[Federal Register: November 23, 2009 (Volume 74, Number 224)]
[Proposed Rules]
[Page 61077-61078]
[DOCID:fr23no09-22]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R01-OAR-2009-0031; A-1-FRL-8974-6]

Approval of the Clean Air Act, Section 112(l), Authority for
Hazardous Air Pollutants: Perchloroethylene Air Emission Standards for
Dry Cleaning Facilities: Commonwealth of Massachusetts Department of
Environmental Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to approve Massachusetts Department of
Environmental Protection's (``MassDEP'') request to implement and
enforce the amended 310 CMR 70.00 Environmental Results Program
(``ERP'') Certification and the amended 7.26(10)-(16) Perchloroethylene
Air Emissions Standards for Dry Cleaning Facilities (together referred
to as the ``amended Dry Cleaner ERP'') as a partial substitution for
the amended National Emissions Standards for Hazardous Air Pollutants
for Perchloroethylene Dry Cleaning Facilities (``Dry Cleaning
NESHAP''), as it applies to area sources. This approval would make the
Massachusetts Department of Environmental Protection's amended rules
federally enforceable. Major sources would remain subject to the
Federal Dry Cleaning NESHAP. In addition, dry cleaners installed in a
building with a residence between December 21, 2005 and July 13, 2006
would remain subject to the Federal Dry Cleaning NESHAP.

DATES: Written comments must be received on or before December 23,
2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2009-0031 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R01-OAR-2009-0031'', Ida McDonnell, U.S.
Environmental Protection Agency, EPA New England Regional Office, One
Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023.
    5. Hand Delivery or Courier: Deliver your comments to: Ida
McDonnell, Acting Manager, Air Permits, Toxics and Indoor Programs
Unit, Office of Ecosystem Protection, U.S. Environmental Protection
Agency, EPA New England Regional Office, One Congress Street, 11th
floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted
during the Regional Office's normal hours of operation. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding legal holidays.
    Please see the direct final rule which is located in the Rules
Section of this Federal Register for detailed instructions on how to
submit comments. EPA will forward copies of all submitted comments to
the Massachusetts Department of Environmental Protection.

FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and
Indoor Programs Unit, Office of Ecosystem Protection, U.S.
Environmental Protection Agency, EPA New England Regional Office, One
Congress Street, Suite 1100 (CAP), Boston, MA 02114-2023, telephone
number<PHONE_NUMBER>, fax number<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the Final Rules Section of this Federal
Register, EPA is approving the Commonwealth of Massachusetts' Section
112(l) submittal as a direct final

rule without prior proposal because the Agency views this as a
noncontroversial submittal and anticipates no adverse comments. A
detailed rationale for the approval is set forth in the direct final
rule. If no adverse comments are received in response to this action
rule, no further activity is contemplated. If EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. EPA will not institute a second comment period. Any
parties interested in commenting on this action should do so at this
time. Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
    For additional information, see the direct final rule which is
located in the Rules Section of this Federal Register.

    Dated: October 15, 2009.
Ira W. Leighton,
Acting Regional Administrator, EPA-New England.
[FR Doc. E9-27819 Filed 11-20-09; 8:45 am]


[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Notices]
[Pages 74086-74088]
[FR Doc No: 2011-30811]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65816; File No. SR-BATS-2011-048]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Modify
Exchange Rule 11.18 Relating to Trading Pauses Due to Extraordinary
Market Volatility

November 23, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on November 22, 2011, BATS Exchange, Inc. (the ``Exchange'' or
``BATS'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing with the Commission a proposal to amend Rule
11.18, entitled ``Trading Halts Due to Extraordinary Market
Volatility.''
    The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.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 Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant parts of such
statements.

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

1. Purpose
    The Exchange proposes to amend Rule 11.18 to exclude all rights and
warrants from the single stock circuit breaker under the rule. The
Commission approved Rule 11.18(d) and Interpretation and Policy .05 to
Rule 11.18 (the ``Trading Pause Rule'') on a pilot basis on June 10,
2010 to provide for trading pauses in individual securities due to
extraordinary market volatility (``Trading Pause'') in all securities
included within the S&P 500[supreg] Index (``S&P 500'') (``Pause
Pilot'').\3\ The Exchange noted in its filing to adopt the Trading
Pause Rule that during the Pause Pilot period it would continue to
assess whether additional securities need to be added and whether the
parameters of Rule 11.18 would need to be modified to accommodate
trading characteristics of different securities. The Exchange
subsequently received approval to add to the Pause Pilot the securities
included in the Russell 1000[supreg] Index (``Russell 1000'') and a
specified list of Exchange Traded Products (``ETPs'').\4\
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    \3\ The Commission approved the Pause Pilot for all equities
exchanges and FINRA. See Securities Exchange Act Release No. 62252
(June 10, 2010), 75 FR 34186 (June 16, 2010) (File Nos. SR-BATS-
2010-014; SR-EDGA-2010-01; SR-EDGX-2010-01; SR-BX-2010-037; SR-ISE-
2010-48; SR-NYSE-2010-39; SR-NYSEAmex-2010-46; SR-NYSEArca-2010-41;
SR-NASDAQ-2010-061; SR-CHX-2010-10; SR-NSX-2010-05; and SR-CBOE-
2010-047) and Securities Exchange Act Release No. 62251 (June 10,
2010), 75 FR 34183 (June 16, 2010) (SR-FINRA-2010-025).
    \4\ The Commission approved the addition to the Pause Pilot of
the securities included in the Russell 1000 and ETPs, where
applicable, for all equities exchanges and FINRA. See Securities
Exchange Act Release No. 62884 (September 10, 2010), 75 FR 56618
(September 16, 2010) (File Nos. SR-BATS-2010-018; SR-BX-2010-044;
SR-CBOE-2010-065; SR-CHX-2010-14; SR-EDGA-2010-05; SR-EDGX-2010-05;
SR-ISE-2010-66; SR-NASDAQ-2010-079; SR-NYSE-2010-49; SR-NYSEAmex-
2010-63; SR-NYSEArca-2010-61; and SR-NSX-2010-08 and Securities
Exchange Act Release No. 62883 (September 10, 2010), 75 FR 56608
(September 16, 2010) (SR-FINRA-2010-033). The Exchange submitted a
proposed rule change shortly after the addition of the Russell 1000
securities and ETPs to extend the operation of the Pause Pilot,
which was set to expire on December 10, 2010, until April 11, 2011.
Securities Exchange Act Release No. 63497 (December 9, 2010), 75 FR
78315 (December 15, 2010) (SR-BATS-2010-037). On March 31, 2011, the
Exchange submitted a proposed rule change to further extend the
Pause Pilot until the earlier of August 11, 2011 or the date on
which a limit up/limit down mechanism to address extraordinary
market volatility, if adopted, applies. Securities Exchange Act
Release No. 64207 (April 6, 2011), 76 FR 20424 (April 12, 2011) (SR-
BATS-2011-011).

