[Federal Register Volume 78, Number 60 (Thursday, March 28, 2013)]
[Notices]
[Pages 19040-19047]
[FR Doc No: 2013-07192]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69216; File No. SR-NASDAQ-2012-090]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order
Granting Approval of a Proposed Rule Change To Amend Rule 4626--
Limitation of Liability

March 22, 2013.

I. Introduction

    On July 23, 2012, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend Exchange Rule 4626--Limitation of
Liability (``accommodation proposal''). The proposed rule change was
published for comment in the Federal Register on August 1, 2012.\3\ The
Commission received 11 comment letters on the accommodation proposal
\4\

and a response letter from Nasdaq.\5\ On September 12, 2012, the
Commission extended the time period for Commission action to October
30, 2012.\6\ On October 26, 2012, the Commission instituted proceedings
to determine whether to approve or disapprove the accommodation
proposal.\7\ The Commission then received six additional comment
letters on the proposal \8\ and a second response letter from
Nasdaq.\9\ On January 23, 2013, the Commission extended the time period
for Commission action to March 29, 2013.\10\ This order approves the
proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 67507 (July 26,
2012), 77 FR 45706 (August 1, 2012) (``Notice'').
    \4\ See letters to Elizabeth M. Murphy, Secretary, Commission,
from Sis DeMarco, Chief Compliance Officer, Triad Securities Corp.,
dated August 20, 2012 (``Triad Letter''); Eugene P. Torpey, Chief
Compliance Officer, Vandham Securities Corp., dated August 21, 2012
(``Vandham Letter''); John C. Nagel, Managing Director and General
Counsel, Citadel LLC, dated August 21, 2012 (``Citadel Letter'');
Benjamin Bram, Watermill Institutional Trading LLC, dated August 22,
2012 (``Bram Letter''); Daniel Keegan, Managing Director, Citigroup
Global Markets Inc., dated August 22, 2012 (``Citi Letter'');
Theodore R. Lazo, Managing Director and Associate General Counsel,
Securities Industry and Financial Markets Association, dated August
22, 2012 (``SIFMA Letter I''); Mark Shelton, Group Managing Director
and General Counsel, UBS Securities LLC, dated August 22, 2012
(``UBS Letter I''); Andrew J. Entwistle and Vincent R. Cappucci,
Entwistle & Cappucci LLP, dated August 22, 2012 (``Entwistle
Letter''); Douglas G. Thompson, Michael G. McLellan, and Robert O.
Wilson, Finkelstein Thompson LLP, Christopher Lovell, Victor E.
Stewart, and Fred T. Isquith, Lovell Stewart Halebian Jacobson LLP,
Jacob H. Zamansky and Edward H. Glenn, Zamansky & Associates LLC,
dated August 22, 2012 (``Thompson Letter I''); James J. Angel,
Associate Professor of Finance, Georgetown University, McDonough
School of Business, dated August 23, 2012 (``Angel Letter''); and
Leonard J. Amoruso, General Counsel, Knight Capital Group, Inc.,
dated August 29, 2012 (``Knight Letter'').
    \5\ See letter to Elizabeth M. Murphy, Secretary, Commission,
from Joan C. Conley, Senior Vice President and Corporate Secretary,
Nasdaq, dated September 17, 2012 (``Nasdaq Letter I'').
    \6\ See Securities Exchange Act Release No. 67842 (September 12,
2012), 77 FR 57171 (September 17, 2012).
    \7\ See Securities Exchange Act Release No. 68115 (October 26,
2012), 77 FR 66197 (November 2, 2012).
    \8\ See letters to Elizabeth M. Murphy, Secretary, Commission,
from John Robinson, dated November 13, 2012 (``Robinson Letter'');
Theodore R. Lazo, Managing Director and Associate General Counsel,
Securities Industry and Financial Markets Association, dated
November 20, 2012 (``SIFMA Letter II''); Jeremy Abelson, MJA
Capital, dated November 21, 2012 (``Abelson Letter''); Douglas G.
Thompson, Michael G. McLellan, and Robert O. Wilson, Finkelstein
Thompson LLP, Christopher Lovell, Victor E. Stewart, and Fred T.
Isquith, Lovell Stewart Halebian Jacobson LLP, Jacob H. Zamansky and
Edward H. Glenn, Zamansky & Associates LLC, dated November 23, 2012
(``Thompson Letter II''); Tim Mann, dated November 23, 2012 (``Mann
Letter''); and Mark Shelton, Group Managing Director and General
Counsel, UBS Securities LLC, dated November 23, 2012 (``UBS Letter
II'').
    \9\ See letter to Elizabeth M. Murphy, Secretary, Commission,
from Joan C. Conley, Senior Vice President and Corporate Secretary,
Nasdaq, dated December 7, 2012 (``Nasdaq Letter II'').
    \10\ See Securities Exchange Act Release No. 68707 (January 23,
2013), 78 FR 6154 (January 29, 2013).
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II. Description of Proposal

