if appropriate, revise such standards every four years. In addition, Section 114( a) states that:

. . . the Administrator may require any owner or operator subject to any requirement of this Act to ( A) establish and maintain such records, ( B) make such reports, ( C) install, use and maintain such monitoring equipment or methods ( in accordance with such methods at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and ( D) sample such emissions, ( E) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical, ( F) submit compliance certifications, and ( G) provide such other information as he may reasonably require.

In the Administrator's judgment, particulate matter emissions from phosphate rock plants cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. Therefore, NSPS were promulgated for this source category at 40 CFR Part 60 subpart NN.

2( b) Practical Utility/ Users of the Data The control of emissions of particulate matter from phosphate rock plants requires not only the installation of properly designed equipment, but also the operation and maintenance of that equipment. Emissions of particulate matter from phosphate rock plants are the result of operation of the calciners, dryers, grinders, and ground rock handling and storage facilities. These standards rely on the capture of particulate emissions by a baghouse or wet scrubber.

All reports are sent to the delegated State or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA Regional Office. Notifications are used to inform the Agency or delegated authority when a source becomes subject to the standard. The reviewing authority may then inspect the source to check if the pollution control devices are properly installed and operated. Performance test reports are needed as these are the  3

Agency's record of a source's initial capability to comply with the emission standard and note the operating conditions ( flow rate and pressure drop) under which compliance was achieved. The quarterly reports are used for problem identification, as a check on source operation and maintenance, and for compliance determinations. The standard also requires semiannual reporting of deviations from monitored scrubber pressures or opacity, as these are good indicators of the source's compliance status. EPA reduced the reporting frequency for this information from quarterly to semiannual in a December 1990 Federal Register. This reduction in reporting frequency is in response to OMB's previous questions regarding the need for quarterly versus semiannual reporting. The information generated by the monitoring, recordkeeping and reporting requirements described above is used by the Agency to ensure that facilities affected by the NSPS continue to operate the control equipment used to achieve compliance with the NSPS. Notification of construction and startup indicates to enforcement personnel when a new affected facility has been constructed and therefore is subject to the standards. In order to ensure compliance with these standards, adequate recordkeeping is necessary. In the absence of such information, enforcement personnel would be unable to determine whether the standards are being met on a continuous basis, as required by the Clean Air Act.

The information collected from recordkeeping and reporting requirements is also used for targeting inspections and is of sufficient quality to be used as evidence in court.

3. Nonduplication, Consultations, and Other Collection Criteria 3( a) Nonduplication The recordkeeping and reporting requested is required under 40 CFR Part 60 subpart NN. If the standard has not been delegated the information is sent to the appropriate EPA Regional Office. Otherwise, the information is sent directly to the delegated State or Local Agency. If a State or Local Agency has adopted their own similar regulation to implement NSPS subpart NN, a copy of the report submitted to the State or local Agency can be sent to the Administrator in lieu of the report required by the Federal Standard. Therefore, no duplication exists.

3( b) Public Notice Required Prior to ICR Submission to OMB An announcement of a public comment period for the renewal of this ICR was published in the Federal Register on September 15, 2000 ( 65 FR 55955).

3( c) Consultations In developing the standards, several States, a number of State agencies, owners and operators of affected facilities, and other interested parties were contacted. No comments were received on the burden published in the Federal Register.

3( d) Effects of Less Frequent Collection  4

If the frequency of information collection was further reduced, the main consequence would be that the chances of detecting poor operation and maintenance of control equipment would decrease. Less frequent information collection would decrease the margin of assurance that facilities are continuing to meet the required standards. Requirements for information gathering and recordkeeping are useful techniques to ensure that good operation and maintenance practices are applied.

3( e) General Guidelines None of the reporting or recordkeeping requirements contained in 40 CFR Part 60 or otherwise pertinent to this request violate any of the regulations established by OMB in 5 CFR 1320.6.

3( f) Confidentiality The required information consists of emissions data and other information that have been determined not to be private. However, any information submitted to the Agency for which a claim of confidentiality is made will be safeguarded according to the Agency policies set forth in Title 40, Chapter 1, Part 2, subpart B  Confidentiality of Business Information ( see 40 CFR 2; 41 FR 36902, September 1, 1976; amended by 43 FR 40000, September 8, 1978; 43 FR 42251, September 20, 1978; 44 FR 17674, March 23, 1979).