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    On June 23, 2011, the Commission approved proposed rule changes of
the Exchanges to amend certain of their respective rules to expand the
Pause Pilot to include all remaining NMS stocks (``Phase III
Securities''), which included rights and warrants.\5\ Unlike the
original Pause Pilot securities, the amended Trading Pause Rule applies
wider percentage price moves to the Phase III Securities before a
trading pause is triggered.\6\ The changes to the Trading Pause Rule
became effective on August 8, 2011.
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    \5\ See Securities Exchange Act Release No. 64735 (June 23,
2011), 76 FR 38243 (June 29, 2011) (SR-BATS-2011-016, et al.).
    \6\ Under amended rules, a pause is triggered by a 30% or more
price move in a Phase III Security priced at $1 or higher, and by a
50% or more price move to such a security priced less than $1. The
price of a security is based on the closing price on the previous
trading day, or, if no closing price exists, the last sale reported
to the Consolidated Tape on the previous trading day.
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    Over 25% of the trading pauses have occurred in rights and warrants
since adoption of the Pause Pilot. Further, there has been a
significant increase in trading pauses involving rights and warrants
since the implementation of the Phase III Securities, with such pauses
representing approximately 52% [sic] all trading pauses occurring
through the end of August 2011. Rights and warrants trade on equity
exchanges, but are closely related to call options. Rights and warrants
entitle owners to purchase shares of stock at predetermined prices
subject to various timing and other conditions. Like options, the
prices of rights and warrants are affected by the price of the
underlying stock as well as other factors, particularly the volatility
of the stock. As a consequence, the prices of rights and warrants may
move more dramatically than the prices of the underlying stocks even
when the rights and warrants (and the underlying stock) are trading in
an orderly manner. This difference in trading behavior may result in a
scenario whereby the rights and warrants trigger the circuit breaker
under the Trading Pause Rule and are subject to a trading pause, even
while the underlying stock continues to trade. This can be particularly
true of rights and warrants that have low prices. Accordingly, the
Exchange is proposing to exclude rights and warrants from the trading
pause under the Trading Pause Rule.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Securities Exchange Act of 1934 (the ``Act''),\7\ in general, and
furthers the objectives of Section 6(b)(5),\8\ in particular, in that
it is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, and to remove impediments to and perfect
the mechanism of a free and open market and a national market system.
The proposed rule change also is designed to support the principles of
Section 11A(a)(1) \9\ of the Act in that it seeks to ensure fair
competition among brokers and dealers and among exchange markets. The
Exchange believes that the proposed rule meets these requirements
because it excludes certain securities from the rule's coverage that
are prone to triggering pauses because of their unique characteristics.
These securities are unique in that they may move more dramatically
than the prices of the underlying stocks to which they are related even
when both securities are trading in an orderly manner. As such, the
securities that are subject to this proposal may trigger the circuit
breaker under the Trading Pause Rule and be subject to a trading pause,
even while the underlying security continues to trade. Although there
is little benefit in pausing trading in these securities, such pauses
sequester regulatory resources that are better applied to the review of
trading pauses in other securities that have a greater impact on the
national market system.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
    \9\ 15 U.S.C. 78k-1(a)(1).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change imposes
any burden on competition.

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

    The Exchange has neither solicited nor received written comments on
the proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \12\ and Rule 19b-
4(f)(6)(iii) thereunder.\13\
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    \10\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's intent to file the proposed rule change along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \14\ normally
does not become operative for 30 days after the date of filing.
However, pursuant to Rule 19b-4(f)(6)(iii) \15\ the Commission may
designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing.
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    \14\ 17 CFR 240.19b-4(f)(6).
    \15\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest.
Including rights and warrants in the pilot program which may trigger a
circuit breaker and be subject to a trading pause, even while the
underlying security continues to trade, provides little benefit and has
the potential to create confusion among investors. Excluding rights and
warrants from the pilot program should minimize investor confusion that
could result from temporary trading pauses in these

securities. For this reason, the Commission designates the proposed
rule change as operative upon the date of this Notice.\16\
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    \16\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

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 No. SR-BATS-2011-048 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 No. SR-BATS-2011-048. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of 10
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 available publicly. All
submissions should refer to File No. SR-BATS-2011-048 and should be
submitted on or before December 21, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-30811 Filed 11-29-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 201 (Thursday, October 17, 2019)]
[Notices]
[Pages 55644-55648]
[FR Doc No: 2019-22594]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87276; File No. SR-NASDAQ-2019-084]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
To Amend The Nasdaq Options Market LLC (``NOM'') Pricing Schedule at
Options 7, Section 2

October 10, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 27, 2019, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III, below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend The Nasdaq Options Market LLC
(``NOM'') Pricing Schedule at Options 7, Section 2, titled ``Nasdaq
Options Market--Fees and Rebates.''
    The text of the proposed rule change is available on the Exchange's
website at http://nasdaq.cchwallstreet.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 Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