    Pursuant to existing Nasdaq Rule 4626(a), Nasdaq and its affiliates
are not liable for any losses, damages, or other claims arising out of
the Nasdaq Market Center or its use.\11\ However, existing Nasdaq Rule
4626(b) allows Nasdaq to compensate users of the Nasdaq Market Center
for losses directly resulting from the systems' actual failure to
correctly process an order, Quote/Order, message, or other data,
provided the Nasdaq Market Center has acknowledged receipt of the
order, Quote/Order, message, or data. Nasdaq's payment for all claims
made by all market participants related to the use of the Nasdaq Market
Center during a single calendar month shall not exceed the larger of
$500,000 or the amount of the recovery obtained by Nasdaq under any
applicable insurance policy.\12\
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    \11\ According to Nasdaq Rule 4626(a), any losses, damages, or
other claims, related to a failure of the Nasdaq Market Center to
deliver, display, transmit, execute, compare, submit for clearance
and settlement, adjust, retain priority for, or otherwise correctly
process an order, Quote/Order, message, or other data entered into,
or created by, the Nasdaq Market Center is absorbed by the member,
or the member sponsoring the customer, that entered the order,
Quote/Order, message, or other data into the Nasdaq Market Center.
    \12\ See Nasdaq Rule 4626(b)(1). Under Nasdaq Rule 4626(b)(2),
with respect to the aggregate of all claims made by all market
participants during a single calendar month related to a systems
malfunction or error of the Nasdaq Market Center concerning locked/
crossed market, trade through protection, market maker quoting,
order protection, or firm quote compliance functions of the market
participant, to the extent such functions are electronically
enforced by the Nasdaq trading system and where Nasdaq determines in
its sole discretion that such systems malfunction or error was
caused exclusively by Nasdaq and no outside factors contributed to
the systems malfunction or error, Nasdaq's payment during a single
calendar month will not exceed the larger of $3,000,000 or the
amount of the recovery obtained by Nasdaq under any applicable
insurance policy. See Nasdaq Rule 4626(b)(2). The Facebook initial
public offering does not implicate the types of systems errors or
malfunctions described in Nasdaq Rule 4626(b)(2).
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    Nasdaq proposes to add subsection (3) to Nasdaq Rule 4626(b) to
establish a voluntary accommodation program for certain claims arising
from the initial public offering (``IPO'') of Facebook, Inc.
(``Facebook'') on May 18, 2012 (collectively ``Facebook IPO'').\13\
Specifically, Nasdaq proposes to compensate market participants for
certain claims related to system difficulties in the Nasdaq Halt and
Imbalance Cross process (``Cross'') \14\ in connection with the
Facebook IPO in an amount not to exceed $62 million.\15\ Further, as
proposed by Nasdaq, claims for compensation must arise solely from
realized or unrealized direct trading losses from four specific
categories of Cross orders: (i) Sell Cross orders that were submitted
between 11:11 a.m. ET and 11:30 a.m. ET on May 18, 2012, that were
priced at $42.00 or less, and that did not execute; (ii) sell Cross
orders that were submitted between 11:11 a.m. ET and 11:30 a.m. ET on
May 18, 2012, that were priced at $42.00 or less, and that executed at
a price below $42.00; (iii) buy Cross orders priced at exactly $42.00
and that were executed in the Cross, but not immediately confirmed; and
(iv) buy Cross orders priced above $42.00 and that were executed in the
Cross, but not immediately confirmed, but only to the extent entered
with respect to a customer \16\ that was permitted by the member to
cancel its order prior to 1:50 p.m. and for which a request to cancel
the order was submitted to Nasdaq by the member, also prior to 1:50
p.m.\17\
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    \13\ In addition to adding proposed subsection (b)(3) to Nasdaq
Rule 4626, Nasdaq proposes to make certain technical amendments to
existing subsections of that rule. See, e.g., proposed Nasdaq Rule
4626(b)(4) and (b)(6).
    \14\ See Nasdaq Rule 4753. The Commission recently proposed
Regulation Systems Compliance and Integrity (``Regulation SCI'')
because of a highlighted ``need to consider an updated and
formalized regulatory framework for ensuring that the U.S.
securities trading markets develop and maintain systems with
adequate capacity, integrity, resiliency, availability, and
security, and reinforce the requirement that [automated] systems
operate in compliance with the [Act].'' See Securities Exchange Act
Release No. 69077 (March 8, 2013) (File No. S7-01-13) (proposing
release for Regulation SCI).
    \15\ See proposed Nasdaq Rule 4626(b)(3); Notice, supra note 3,
at 47507.
    \16\ As proposed, unless Nasdaq Rule 4626 states otherwise, the
term ``customer'' includes any unaffiliated entity upon whose behalf
an order is entered, including any unaffiliated broker or dealer.
See proposed Nasdaq Rule 4626(b)(3)(A).
    \17\ See proposed Nasdaq Rule 4626(b)(3)(A); Notice, supra note
3, at 45710-11. In addition, proposed Nasdaq Rule 4626(b)(3)(C)
states that alleged losses arising in any form or that in any way
resulted from any other causes would not be considered losses
eligible for the proposed accommodations. Proposed Nasdaq Rule
4626(b)(3)(C) sets forth a non-exhaustive list of examples of such
losses.
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    According to proposed Nasdaq Rule 4626(b)(3)(B), the measure of
loss for the Cross orders described in (i), (iii), and (iv) above would
be the lesser of: (a) the differential between the expected execution
price of the orders in the Cross process that established an opening
print of $42.00 and the actual execution price received; or (b) the
differential between the expected execution price of the orders in the
Cross process that established an opening print of $42.00 and a
benchmark price of $40.527.\18\ With respect to Cross orders described
in (iv) above, the amount of loss would be reduced by 30 percent.\19\
Further,