3( g) Sensitive Questions None of the reporting or recordkeeping requirements contained in 40 CFR Part 60 or otherwise pertinent to this request contain sensitive questions.

4. The Respondents and the Information Requested 4( a) Respondents/ SIC Codes The respondents of the recordkeeping and reporting requirements are Phosphate Rock Plants, SIC Code 1479 ( NAIC Code 212393) with a rated capacity in excess of 4 tons/ hour and which commenced construction modification, or reconstruction after September 21, 1979.

4( b) Information Requested ( i) Data Items All of the data in this ICR that is recorded and reported is required by 40 CFR Part 60 subpart NN, as indicated.

Provide notification of  5

 construction/ reconstruction [ 60.7( a)( 1)]  anticipated startup [ 60.7( a)( 2)]  actual startup [ 60.7( a)( 3)]  initial performance test [ 60.8( d)]  demonstration of continuous monitoring system [ 60.7( a)( 5)]  physical or operational change [ 60.7( a)( 4)]

Report on  initial performance test [ 60.8( a)]  excess emissions [ 60.403( f)]

Record  startups, shutdowns, malfunctions, periods where the continuous monitoring system is inoperative [ 60.7( b)]  performance tests [ 60.7( d)]  install, calibrate, maintain, and operate a device to measure phosphate rock feed to any dryer, calciner, or grinder [ 60.403( d)]  install, calibrate, maintain, and operate CMS for opacity [ 60.403( a)], unless a wet scrubber is installed  if a wet scrubber is installed, install, calibrate, maintain, and operate CMS for pressure loss across scrubber and liquid supply [ 60.403( c)]

Records are required to be retained for two years.

( ii) Respondent Activities  read instructions  install, calibrate, maintain, and operate CMS for opacity, or for pressure drop and liquid supply pressure for wet scrubber  perform initial performance test, Reference Method 9 test ( if opacity), and repeat performance tests if necessary  write the notifications and reports listed above  enter information required to be recorded above.

5. The Information Collected Agency Activities, Collection Methodology, and Information Management.

5( a) Agency Activities EPA conducts the following activities in connection with the acquisition, analysis, storage, and distribution of the information required under 40 CFR subpart NN:

 observes initial and repeat performance tests  6

 reviews notifications and reports, including excess emissions reports, required to be submitted by industry  audits facility records 5( b) Collection Methodology and Management Following notification of startup, the reviewing authority might inspect the source to check if the pollution control devices are properly installed and operated. Performance test reports are used by the Agency to discern a source's initial capability to comply with the emission standard and note the operating conditions under which compliance was achieved. Data obtained during periodic visits by Agency personnel from records maintained by the respondents are tabulated and published for internal Agency use in compliance and enforcement programs. The semiannual reports are used for problem identification, as a check on source operation and maintenance, and for compliance determinations.

Information contained in the reports is entered into the Aerometric Information Retrieval System ( AIRS) Facility Subsystem ( AFS) which is operated and maintained by EPA's Office of Air Quality Planning and Standards. The AFS is EPA's database for the collection, maintenance, and retrieval of compliance and annual emission inventory data for over 100,000 industrial and government owned facilities. EPA uses AFS for tracking air pollution compliance and enforcement by local and State regulatory agencies, EPA Regional Offices and Headquarters. EPA can edit, store, retrieve and analyze the data via PC terminals.

The records required by this NSPS must be retained by the owner or operator for two years.

5( c) Small Entity Flexibility The recordkeeping and reporting requirements were selected within the context of a small collection of process equipment and reflect the burden on small businesses. To the extent that larger businesses can use economies of scale to reduce their burden, the overall burden will be reduced. However, even though the recordkeeping and reporting requirements are the same for small and large businesses, the Agency considers these requirements the minimum needed to ensure compliance, and therefore cannot reduce them further for small businesses.