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

1. Purpose
    The Exchange proposes to amend NOM's Pricing Schedule at Options 7,
Section 2, titled ``Nasdaq Options Market--Fees and Rebates.''
Specifically, the Exchange proposes to amend the Tier 5 NOM Market
Maker Rebate to Add Liquidity in Penny Pilot Options.
Description of Proposed NOM Market Maker Pricing
    The purpose of the proposed rule change is to incentivize Market
Makers to add liquidity on the Exchange. Today, NOM offers Market Maker
Rebates to Add Liquidity in Penny Pilot Options. There are currently 6
tiers of Rebates to Add Liquidity.\3\ This proposal seeks to amend Tier
5 of the NOM Market Maker Rebates to Add Liquidity in Penny Pilot
Options, which currently pays a $0.40 per contract rebate to a
Participant that adds NOM Market Maker liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options of above 0.30% of total industry
customer equity and ETF option ADV contracts per day in a month and
qualifies for the Tier 6 Customer and/or Professional Rebate to Add
Liquidity in Penny Pilot Options.
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    \3\ See NOM Pricing Schedule at Options 7, Section 2(1).
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    The Exchange proposes to increase the Tier 5 Market Maker Rebate to
Add Liquidity in Penny Pilot Options from $0.40 to $0.44 per contract.
Further, the Exchange proposes to amend the first requirements to
obtain a Tier 5 Market Maker Rebate to Add Liquidity. The Exchange
proposes to amend the current rule text to require a Participant to add
NOM Market Maker liquidity in Penny Pilot Options and/or Non-Penny
Pilot Options of above 0.40% of total industry customer equity and ETF
option ADV contracts per day in a month This amendment increases the
amount of total industry customer equity and ETF options ADV contracts
per day in a month from 0.30% to 0.40%. In addition to the
aforementioned requirement, Tier 5 additionally currently requires, as
a second requirement, that a Participant qualify for the Tier 6 \4\
Customer and/or

Professional Rebate to Add Liquidity in Penny Pilot Options. The
Exchange proposes to remove this requirement to qualify for the Tier 6
Customer and/or Professional Rebate to Add Liquidity in Penny Pilot
Options and instead require, as the second part of the overall Tier 5
requirements, that a Participant transact in all securities through one
or more of its Nasdaq Market Center MPIDs that represent 0.40% or more
of Consolidated Volume (``CV'') \5\ which adds liquidity in the same
month on The Nasdaq Stock Market.\6\ This particular requirement is
intended to incentivize Participants to transact a greater volume on
The Nasdaq Stock Market in order to qualify for the Tier 5 rebate on
NOM. As proposed, the Tier 5 Market Maker Rebate to Add Liquidity in
Penny Pilot Options requirement would provide.
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    \4\ Tier 6 of the Customer and/or Professional Rebate to Add
Liquidity in Penny Pilot Options requires that, ``Participant adds
Customer, Professional, Firm, Non-NOM Market Maker and/or Broker-
Dealer liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.80% or more of total industry customer equity and
ETF option ADV contracts per day in a month, or Participant adds:
(1) Customer and/or Professional liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options of 0.20% or more of total industry
customer equity and ETF option ADV contracts per day in a month, and
(2) has added liquidity in all securities through one or more of its
Nasdaq Market Center MPIDs that represent 1.00% or more of
Consolidated Volume in a month or qualifies for MARS (defined
below).''
    \5\ Consolidated Volume shall mean the total consolidated volume
reported to all consolidated transaction reporting plans by all
exchanges and trade reporting facilities during a month in equity
securities, excluding executed orders with a size of less than one
round lot. For purposes of calculating Consolidated Volume and the
extent of an equity member's trading activity, expressed as a
percentage of or ratio to Consolidated Volume, the date of the
annual reconstitution of the Russell Investments Indexes shall be
excluded from both total Consolidated Volume and the member's
trading activity.
    \6\ In calculating total volume, the Exchange would add the
Participant's total volume transacted on The Nasdaq Stock Market in
a given month across its Nasdaq Market Center MPIDs which adds
liquidity, and will divide this number by the total industry
Consolidated Volume.
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    Participant adds NOM Market Maker liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options of above 0.40% of total industry
customer equity and ETF option ADV contracts per day in a month and
transacts in all securities through one or more of its Nasdaq Market
Center MPIDs that represent 0.40% or more of Consolidated Volume
(``CV'') which adds liquidity in the same month on The Nasdaq Stock
Market.
    Both the requirement to add 0.40% of total industry customer equity
and ETF option ADV contracts per day in a month and the requirement to
transact in all securities through one or more of its Nasdaq Market
Center MPIDs that represent 0.40% or more of Consolidated Volume
(``CV''), as specified, are necessary to achieve the proposed increased
rebate of $0.44 per contract. This proposal would provide participants
with additional opportunities to earn an increased Tier 5 NOM Market
Maker rebate, and will encourage Participants to send order flow to
both the options and equity markets to receive the rebate. This
proposal is designed as a means to improve market quality by providing
Participants with an incentive to increase their provision of liquidity
on the Exchange's equity and options markets.
    The Exchange also proposes to add a new note to Options 7, Section
2 of the Pricing Schedule which provides that NOM Participants that
qualify for the Tier 5 NOM Market Maker Rebate to Add Liquidity in
Penny Pilot Options and add NOM Market Maker liquidity in Penny Pilot
Options and/or Non-Penny Pilot Options of above 0.50% of total industry
customer equity and ETF option ADV contracts per day in a month, will
receive a $0.46 per contract rebate to add liquidity in Penny Pilot
Options as Market Maker in lieu of the Tier 5 rebate. The Exchange
notes that in comparison to proposed Tier 5 qualifications, which
require 0.40% of total industry customer equity and ETF option ADV
contracts per day in a month and pays a proposed $0.44 per contract
rebate, this incentive would pay an increased rebate of $0.46 per
contract for 0.50% of total industry customer equity and ETF option ADV
contracts per day in a month, in lieu of the Tier 5 rebate. The
Exchange believes that this incentive will attract additional liquidity
to NOM to the benefit of all market participants who may interact with
that order flow.
Applicability to and Impact on Participants 7
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    \7\ On May 21, 2019, the SEC Division of Trading and Markets
(the ``Division'') issued fee filing guidance titled ``Staff
Guidance on SRO Rule Filings Relating to Fees'' (``Guidance'').
Within the Guidance, the Division noted, among other things, that
the purpose discussion should address ``how the fee may apply
differently (e.g., additional cost vs. additional discount) to
different types of market participants (e.g., market makers,
institutional brokers, retail brokers, vendors, etc.) and different
sizes of market participants.'' See Guidance (available at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees).
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    The Exchange believes that increasing the NOM Market Maker Tier 5
Rebate to Add Liquidity in Penny Pilot Options from $0.40 to $0.44 per
contract as well as requiring a greater amount of total industry
customer equity and ETF options ADV contracts per day in a month (from
0.30% to 0.40%) and also replacing the current criteria to qualify for
the Tier 6 Customer and/or Professional Rebate to Add Liquidity in
Penny Pilot Options with the requirement to transact in all securities
through one or more of its Nasdaq Market Center MPIDs that represent
0.40% or more of Consolidated Volume (``CV'') which adds liquidity in
the same month on The Nasdaq Stock Market will attract greater volume
to both NOM and The Nasdaq Stock Market. Any NOM Market Maker may
obtain the Tier 5 rebate provided the qualifications are met. The
Exchange notes that Market Makers have certain obligations \8\ on NOM,
unlike other market participants. Market Maker are a source of
liquidity. The proposed amendments are generally designed to attract
additional order flow to the Exchange by incentivizing NOM Market
Makers. Greater liquidity benefits all market participants by providing
more trading opportunities and attracting greater participation by
market makers. An increase in the activity of these market participants
in turn facilitates tighter spreads.
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    \8\ Pursuant to Chapter VII (Market Participants), Section 5
(Obligations of Market Makers), in registering as a market maker, an
Options Participant commits himself to various obligations.
Transactions of a Market Maker in its market making capacity must
constitute a course of dealings reasonably calculated to contribute
to the maintenance of a fair and orderly market, and Market Makers
should not make bids or offers or enter into transactions that are
inconsistent with such course of dealings. Further, all Market
Makers are designated as specialists on NOM for all purposes under
the Act or rules thereunder. See Chapter VII, Section 5.
---------------------------------------------------------------------------