according to proposed Rule 4626(b)(3)(B), the measure of loss for the
Cross orders described in (ii) above would be the differential between
the expected execution price of the orders in the Cross process that
established an opening print of $42.00 and the actual execution price
received.\20\
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    \18\ $40.527 constitutes the volume-weighted average price
(``VWAP'') of Facebook stock on May 18, 2012, between 1:50 p.m. ET
and 2:35 p.m. ET. See proposed Nasdaq Rule 4626(b)(3)(B). See also
Notice, supra note 3, at 45710-11 (describing Nasdaq's rationale for
establishing the $40.527 benchmark).
    \19\ See proposed Nasdaq Rule 4626(b)(3)(B); see also Notice,
supra note 3, at 45710 (describing Nasdaq's rationale for lowering
the amount of eligible losses for the fourth category of Cross
orders).
    \20\ Each member's direct trading losses calculated in
accordance with proposed Nasdaq Rule 4626(b)(3)(A) and (B) are
referred to as the ``member's share.'' See proposed Nasdaq Rule
4626(b)(3)(B).
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    With respect to the process for submitting claims pursuant to
proposed Nasdaq Rule 4626(b)(3), all claims must be submitted in
writing no later than seven days after this accommodation proposal is
approved by the Commission.\21\ As proposed, the Financial Industry
Regulatory Authority, Inc. (``FINRA'') would process and evaluate all
the claims submitted, using the standards set forth in Nasdaq Rule
4626.\22\ FINRA would then provide to the Nasdaq Board of Directors and
the Board of Directors of The NASDAQ OMX Group, Inc. an analysis of the
total value of eligible claims submitted under proposed Nasdaq Rule
4626(b)(3), and Nasdaq would thereafter file with the Commission a
proposed rule change setting forth the amount of eligible claims and
the amount it proposes to pay to its members.\23\ All payments would be
made in cash and would not be made until the proposed rule change
setting forth the amount of eligible claims becomes final and
effective.\24\
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    \21\ See proposed Nasdaq Rule 4626(b)(3)(D). According to
Nasdaq, notice of approval would be publicly posted on the Nasdaq
Trader Web site at www.nasdaqtrader.com and provided directly to all
member firms via an Equity Trader Alert. See Notice, supra note 3,
at 45712.
    \22\ See proposed Nasdaq Rule 4626(b)(3)(D). FINRA may request
such supplemental information as it deems necessary to assist its
evaluation of claims. See id. According to Nasdaq, FINRA's role
would be limited to measuring data against the benchmarks
established under Nasdaq Rule 4626(b)(3) to ascertain the
eligibility and value of each member's claims. See Notice, supra
note 3, at 45712. Further, Nasdaq represented that FINRA staff
assessing the claims would not be involved in providing regulatory
services to any Nasdaq market, and they would not have purchased
Facebook stock during Nasdaq's IPO opening process or currently own
Facebook stock. See id.
    \23\ See proposed Nasdaq Rule 4626(b)(3)(E). According to
Nasdaq, the report that FINRA prepares for Nasdaq on its analysis of
the eligibility of claims also would be provided to the public
members of FINRA's Audit Committee. See Notice, supra note 3, at
45712.
    \24\ See proposed Nasdaq Rule 4626(b)(3)(E).
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    Furthermore, as proposed, in order to receive payment under Nasdaq
Rule 4626(b)(3), not later than seven days after the effective date of
the proposed rule change setting forth the amount of eligible claims,
the member must submit to Nasdaq an attestation detailing the amount of
customer compensation \25\ and covered proprietary losses.\26\ Failure