5( d) Collection Schedule The specific frequency for each information collection activity within this request is shown on Table 2.  7

6. Estimating the Burden and Cost of the Collection Table 2 documents the computation of individual burdens for each of the recordkeeping and reporting requirements applicable to the industry. The individual burdens are expressed under standardized headings believed to be consistent with the concept of burden under the Paperwork Reduction Act. The standard does not specify reporting or recordkeeping methodology. Therefore, the information may be collected, to the maximum extent practicable, in a manner consistent and compatible with the respondent's existing reporting and recordkeeping requirements. Where appropriate, specific tasks and major assumptions have been identified. Responses to this information collection are mandatory. The Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

6( a) Estimates of Respondent Burden The only type of industry costs associated with the information collection activity in the standards are labor costs. The labor estimates used in Table 2 were derived from standard estimates based on EPA's experience with other standards. The average annual burden to industry over the next three years from these recordkeeping and reporting requirements is estimated at 3002 person hours. These hours are based on Agency studies and background documents from the development of the standards or test methods, Agency knowledge and experience with the NSPS program, the previously approved ICR, and any comments received about time to prepare reports.

6( b) Estimates of Respondent Costs ( i) Estimating Labor Costs This ICR uses a technical labor rate of $ 56.99 per hour. This rate is from the United States Department of Commerce Bureau of Labor Statistics, March 2000, Table 10: Employment Costs for Private Industry by Occupational and Industry Group. The rate from column 1: Total compensation was adjusted using the BLS Employer Cost Index values for 2001 The year 2000 total compensation for technical workers was $ 26.35, which adjusted by a factor of 1.03 ( the 2001: 2000 cost index ratio) yielded a March 2001 labor rate of $ 27.14 per hour. This was then adjusted by a 110 percent to account for overhead and benefits, providing the hourly rate of $ 56.99 per hour used to estimate total labor costs in this ICR. The average annual labor burden to industry over the next three years of the ICR is estimated to be $ 171,067.

( ii) Estimating Capital and Operations and Maintenance Costs The type of industry costs associated with the information collection activity in the standards are labor and opacity continuous emissions monitors. The capital start up costs are one time costs when a facility becomes subject to the standard. The annual capital start up cost for  8

this regulation is $ 73,800. This is based on two new sources per year multiplied by $ 36,900 per opacity monitoring device. The annual operations and maintenance cost is estimated to be $ 252,650. This is based on an average of 31 existing sources multiplied by $ 8,150 for upkeep of the monitoring device. These costs are based on the assumption that all affected entities will face the costs of the more expensive monitoring system ( opacity) rather than the less expensive monitoring system ( pressure drop) which would occur if wet scrubbers are used as a control device. Therefore, this estimate likely overstates the actual annual burden to industry. The total respondent costs have been calculated on the addition of the capital start up costs and the annual operations and maintenance costs. The average annual burden for capital and operations and maintenance costs to industry over the next three years of the ICR is estimated to be $ 326,450.

( iii) Capital/ Start up vs. Operating and Maintenance ( O& M) Costs Monitoring Device Start up Cost ($) Annual O& M Costs ($) Opacity Monitor $ 36,900 $ 8,150 6( c) Estimating Agency Burden and Cost The only Federal costs are user costs associated with analysis of the reported information. Publication and distribution of the information are part of the Aerometric Information Retrieval System ( AIRS) Facility Subsystem ( AFS) which is operated and maintained by the EPA's Office of Air Quality Planning and Standards with the result that no Federal costs can be directly attributed to the ICR. Examination of records to be maintained by the respondents will occur incidentally as part of the periodic inspection of sources, which is part of EPA's overall compliance and enforcement program.

The average annual Federal Government cost during the 3 years of the ICR is estimated to be $ 10,328. This cost is based on an average wage of $ 27.17 per hour and a 110 percent overhead rate. Details upon which this estimate is based appear in Table 1. Breakdown of costs by cost category is presented as follows:

Average Direct Personnel Cost ( including overhead) $ 10,328 Other Direct Costs $ 1,246 Total $ 11,574 6( d) Estimating the Respondent Universe and Total Burden and Costs The number of existing respondents subject to 40 CFR Part 60 subpart NN is estimated to be 28. The number of new respondents subject to 40 CFR Part 60 subpart NN is estimated to be two per year, an assumption carried forward from the last ICR renewal The total annual labor  9

costs are $ 171,124 and total annual capital and O& M costs to the regulated entity are $ 326,450 Details upon which the estimate of labor costs is based appear in Table 2: Industry Burden.

6( e) Bottom Line Burden Hours And Cost Tables See Tables 1 and 2.