    Furthermore, the additional incentive to receive an even greater
Tier 5 rebate of $0.46 per contract to add liquidity in Penny Pilot
Options as Market Maker, provided the NOM Participant qualified for the
Tier 5 NOM Market Maker Rebate to Add Liquidity in Penny Pilot Options
and added NOM Market Maker liquidity in Penny Pilot Options and/or Non-
Penny Pilot Options of above 0.50% of total industry customer equity
and ETF option ADV contracts per day in a month, will further
incentivize NOM Market Makers to add liquidity to NOM. These incentives
are intended to benefit all NOM market participants who will be able to
interact with additional liquidity which this incentive attracts to the
Exchange.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\9\ in general, and furthers the objectives of Sections
6(b)(4) and 6(b)(5) of the Act,\10\ in particular, in that it provides
for the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility, and is
not designed to permit unfair

discrimination between customers, issuers, brokers, or dealers. The
proposal is also consistent with Section 11A of the Act relating to the
establishment of the national market system for securities. Moreover,
the Exchange believes that its proposal complies with Commission
guidance on SRO fee filings that the Commission Staff issued on May 21,
2019.\11\
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4) and (5).
    \11\ See Guidance, supra note 7. Although the Exchange believes
that this filing complies with the Guidance, the Exchange does not
concede that the standards set forth in the Guidance are consistent
with the Exchange Act and reserves its right to challenge those
standards through administrative and judicial review, as
appropriate.
---------------------------------------------------------------------------

The Proposal Is Reasonable
    The Exchange's proposed amendments to Options 7, Section 2 relating
to the Tier 5 NOM Market Maker Rebate to Add Liquidity in Penny Pilot
Options are reasonable in several respects. As a threshold matter, the
Exchange is subject to significant competitive forces in the market for
options transaction services that constrain its pricing determinations
in that market. The fact that this market is competitive has long been
recognized by the courts. In NetCoalition v. Securities and Exchange
Commission, the D.C. Circuit stated as follows: ``[n]o one disputes
that competition for order flow is `fierce.' . . . As the SEC
explained, `[i]n the U.S. national market system, buyers and sellers of
securities, and the broker-dealers that act as their order-routing
agents, have a wide range of choices of where to route orders for
execution'; [and] `no exchange can afford to take its market share
percentages for granted' because `no exchange possesses a monopoly,
regulatory or otherwise, in the execution of order flow from broker
dealers'. . . .'' \12\
---------------------------------------------------------------------------

    \12\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

    Numerous indicia demonstrate the competitive nature of this market.
For example, clear substitutes to the Exchange exist in the market for
options transaction services. The Exchange is one of several options
venues to which market participants may direct their order flow, and it
represents a small percentage of the overall market. Competing options
exchanges offer similar options functionality, with varying pricing
schedules. Within this environment, market participants can freely and
often do shift their order flow among the Exchange and competing venues
in response to changes in their respective pricing schedules.\13\
---------------------------------------------------------------------------

    \13\ The Exchange perceives no regulatory, structural, or cost
impediments to market participants shifting order flow away from it
as a result of this rule change.
---------------------------------------------------------------------------

    Within the foregoing context, the proposal represents a reasonable
attempt by the Exchange to increase its liquidity and market share
relative to its competitors. The Exchange believes that its proposed
rebate is a reasonable attempt to achieve this end as this rebate
represents competitive pricing as compared to other options markets.
Market participants have a number of choices in deciding where to
direct their options orders. Options exchanges offer different markets
offering incentives and rebates to market participants to lower
transaction fees. With this proposal, the Exchange is attempting to
attract additional order flow to both NOM and The Nasdaq Stock Market.
The Exchange may be unsuccessful in its initial attempt to attract
order flow with the proposed rebate.
NOM Market Maker Rebates
    With respect to the proposed Tier 5 NOM Market Maker rebate
amendment, the Exchange believes that increasing the Tier 5 Market
Maker Rebate to Add Liquidity in Penny Pilot Options from $0.40 to
$0.44 per contract while also amending the qualifications for the Tier
5 rebate is reasonable. The Exchange believes that increasing the
volume requirement for NOM Market Maker liquidity in Penny Pilot
Options and/or Non-Penny Pilot Options, from above 0.30% to above 0.40%
of total industry customer equity and ETF options ADV contracts per day
in a month, will attract additional liquidity to NOM. Further, the
proposal to amend the second part of the Tier 5 rebate requirement by
eliminating the requirement that a Participant qualify for the Tier 6
Customer and/or Professional Rebate to Add Liquidity in Penny Pilot
Options \14\ and instead require a Participant transact in all
securities through one or more of its Nasdaq Market Center MPIDs that
represent 0.40% or more of Consolidated Volume (``CV'') which adds
liquidity in the same month on The Nasdaq Stock Market, will also
attract liquidity to NOM and also The Nasdaq Stock Market.
Specifically, the new second requirement for the Tier 5 rebate is
intended to incentivize Participants to transact greater volume on The
Nasdaq Stock Market in order to qualify for the Tier 5 rebate on NOM.
Because the Exchange requires a Participant to comply with both the
first requirement,\15\ to add NOM Market Maker liquidity, and the
second requirement,\16\ to transact in securities and add liquidity on
The Nasdaq Stock Market, in order to qualify for the proposed increased
$0.44 per contract Tier 5 rebate, the Exchange believes that Market
Makers will be incentivized to direct additional order flow to NOM and
The Nasdaq Stock Market and, in turn, market participants will benefit
from the opportunity to interact with such order flow.
---------------------------------------------------------------------------