6( f) Reasons for Change in Burden The increase in burden from the most recently approved ICR is due to an adjustment. The number of plants is assumed to continue to increase at the rate presumed in the previous ICR at 2 per year, for an average total of 31 plants during the period of this ICR. The total reporting requirement for new plants is determined to remain constant at 97 hours. Excess emission reporting burden is estimated to increase incrementally from 160 to 192, based on the average number of existing facilities increasing from 25 to 31. Recordkeeping burden is estimated to increase incrementally from 2,188 hours to 2,714, based on an increase in the average number of facilities to 31. Finally, the capital/ start up and operating and maintenance ( O& M) costs associated with installing and operating continuous monitoring systems, which was calculated for the previous ICR at $ 257,100, was increased to $ 326,450 for this ICR based on an adjustment for inflation for costs and an increase in the estimated number of facilities.

6( g) Burden Statement Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to: review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information ( OEI), U. S. Environmental Protection Agency, Mail code 2822, 1200 Pennsylvania Avenue, Washington, D. C. 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Officer for EPA. Include the EPA ICR number and OMB control number in any correspondence.  10

Part B of the Supporting Statement This part is not applicable because no statistical methods were used in collecting this information. TABLE 1: AVERAGE ANNUAL EPA RESOURCE REQUIREMENT FOR PHOSPHATE ROCK INDUSTRY NSPS SUBPART NN Activity ( A) EPA hr/ Occurrence ( B) Occurrence s / yr ( C) a EPA hr/ yr ( D) Respondent s / yr ( E) b EPA h/ yr Initial Performance Test New Plant 24 1 24 2 48 Repeat Performance Test c New Plant 24 0.2 4.8 2 9.6 Report Review New Plant Notification of Construction 2 1 2 2 4 Notification of anticipated startup 0.5 1 0.5 2 1 Notification of actual startup 0.5 1 0.5 2 1 Notification of initial test 0.5 1.2 0.6 2 1.2 Review test results 8 1.2 9.6 2 19.2 Notification of demonstration of CMS 0.5 1 0.5 2 1 Excess emission reports d 4 2 8 12 96 TOTAL ANNUAL HOURS 181 Travel expenses ( 1 person x 2 plants/ yr x 3 days/ plant x $ 81 per diem) + ($ 380/ round trip x 2 plants/ yr) = $ 1,246/ year Salary ( 1 person x 181hr/ year x 57.06/ hr e) = $ 10,328 TOTAL ANNUAL COST TO EPA = $ 11,574 a AxB= C b CxD= E c Assume 20 percent of initial performance tests are repeated due to failure d Assume that 40% of affected facilities must submit excess emissions reports e Assume an hourly wage of $ 27.17 plus 110 percent overhead, which equals $ 57.06 Table 2. Annual Burden of Reporting and Recordkeeping Requirements for Phosphate Rock Industry B NSPS Subpart NN ( A)

Hours per Occurrence ( B) Occurrences/

respondent/

year ( C= AxB)

Hours/ Respondent/

year ( D) Respondents per year ( E CxD)

Hours per year ( F) Cost per yearc 1. APPLICATIONS N/ A   N/ A

2. SURVEY AND STUDIES N/ A   N/ A

3. REPORTING REQUIREMENTS A. Read Instructionsa 1 1 1 2 2 $ 114 B. Required Activities Initial performance testd 28 1 28 2 56 $ 3,191 Repeat of performance testde 28 0.2 5.6 2 11.2 $ 638 Reference Method 9 test 4 1 4 2 8 $ 456 C. Create Information Included in 3B D. Gather Existing Information Included in 3E E. Write Report Notification of construction/

modification 2 1 2 2 4 $ 228 Notification of anticipated startup 2 1 2 2 4 $ 228 Notification of actual startup 2 1 2 2 4 $ 228 Notification of initial performance test 2 1 2 2 4 $ 228 Notification of demonstration CMS test 2 1 2 2 4 $ 228 Report of performance test Included in 3B Excess opacity or scrubber malfunction reportsb 8 2 16 12 192 $ 10,942 SUBTOTALS 289.2 $ 16,482 Table 2. Burden to Industry, NSPS Subpart NN ( continued)

( A)

Hours per Occurrence ( B) Occurrences/

respondent/

year ( C= AxB)

Hours/ Respondent/

year ( D) Respondents per year ( E CxD)

Hours per year ( F) Cost per yearc 4. RECORDKEEPING REQUIREMENTS A, Read Instructions B. Plan Activities C. Implement Activities D. Develop Record System E. Time to Enter Information Record of operating parametersfg 0.25 350 87.5 31 2712.5 $ 154,585 F. Train Personnel G. Audits TOTAL ANNUAL BURDEN 3001.7 $ 171,067 a Assume a total of 2 newly affected facilities per year.

b Assume 40% of affected facilities submit excess emissions reports c Assume an hourly wage of $ 27.14 plus 110 percent overhead costs, which equals $ 56.99 This amount was multiplied by the hours per year in Column E.

d Includes burden associated with monitoring phosphate feed rate e Assume 20 percent of initial performance tests must be repeated due to failure.

f Assume operation 350 days per year as specified in the NSPS review document.

g Midpoint of ICR. 28 + ( 2 new per years x 3 years) / 2 = 31


[Federal Register Volume 77, Number 177 (Wednesday, September 12, 2012)]
[Notices]
[Pages 56247-56250]
[FR Doc No: 2012-22396]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67794; File No. SR-CBOE-2012-068]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Suspension of and Order Instituting Proceedings To
Determine Whether To Approve or Disapprove a Proposed Rule Change To
Amend the Customer Large Trade Discount

September 6, 2012.

I. Introduction

    On July 11, 2012, Chicago Board Options Exchange, Incorporated
(``CBOE'' or ``Exchange'') filed with the

Securities and Exchange Commission (the ``Commission''), pursuant to
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange
Act'') \1\ and Rule 19b-4 thereunder,\2\ a rule change relating to the
Customer Large Trade Discount (the ``Discount'').
---------------------------------------------------------------------------

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

    CBOE proposed to amend the Discount for any executing Trading
Permit Holder (``TPH'') whose affiliate \3\ is the issuer of one or
more securities, the combined total asset value of which is $1 billion
or greater, that are based on or track the performance of VIX
futures.\4\ CBOE designated the proposed rule change as immediately
effective upon filing with the Commission pursuant to Section
19(b)(3)(A) of the Exchange Act.\5\ The Commission published notice of
filing of the proposed rule change in the Federal Register on July 26,
2012.\6\ To date, the Commission has not received any comment letters
on the Exchange's proposed rule change.
---------------------------------------------------------------------------

    \3\ CBOE defines ``affiliate'' as ``a person who, directly or
indirectly, controls, is controlled by, or is under common control
with, such other person.'' CBOE Rule 1.1(j). CBOE Rule 1.1(k)
defines ``control'' as ``the power to exercise a controlling
influence over the management or policies of a person, unless such
power is solely the result of an official position with such person.
Any person who owns beneficially, directly or indirectly, more than
20% of the voting power in the election of directors of a
corporation, or more than 25% of the voting power in the election of
directors of any other corporation which directly or through one or
more affiliates owns beneficially more than 25% of the voting power
in the election of directors of such corporation, shall be presumed
to control such corporation.'' CBOE Rule 1.1(ff) defines ``person''
as ``an individual, partnership (general or limited), joint stock
company, corporation, limited liability company, trust or
unincorporated organization, or any governmental entity or agency or
political subdivision thereof.''
    \4\ CBOE Volatility Index[supreg] (``VIX'') measures market
expectations of near term volatility conveyed by S&P 500 index
option prices. Options on VIX offer a way for market participants to
buy and sell option volatility. VIX option prices reflect the
market's expectation of the VIX level at expiration and are
exclusively traded on CBOE. See http://www.cboe.com/micro/VIX/VIXoptionsFAQ.aspx.
    \5\ 15 U.S.C. 78s(b)(3)(A). Although the proposed rule change
was effective upon filing, CBOE indicated that the fee change would
take effect on August 1, 2012. See Notice, infra note 6, at 43880.
    \6\ See Securities Exchange Act Release No. 67481 (July 20,
2012) 77 FR 43879 (``Notice'').
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(3)(C) of the Exchange Act, the Commission
hereby is: (1) Temporarily suspending the proposed rule change; and (2)
instituting proceedings to determine whether to approve or disapprove
the proposal.