    \14\ See note 4 above.
    \15\ The first requirement to qualify for the Tier 5 rebate
requires a Participant to add NOM Market Maker liquidity in Penny
Pilot Options and/or Non-Penny Pilot Options of above 0.40% of total
industry customer equity and ETF options ADV contracts per day in a
month.
    \16\ The second requirement to qualify for the Tier 5 rebate
requires a Participant to transact in all securities through one or
more of its Nasdaq Market Center MPIDs that represent 0.40% or more
of CV which adds liquidity in the same month on The Nasdaq Stock
Market.
---------------------------------------------------------------------------

    The Exchange acknowledges that the proposed new criteria would
require additional volume to achieve the first requirement \17\ of the
Tier 5 rebate and different volume to achieve the second requirement
\18\ of the Tier 5 rebate to qualify for the increased proposed $0.44
per contract Tier 5 rebate, as compared to the current Tier 5 rebate
qualifications.\19\ The Exchange's proposal offers to pay a higher Tier
5 rebate ($0.44 per contract as compared to the current $0.40 per
contract) to NOM Market Makers who qualify for the rebate with the new
requirements. The Exchange believes that it is reasonable to create an
additional opportunity for Participants to earn the Tier 5 rebate by
incentivizing Participants to transact greater volume on The Nasdaq
Stock Market in order to qualify for the Tier 5 rebate on NOM. The
Exchange notes that this proposal is designed as a means to improve
market quality by providing Participants with an incentive to increase
their provision of liquidity on the Exchange's equity and options
markets. This proposal will encourage Participants to send order flow
to both the options and equity markets to receive the Tier 5 rebate.
The Exchange believes that replacing the second requirement of the Tier
5 rebate, which currently requires Participants to achieve the Tier 6
Customer and Professional Rebate to Add Liquidity in

Penny Pilot Options, with the proposed requirement to add liquidity to
The Nasdaq Stock Market will permit a greater number of market
participants to qualify for the Tier 5 rebate. Today, NOM Market Makers
also transact an equities business on The Nasdaq Stock Market. The
proposed qualifications for the Tier 5 rebate will incentivize those
Participants that are engaged in an equities business to add a greater
amount of liquidity both on NOM and The Nasdaq Stock Market.
Furthermore, the concept of linking an incentive on NOM to activity on
The Nasdaq Stock Market exists today. The Exchange currently offers
rebates on NOM that relate to activity on The Nasdaq Stock Market.\20\
Similarly, The Nasdaq Stock Market offers credits that are based on
activity on NOM.\21\ As such, the Exchange believes that the volume
requirement to transact in all securities through one or more of the
Participant's Nasdaq Market Center MPIDs that represent 0.40% or more
of Consolidated Volume (``CV'') which adds liquidity in the same month
on The Nasdaq Stock Market is reasonable because the Exchange already
offers rebates based on similar volume requirements.\22\
---------------------------------------------------------------------------

    \17\ See note 15 above.
    \18\ See note 16 above.
    \19\ Today, the Tier 5 NOM Market Maker Rebate to Add Liquidity
in Penny Pilot Options requires a Participant to add NOM Market
Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of above 0.30% of total industry customer equity and ETF
option ADV contracts per day in a month and qualifies for the Tier 6
Customer and/or Professional Rebate to Add Liquidity in Penny Pilot
Options.
    \20\ For example, the Tier 3 NOM Market Maker Rebate to Add
Liquidity requires: Participant: (a) Adds NOM Market Maker liquidity
in Penny Pilot Options and/or Non-Penny Pilot Options above 0.20% to
0.60% of total industry customer equity and ETF option ADV contracts
per day in a month: Or (b)(1) transacts in all securities through
one or more of its Nasdaq Market Center MPIDs that represent 0.70%
or more of Consolidated Volume (``CV'') which adds liquidity in the
same month on The Nasdaq Stock Market, (2) transacts in Tape B
securities through one or more of its Nasdaq Market Center MPIDs
that represent 0.18% or more of CV which adds liquidity in the same
month on The Nasdaq Stock Market, and (3) executes greater than
0.01% of CV via Market-on- Close/Limit-on-Close (``MOC/LOC'') volume
within The Nasdaq Stock Market Closing Cross in the same month. See
Options 7, Section 2(1).
    \21\ For example, Nasdaq offers a credit of $0.0029 per share if
the member adds Customer, Professional, Firm, Non-NOM Market Maker
and/or Broker-Dealer liquidity in Penny Pilot Options and/or Non-
Penny Pilot Options of 1.15% or more of total industry ADV in the
customer clearing range for Equity and ETF option contracts per day
in a month on NOM. See Equity 7, Section 118(a)(1).
    \22\ Id.
---------------------------------------------------------------------------

    Further, the Exchange proposes to add a new note to Options 7,
Section 2 of the Pricing Schedule which provides that NOM Participants
that qualify for the Tier 5 NOM Market Maker Rebate to Add Liquidity in
Penny Pilot Options, as proposed herein, and add NOM Market Maker
liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of
above 0.50% of total industry customer equity and ETF option ADV
contracts per day in a month, will receive an increased Tier 5 rebate
of $0.46 per contract rebate (in lieu of the $0.44 per contract Tier 5
rebate) to add liquidity in Penny Pilot Options as Market Maker in lieu
of the Tier 5 rebate. The Exchange notes that in comparison to the
proposed Tier 5 qualifications, which require Participant to add NOM
Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of above 0.40% of total industry customer equity and ETF option
ADV contracts per day in a month, and pays a proposed $0.44 per
contract rebate, this additional incentive would pay an increased
rebate of $0.46 per contract to add liquidity in Penny Pilot Options as
Market Maker, provided the Participants adds liquidity in Penny Pilot
Options and/or Non-Penny Pilot Options of above 0.50% of total industry
customer equity and ETF option ADV contracts per day in a month. The
Exchange believes that this incentive will attract additional liquidity
to NOM.
    The Exchange's proposal to increase the Tier 5 NOM Market Maker
Rebate to Add Liquidity in Penny Pilot Options from $0.40 to $0.44 per
contract while also amending the qualifications for the Tier 5 rebate
is equitable and not unfairly discriminatory. All eligible Participants
that qualify for the Tier 5 rebate will uniformly receive the rebate.
The Exchange believes that the proposed volume requirements to qualify
for the Tier 5 rebate are proportionate to the amount of the increased
Tier 5 rebate of $0.44 per contract and equitably reflect the purpose
of the rebate, which is to incentivize Participants to transact greater
volume on both the Exchange's equity and options markets. In addition,
the Exchange believes that it is equitable and not unfairly
discriminatory to offer this rebate to NOM Participants that transact
as NOM Market Makers and also transact on The Nasdaq Stock Market. Any
NOM Participant may trade on The Nasdaq Stock Market because they are
approved members.\23\ Furthermore, unlike other market participants,
NOM Market Makers add value through continuous quoting and the
commitment of capital.\24\ Because NOM Market Makers have these
obligations to the market and regulatory requirements that normally do
not apply to other market participants, the Exchange believes that
offering these rebates to only NOM Market Makers is equitable and not
unfairly discriminatory in light of their obligations. Finally,
encouraging NOM Market Makers to add greater liquidity on the Exchange
benefits all market participants in the quality of order interaction.
---------------------------------------------------------------------------

    \23\ Although a NOM Participant may incur additional labor and/
or costs to establish connectivity to The Nasdaq Stock Market, there
are no additional membership fees for NOM Participants that want to
transact on The Nasdaq Stock Market.
    \24\ See note 8 above.
---------------------------------------------------------------------------

    The Exchange's proposal to offer Participants that qualify for the
Tier 5 rebate and add NOM Market Maker liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options of above 0.50% of total industry
customer equity and ETF option ADV contracts per day in a month, a
rebate of $0.46 per contract to add liquidity in Penny Pilot Options as
Market Maker is reasonable. This additional incentive will further
incentivize NOM Market Makers to add liquidity to NOM and The Nasdaq
Stock Market to achieve the greater rebate. The incentive is intended
to benefit all NOM market participants who will be able to interact
with additional liquidity which this incentive attracts to the
Exchange.
    The Exchange's proposal to offer Participants that qualify for the
Tier 5 rebate and add NOM Market Maker liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options of above 0.50% of total industry
customer equity and ETF option ADV contracts per day in a month, a
rebate of $0.46 per contract to add liquidity in Penny Pilot Options as
Market Maker is equitable and not unfairly discriminatory. As noted
above, NOM Market Makers add value through continuous quoting and the
commitment of capital.\25\ Because NOM Market Makers have these
obligations to the market and regulatory requirements that normally do
not apply to other market participants, the Exchange believes that
offering these rebates to only NOM Market Makers is equitable and not
unfairly discriminatory in light of their obligations. Finally,
encouraging NOM Market Makers to add greater liquidity benefits all
market participants, on both NOM and The Nasdaq Stock Market, in the
quality of order interaction.
---------------------------------------------------------------------------

    \25\ See note 8 above.
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. Greater liquidity benefits all
market participants by providing more trading opportunities and
attracting greater participation by Market Makers. An increase in the
activity of these market participants in turn facilitates tighter
spreads.

Inter-Market Competition
    The proposed amendments to the Tier 5 NOM Market Maker Rebate to
Add Liquidity in Penny Pilot Options do not impose an undue burden on
inter-market competition. The pricing changes proposed above are
generally designed to attract additional order flow to the Exchange,
which strengthens the Exchange's competitive position.
    The Exchange notes that it operates in a highly competitive market
in which market participants can readily favor competing venues if they
deem fee levels at a particular venue to be excessive, or rebate
opportunities available at other venues to be more favorable. In such
an environment, the Exchange must continually adjust its fees and
rebates to remain competitive with other exchanges that have been
exempted from compliance with the statutory standards applicable to
exchanges. Because competitors are free to modify their own fees and
rebates in response, and because market participants may readily adjust
their order routing practices, the Exchange believes that the degree to
which pricing changes in this market may impose any burden on
competition is extremely limited.
    NOM is a relatively small market so its ability to burden
intermarket competition is limited. Moreover, as noted above, price
competition between exchanges is fierce, with liquidity and market
share moving freely between exchanges in reaction to fee and credit
changes.
    In sum, if the changes proposed herein are unattractive to market
participants, it is likely that the Exchange will lose market share as
a result. Accordingly, the Exchange does not believe that the proposed
changes will impair the ability of members or competing order execution
venues to maintain their competitive standing in the financial markets.
Intra-Market Competition
    The proposed amendments to the Tier 5 NOM Market Maker Rebate to
Add Liquidity in Penny Pilot Options do not impose an undue burden on
intra-market competition. Increasing the Tier 5 NOM Market Maker Rebate
to Add Liquidity in Penny Pilot Options and also requiring participants
to add more volume on NOM and add liquidity on The Nasdaq Stock Market
will attract liquidity to the Exchange. The additional rebate incentive
that is being offered to Participants that qualify for the Tier 5
rebate and also add NOM Market Maker liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options of above 0.50% of total industry
customer equity and ETF option ADV contracts per day in a month will
further incentivize Market Makers to direct order flow to the Exchange.
Greater liquidity benefits all market participants by providing more
trading opportunities and attracting greater participation by Market
Makers. An increase in the activity of these market participants in
turn facilitates tighter spreads. Overall, the Exchange believes that
the tiered NOM Market Maker Rebates to Add Liquidity in Penny Pilot
Options along with the proposed Tier 5 increased rebate incentive will
continue to reflect the progressively increasing rebate requirements
offered to NOM Market Maker to incentivize them to earn the highest
possible rebates by bringing the most order flow to the Exchange.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\26\
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is: (i)
Necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2019-084 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-NASDAQ-2019-084. 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-NASDAQ-2019-084 and should be submitted
on or before November 7, 2019.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\27\
---------------------------------------------------------------------------

    \27\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-22594 Filed 10-16-19; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 83, Number 120 (Thursday, June 21, 2018)]
[Rules and Regulations]
[Pages 28766-28770]
[FR Doc No: 2018-13344]

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

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0333]
RIN 165-AA00

Safety Zones; Marine Events Held in the Captain of the Port Long
Island Sound Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing nine temporary safety zones
for fireworks displays within the Captain of the Port (COTP) Long
Island Sound (LIS) Zone. This temporary final rule is necessary to
provide for the safety of life on navigable waters during these events.
Entry into, transit through, mooring or anchoring within these limited
access areas is prohibited unless authorized by the COTP LIS.