II. Summary of the Proposed Rule Change

    The Exchange's proposal amended the Discount, which caps regular
customer transaction fees on a per-order basis for large customer
trades.\7\ Specifically, CBOE's proposal lowered the transaction fee
cap in VIX options from 10,000 contracts to 7,500 contracts per order
in a qualifying calendar month but only for TPHs who have an affiliate
that issues one or more securities, the combined total value of which
is $1 billion or greater, that are based on or track the performance of
VIX futures (a ``qualifying affiliate'').\8\ Pursuant to that recent
change, incremental volume above 7,500 contracts in a single order is
not assessed a regular customer transaction fee for TPHs with such an
affiliate. TPHs that do not have a qualifying affiliate do not qualify
for the lower fee cap and continue to be assessed the regular customer
transaction fee up to the first 10,000 contracts in VIX options.
---------------------------------------------------------------------------

    \7\ Prior to the proposal, CBOE charged all TPHs transaction
fees on the first 10,000 contracts in a single order in VIX options.
For example, if a broker-dealer submitted a single order for 12,000
VIX contracts, the broker-dealer was only charged a transaction fee
on the first 10,000 contracts and the remaining 2,000 contracts were
not charged a transaction fee. The Discount also caps customer
transaction fees up to the first 10,000 contracts for SPX; up to the
first 5,000 contracts for other index options; and up to the first
3,000 contracts for ETF, ETN and HOLDRs options. Threshold levels
for the other products subject to the Discount were not changed by
this rule filing.
    \8\ On the first business day following the end of a calendar
month, the Exchange will multiply the reported net asset value of
each security that is based on or tracks the performance of VIX
futures (as reported on the final calendar day of the month) by the
amount of outstanding shares in that security to determine the total
asset value of that security. See Notice, supra note 6, at 43880.
The Exchange will then amalgamate the total asset values of all the
securities that are based on or track the performance of VIX futures
issued by the same issuer to determine if such issuer reaches the $1
billion threshold. See id. If it does, the affiliated TPH would
qualify for the 7,500 contract breakpoint for that month.
---------------------------------------------------------------------------

III. Suspension of the CBOE Proposal

    Pursuant to Section 19(b)(3)(C) of the Exchange Act,\9\ at any time
within 60 days of the date of filing of a proposed rule change pursuant
to Section 19(b)(1) of the Exchange Act,\10\ the Commission summarily
may temporarily suspend the change in the rules of a self-regulatory
organization if it appears to the Commission that such action is
necessary or appropriate in the public interest, for the protection of
investors, or otherwise in furtherance of the purposes of the Exchange
Act.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(C).
    \10\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

    The Commission believes it is appropriate in the public interest to
temporarily suspend the proposal to solicit comment on and evaluate
further the statutory basis for CBOE's proposal to lower the fee-cap
for only certain TPHs, specifically those TPHs that have a qualifying
affiliate.
    In justifying its proposal, the Exchange stated that the proposal
is reasonable because it allows TPHs with a qualifying affiliate to pay
lower fees for large customer VIX options transactions.\11\ The
Exchange also argued that the proposed rule change is equitable \12\
and not unfairly discriminatory \13\ ``because it is intended to
incentivize the creation and issuance of securities that are based on
or track the performance of VIX futures, which provides more trading
opportunities for all market participants.'' \14\ The Exchange further
stated that the lower threshold for qualifying TPHs encourages such
TPHs to bring more customer VIX options orders to the Exchange \15\ and
the resulting increased volume and liquidity would benefit all market
participants that trade VIX options.\16\ The Exchange did not in its
filing specifically analyze the burden, if any, of the fee change on
competition.\17\ For example, if both TPH 1 and TPH 2
bring a 12,000 contract order to CBOE, but only TPH 1 has a
qualifying affiliate, CBOE's analysis did not address why it is not
unfairly discriminatory or a burden on competition for TPH 1,
but not TPH 2, to qualify for the lower discount level.
---------------------------------------------------------------------------

    \11\ See Notice, supra note 5, at 43880. See also Section
6(b)(4) of the Exchange Act, which requires that the rules of a
national securities exchange ``provide for the equitable allocation
of reasonable dues, fees, and other charges among its members and
issuers and other persons using its facilities.''
    \12\ See Section 6(b)(4) of the Exchange Act, which requires
that the rules of a national securities exchange ``provide for the
equitable allocation of reasonable dues, fees, and other charges
among its members and issuers and other persons using its
facilities.''
    \13\ See Section 6(b)(5) of the Exchange Act, which requires,
among other things, that the rules of a national securities exchange
not be ``designed to permit unfair discrimination between customers,
issuers, brokers, or dealers.''
    \14\ See Notice, supra note 5, at 43880.
    \15\ See id.
    \16\ See id.
    \17\ See Section 6(b)(8) of the Exchange Act, which requires
that the rules of a national securities exchange ``not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of [the Exchange Act].'' See also Item 4 of Form 19b-4
(``Self-Regulatory Organization's Statement on Burden on Competition
(``Form 19b-4 Information'')). 17 CFR 249.819.
---------------------------------------------------------------------------