DATES: This rule is effective without actual notice from June 21, 2018
through July 15, 2018. For the purposes of enforcement, actual notice
will be used from May 27, 2018, through June 21, 2018.

ADDRESSES: To view documents mentioned in this preamble as being

available in the docket, go to http://www.regulations.gov, type USCG-
2018-0333 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
contact Petty Officer Amber Arnold, Prevention Department, Coast Guard
Sector Long Island Sound, telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
LIS Long Island Sound
NPRM Notice of Proposed Rulemaking
NAD 83 North American Datum 1983

II. Background Information and Regulatory History

    This rulemaking establishes nine safety zones for fireworks
displays. Each event and its corresponding regulatory history are
discussed below.
    50th Birthday Party Fireworks is a first time marine event with no
regulatory history.
    Fairfield Aerial Fireworks is a recurring marine event with
regulatory history and is cited in 33 CFR 165.151(7.16). This event has
been included in this rule due to deviation from the cite date.
    City of Stamford Fireworks is a recurring marine event with
regulatory history and is cited in 33 CFR 165.151(7.12). This event has
been included in this rule due to deviation from the cite date.
    City of West Haven Fireworks is a recurring marine event with
regulatory history and is cited in 33 CFR 165.151(7.13). This event has
been included in this rule due to deviation from the cite date.
    Madison Fireworks is a recurring marine event with regulatory
history and is cited in 33 CFR 165.151(7.38). This event has been
included in this rule due to deviation from the cite date.
    Village of Asharoken Fireworks is a recurring marine event with
regulatory history and is cited in 33 CFR 165.151(7.24). This event has
been included in this rule due to deviation from the cite position.
    City of Norwich July Fireworks is a recurring marine event with
regulatory history and is cited in 33 CFR 165.151(7.11). This event has
been included in this rule due to deviation from the cite date.
    City of Middletown Fireworks is a recurring marine event with
regulatory history and is cited in 33 CFR 165.151(7.9). This event has
been included in this rule due to deviation from the cite date.
    Riverfest Fireworks is a recurring marine event with regulatory
history and is cited in 33 CFR 165.151(7.23). This event has been
included in this rule due to deviation from the cite date.
    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a NPRM with respect to this rule
because doing so would be impracticable and contrary to the public
interest. The event sponsors were late in submitting marine event
applications. These late submissions did not give the Coast Guard
enough time to publish an NPRM, take public comments, and issue a final
rule before these events take place. It is impracticable to publish an
NPRM because we must establish these safety zones by May 27, 2018.
Thus, waiting for a comment period to run is also contrary to the
public interest as it would inhibit the Coast Guard's mission to keep
the ports and waterways safe.
    Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the
preceding paragraph, the Coast Guard finds that good cause exists for
making this rule effective less than 30 days after publication in the
Federal Register.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this temporary rule under authority in
33 U.S.C. 1231. The COTP LIS has determined that the safety zones
established by this temporary final rule are necessary to provide for
the safety of life on navigable waterways before, during and after
these scheduled events.

IV. Discussion of the Rule

    This rule establishes nine safety zones for nine fireworks
displays. The location of these safety zones are as follows:

                     Fireworks Displays Safety Zones
------------------------------------------------------------------------

------------------------------------------------------------------------
1 50th Birthday Party Fireworks........  Location: Waters of Long Island
                                          Sound off Canfield Island,
                                          Norwalk, CT in approximate
                                          position 41[deg]05'40.66'' N,
                                          073[deg]22'53.34'' W (NAD 83).
2 Fairfield Aerial Fireworks...........  Location: Waters of Jennings
                                          Beach, Fairfield, CT in
                                          approximate position
                                          41[deg]08'22'' N,
                                          073[deg]14'02'' W (NAD 83).
3 City of Stamford Fireworks...........  Location: Waters of Fisher's
                                          Westcott Cove, Stamford, CT in
                                          approximate position
                                          41[deg]02'09.56'' N,
                                          073[deg]30'57.76'' W (NAD 83).
4 City of West Haven Fireworks.........  Location: Waters of New Haven
                                          Harbor, off Bradley Point,
                                          West Haven, CT in approximate
                                          position 41[deg]15'07'' N,
                                          072[deg]57'26'' W (NAD 83).
5 Madison Fireworks....................  Location: Waters of Long Island
                                          Sound off Madison Beach,
                                          Madison, CT in approximate
                                          position 41[deg]16'03.93'' N,
                                          072[deg]36'15.97'' W (NAD 83).
6 Village of Asharoken Fireworks.......  Location: Waters of Northport
                                          Bay, Asharoken, NY in
                                          approximate position,
                                          40[deg]55'54.04'' N,
                                          073[deg]21'27.97'' W (NAD 83).
7 City of Norwich July Fireworks.......  Location: Waters of the Thames
                                          River, Norwich, CT in
                                          approximate position,
                                          41[deg]31'16.835'' N,
                                          072[deg]04'43.327'' W (NAD
                                          83).
8 City of Middletown Fireworks.........  Location: Waters of the
                                          Connecticut River, Middletown
                                          Harbor, Middletown, CT in
                                          approximate position
                                          41[deg]33'44.47'' N,
                                          072[deg]38'37.88'' W (NAD 83).
9 Riverfest Fireworks..................  Location: Waters of the
                                          Connecticut River, Hartford,
                                          CT in approximate positions,
                                          41[deg]45'39.93'' N,
                                          072[deg]39'49.14'' W (NAD 83).
------------------------------------------------------------------------

    This rule prevents restricts vessel movement within the areas
specifically designated as a safety zone to reduce the safety risks
associated with specific marine events. Vessels are prohibited from
entering, transiting, mooring, or anchoring with the safety zones
during the period of enforcement of each safety zone unless authorized
by the COTP or designated representative.
    The Coast Guard will notify the public and local mariners of these
safety zones through appropriate means, which may include, but are not
limited to, publication in the Federal Register, the Local Notice to
Mariners, and Broadcast Notice to Mariners.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on 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. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has not been designated
a ``significant regulatory action,'' under Executive Order 12866.
Accordingly, it has not been reviewed by the Office of Management and
Budget.
    The Coast Guard determined that this rulemaking is not a
significant regulatory action for the following reasons: (1) The
enforcement of these safety zones will be relatively short in duration,
lasting at most two hours; (2) persons or vessels desiring to enter
these safety zones may do so with permission from the COTP LIS or a
designated representative; (3) these safety zones are designed in a way
to limit impacts on vessel traffic, permitting vessels to navigate in
other portions of the waterway not designated as a safety zone; and (4)
the Coast Guard will notify the public of the enforcement of this rule
via appropriate means, such as via Local Notice to Mariners and
Broadcast Notice to Mariners to increase public awareness of these
safety zones.

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.
    While some owners or operators of vessels intending to transit
these regulated areas may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant economic
impact on any vessel owner or operator. 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 contact the person listed
in the FOR FURTHER INFORMATION CONTACT.
    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 proposed 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 Orders
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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

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
Management Directive 023-01 and Commandant Instruction M16475.lD, 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
temporary rule involves the establishment of nine temporary safety
zones. 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. 01. A Record of Environmental Consideration (REC) supporting this
determination will be available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your

message can be received without jeopardizing the safety or security of
people, places or vessels.

List of Subjects in 33 CFR Part 165

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

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T01-0333 to read as follows:

Sec.  165.T01-0333  Safety Zones; Marine Events held in the Captain of
the Port Long Island Sound Zone.

    (a) Location. This section will be enforced at the locations listed
for each event in Table 1 to this section.
    (b) Enforcement period. This rule will be enforced on the dates and
times listed for each event in Table 1 to this section.
    (c) Definitions. The following definitions apply to this section: A
``designated representative'' is any Coast Guard commissioned, warrant
or petty officer of the U.S. Coast Guard who has been designated by the
COTP Long Island Sound to act on his or her behalf. The designated
representative may be on an official patrol vessel or may be on shore
and will communicate with vessels via VHF-FM radio or loudhailer.
``Official patrol vessels'' may consist of any Coast Guard, Coast Guard
Auxiliary, state, or local law enforcement vessels assigned or approved
by the COTP Long Island Sound. In addition, members of the Coast Guard
Auxiliary may be present to inform vessel operators of this regulation.
    (d) Regulations. (1) The general regulations contained in Sec.
165.23 apply.
    (2) In accordance with the general regulations in Sec.  165.23,
entry into or movement within these zones is prohibited unless
authorized by the COTP Long Island Sound.
    (3) Any vessel given permission to deviate from these regulations
must comply with all directions given to them by the COTP Long Island
Sound, or a designated representative.
    (4) Any vessel given permission to enter or operate in these safety
zones must comply with all directions given to them by the COTP Long
Island Sound or a designated representative.
    (5) Upon being hailed by a U.S. Coast Guard vessel by siren, radio,
flashing light or other means, the operator of the vessel shall proceed
as directed.
    (6) The regulated area for all fireworks displays listed in Table 1
to this section is that area of navigable waters within a 1000 foot
radius of the launch platform or launch site for each fireworks
display.

            Table 1 to Sec.   165.T01-0333--Fireworks Events
------------------------------------------------------------------------

------------------------------------------------------------------------
1 50th Birthday Party Fireworks Display   Date: May 27, 2018.
                                          Time: 8:30 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          Long Island Sound off Canfield
                                          Island, Norwalk, CT in
                                          approximate position
                                          41[deg]05'40.66'' N,
                                          073[deg]22'53.34'' W (NAD 83).
2 Fairfield Aerial Fireworks...........   Date: July 2, 2018.
                                          Rain Date: July 7,
                                          2018.
                                          Time: 8:00 p.m. to
                                          10:30 p.m.
                                          Location: Location:
                                          Waters of Jennings Beach,
                                          Fairfield, CT in approximate
                                          position 41[deg]08'22'' N,
                                          073[deg]14'02'' W (NAD 83).
3 City of Stamford Fireworks...........   Date: July 6, 2018.
                                          Rain Date: July 7,
                                          2018.
                                          Time: 8:30 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          Fisher's Westcott Cove,
                                          Stamford, CT in approximate
                                          position 41[deg]02'09.56'' N,
                                          073[deg]30'57.76'' W (NAD 83).
4 City of West Haven Fireworks.........   Date: July 3, 2018.
                                          Rain Date: July 5,
                                          2018.
                                          Time: 8:30 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          New Haven Harbor, off Bradley
                                          Point, West Haven, CT in
                                          approximate position
                                          41[deg]15'07'' N,
                                          072[deg]57'26'' W (NAD 83).
5 Madison Fireworks....................   Date: July 3, 2018.
                                          Rain Date: July 6,
                                          2018.
                                          Time: 9:00 p.m. to
                                          10:00 p.m.
                                          Location: Waters of
                                          Long Island Sound off Madison
                                          Beach, Madison, CT in
                                          approximate position
                                          41[deg]16'03.93'' N,
                                          072[deg]36'15.97'' W (NAD 83).
6 Village of Asharoken Fireworks.......   Date: July 4, 2018.
                                          Rain Date: July 5,
                                          2018.
                                          Time: 8:30 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          Northport Bay, Asharoken, NY
                                          in approximate position,
                                          40[deg]55'54.04'' N,
                                          073[deg]21'27.97'' W (NAD 83).
7 City of Norwich July Fireworks.......   Date: July 6, 2018.
                                          Rain Date: July 8,
                                          2018.
                                          Time: 9:00 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          the Thames River, Norwich, CT
                                          in approximate position,
                                          41[deg]31'16.835'' N,
                                          072[deg]04'43.327'' W (NAD
                                          83).
8 City of Middletown Fireworks.........   Date: July 7, 2018.
                                          Rain Date: July 8,
                                          2018.

                                          Time: 9:00 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          the Connecticut River,
                                          Middletown Harbor, Middletown,
                                          CT in approximate position
                                          41[deg]33'44.47'' N,
                                          072[deg]38'37.88'' W (NAD 83).
9 Riverfest Fireworks..................   Date: July 14, 2018.
                                          Rain Date: July 15,
                                          2018.
                                          Time: 8:30 p.m. to
                                          10:30 p.m.
                                          Location: Waters of
                                          the Connecticut River,
                                          Hartford, CT in approximate
                                          positions, 41[deg]45'39.93''
                                          N, 072[deg]39'49.14'' W (NAD
                                          83).
------------------------------------------------------------------------

    Dated: May 24, 2018.
K.B. Reed,
Captain, U. S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. 2018-13344 Filed 6-20-18; 8:45 am]
 BILLING CODE 9110-04-P