    In temporarily suspending the fee change, the Commission intends to
further assess whether the resulting fee-cap disparity between TPHs
trading VIX options is consistent with the statutory

requirements applicable to a national securities exchange under the
Exchange Act. In particular, the Commission will assess whether the
proposed rule change satisfies the standards under the Exchange Act and
the rules thereunder requiring, among other things, that an exchange's
rules provide for the equitable allocation of reasonable fees among
members, issuers, and other persons using its facilities; not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers; and do not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of the Exchange
Act.\18\
---------------------------------------------------------------------------

    \18\ See 15 U.S.C. 78f(b)(4), (5) and (8).
---------------------------------------------------------------------------

    Therefore, the Commission finds that it is appropriate in the
public interest,\19\ for the protection of investors, and otherwise in
furtherance of the purposes of the Exchange Act, to temporarily suspend
the proposed rule change.
---------------------------------------------------------------------------

    \19\ For purposes of temporarily suspending the proposed rule
change, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

IV. Proceedings to Determine Whether to Approve or Disapprove the CBOE
Proposal

    In addition to temporarily suspending the proposal, the Commission
also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
\20\ and 19(b)(2) of the Exchange Act \21\ to determine whether the
Exchange's proposed rule change should be approved or disapproved.
Further, pursuant to Section 19(b)(2)(B) of the Exchange Act,\22\ the
Commission hereby is providing notice of the grounds for disapproval
under consideration. The Commission believes it is appropriate to
institute proceedings at this time in view of the significant legal and
policy issues raised by the proposal. Institution of proceedings does
not indicate, however, that the Commission has reached any conclusions
with respect to the issues involved.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, Section 19(b)(3)(C) of the Exchange
Act requires that the Commission institute proceedings under Section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
    \21\ 15 U.S.C. 78s(b)(2).
    \22\ 15 U.S.C. 782(b)(2)(B). Section 19(b)(2)(B) of the Exchange
Act also provides that proceedings to determine whether to
disapprove a proposed rule change must be concluded within 180 days
of the date of publication of notice of the filing of the proposed
rule change. See id. The time for conclusion of the proceedings may
be extended for up to 60 days if the Commission finds good cause for
such extension and publishes its reasons for so finding. See id.
---------------------------------------------------------------------------

    As discussed above, pursuant to CBOE's proposal, TPHs that have a
qualifying affiliate (i.e., that issues securities valued at $1 billion
or greater that are based on or track the performance of VIX futures)
pay a lower transaction fee for large VIX customer options orders as
compared to TPHs that do not have such an affiliate. The Exchange Act
and the rules thereunder require that an exchange's rules, among other
things, provide for the equitable allocation of reasonable fees among
members, issuers, and other persons using its facilities; not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers; and do not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of the Exchange
Act. The Commission solicits comment on whether the proposal is
consistent with these Exchange Act standards and whether CBOE has
sufficiently met its burden in presenting a statutory analysis of how
its proposal meets these standards.
    In particular, the grounds for disapproval under consideration
include whether CBOE's proposal is consistent with the following
sections of the Exchange Act:
     Section 6(b)(4) of the Exchange Act, which requires that
the rules of a national securities exchange ``provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other persons using its facilities;''\23\
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

     Section 6(b)(5) of the Exchange Act, which requires, among
other things, that the rules of a national securities exchange not be
``designed to permit unfair discrimination between customers, issuers,
brokers, or dealers;'' \24\ and
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

     Section 6(b)(8) of the Exchange Act, which requires that
the rules of a national securities exchange ``not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of [the Exchange Act].'' \25\
---------------------------------------------------------------------------

    \25\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    The Commission intends to assess whether CBOE's proposal is
consistent with these and other Exchange Act standards.

V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by October 3, 2012.
Rebuttal comments should be submitted by October 17, 2012. Although
there do not appear to be any issues relevant to approval or
disapproval which would be facilitated by an oral presentation of
views, data, and arguments, the Commission will consider, pursuant to
Rule 19b-4, any request for an opportunity to make an oral
presentation.\26\
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Exchange Act
grants the Commission flexibility to determine what type of
proceeding--either oral or notice and opportunity for written
comments--is appropriate for consideration of a particular proposal
by a self-regulatory organization. See Securities Acts Amendments of
1975, Report of the Senate Committee on Banking, Housing and Urban
Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess.
30 (1975).
---------------------------------------------------------------------------

    The Commission asks that commenters address the sufficiency and
merit of the Exchange's statements in support of the proposal, in
addition to any other comments they may wish to submit about the
proposed rule change. In particular, the Commission seeks comment on
the following:
     As noted above, Section 6(b)(4) of the Exchange Act,
requires that the rules of a national securities exchange ``provide for
the equitable allocation of reasonable dues, fees, and other charges
among its members and issuers and other persons using its facilities.''
The Commission seeks comment on whether it is an equitable allocation
of reasonable dues to charge lower transaction fees to TPHs that have a
qualifying affiliate for VIX customer options orders as compared to
TPHs that do not have such an affiliate;
     Section 6(b)(5) of the Exchange Act requires, among other
things, that the rules of a national securities exchange not be
``designed to permit unfair discrimination between customers, issuers,
brokers or dealers.'' The Commission seeks comment on whether
discrimination on the basis of whether a TPH has an affiliation with an
issuer of securities that are based on or track the performance of VIX
futures is a ``fair'' basis for discrimination among its participants
with respect to the fees charged by the Exchange for the execution of
customer orders in VIX options;
     The Commission seeks comment on whether the filing was
sufficient under Section 19(b) of the Exchange Act in addressing issues
regarding the basis for discrimination between a TPH with a qualifying
affiliate and a TPH that is not so affiliated, and whether the basis
for such discrimination is fair, and why or why not;
     Section 6(b)(8) of the Exchange Act requires that the
rules of a national

securities exchange ``not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of [the
Exchange Act].'' The Commission seeks comment on whether the filing was
sufficient in addressing issues regarding the potential effects of the
proposed fee change on competition, and what, if any, impact the
proposed fee change might have on competition; and
     Whether the proposed fee change will affect competition in
the market for VIX options or the broader market, and if so, how and
what type of impact might it have.
    Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule changes, including whether the
proposed rule change is consistent with the Exchange Act. Comments may
be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2012-68 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-CBOE-2012-68. The file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-CBOE-2012-68 and should be
submitted on or before October 3, 2012. Rebuttal comments should be
submitted by October 17, 2012.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Exchange Act,\27\ that File No. SR-CBOE-2012-68, be and hereby is,
temporarily suspended. In addition, the Commission is instituting
proceedings to determine whether the proposed rule change should be
approved or disapproved.
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78s(b)(3)(C).
    \28\ 17 CFR 200.30-3(a)(57) and (58).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-22396 Filed 9-11-12; 8:45 am]
BILLING CODE 8011-01-P


Comment Info: =================

General Comment:Ms. Lynn Beasley
%Superfund Docket
U. S. Environmental Protection Agency
Mail Code 5202T
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460

	RE:	Docket ID No. EPA-HQ-SFUND-2005-0013
Petition for Exemption from EPCRA and CERCLA Reporting
Requirements 	for Ammonia from Poultry Operations

Dear Ms. Beasley:

This letter is in response to EPA?s request for comments from State Emergency
Planning Commissions (SERC?s) and local Emergency Planning Committees
(LEPC?s) for the referenced docket item.  Specifically, EPA requested SERC?s
and LEPC?s comment on the usefulness of ammonia release reports from farmers
at poultry operations covered in the petition.

Franklin County LEPC is well aware that routine agricultural operations, such as
livestock production and application of commercial fertilizers, release ammonia at
generally low concentrations on an ongoing basis.

We would not anticipate undertaking any response to such notifications since the
releases are routine, and not amenable to any immediate corrective or mitigative
measures.  Moreover, given the substantial number of poultry and other livestock
production operations in our area, a significant number of such notifications would
strain our resources and unnecessarily divert our attention from potentially serious
emergencies to which we must be prepared to respond.

We hope these comments are useful to EPA in evaluating the petition.  Should
you have any question or comments, please contact me.

Sincerely,

Jones Beasley
Franklin County EMA/911 Director