to provide the required attestation within the specified time period
would void the member's eligibility to receive compensation under
proposed Nasdaq Rule 4626(b)(3).\27\ In addition, under proposed Nasdaq
Rule 4626(b)(3)(H), all payments to members under the accommodation
proposal would be contingent upon the execution and delivery to Nasdaq
of a release by the member of all claims by it or its affiliates
against Nasdaq or its affiliates for losses that arise out of, are
associated with, or relate in any way to the Facebook IPO Cross or any
actions or omissions related in any way to that Cross.\28\ The failure
to provide this release within 14 days after the effective date of the
proposed rule change setting forth the amount of eligible claims would
void the member's eligibility to receive compensation pursuant to
proposed Nasdaq Rule 4626(b)(3).\29\
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    \25\ According to proposed Nasdaq Rule 4626(b)(3)(F)(i),
``customer compensation'' means the amount of compensation,
accommodation, or other economic benefit provided or to be provided
by the member to its customers (other than customers that were
brokers or dealers trading for their own account) in respect of
trading in Facebook on May 18, 2012.
    \26\ According to proposed Nasdaq Rule 4626(b)(3)(F)(ii),
``covered proprietary losses'' means the extent to which the losses
reflected in the member's share were incurred by the member trading
for its own account or for the account of a customer that was a
broker or dealer trading for its own account.
    \27\ See proposed Nasdaq Rule 4626(b)(3)(F). In addition, each
member must maintain books and records that detail the nature and
amount of customer compensation and covered proprietary losses. See
id. According to Nasdaq, it, through FINRA, would expect to examine
the accuracy of a member's attestation at a later date. See Notice,
supra note 3, at 45712.
    \28\ See proposed Nasdaq Rule 4626(b)(3)(H); Notice, supra note
3, at 45713 (explaining the purpose of the release requirement).
    \29\ See proposed Nasdaq Rule 4626(b)(3)(H).
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    With respect to the priority of payment under proposed Nasdaq Rule
4626(b)(3), payments would be made in two tranches.\30\ First, if the
member has provided customer compensation, the member would receive an
amount equal to the lesser of the member's share \31\ or the amount of
customer compensation.\32\ Second, the member would receive an amount
with respect to covered proprietary losses, however, the sum of
payments to a member would not exceed the member's share.\33\ According
to proposed Nasdaq Rule 4626(b)(3)(G), if the amount calculated under
the first tranche (i.e., customer compensation) exceeds $62 million,
accommodation would be prorated among members eligible to receive
accommodation under the first tranche. If the first tranche is paid in
full and the amount calculated under the second tranche exceeds the
funds remaining from the $62 million accommodation pool, such funds
would be prorated among members eligible to receive accommodation under
the second tranche.\34\ Further, if a member's eligibility to receive
funds is voided under proposed Nasdaq Rule 4626(b)(3), and the funds
payable to other members must be prorated, the funds available to pay
other members would be increased accordingly.\35\
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    \30\ See proposed Nasdaq Rule 4626(b)(3)(G).
    \31\ See supra note 20.
    \32\ See proposed Nasdaq Rule 4626(b)(3)(G).
    \33\ See id.
    \34\ See id.
    \35\ See id.
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III. Summary of Comments and Nasdaq's Responses

    As previously noted, the Commission received a total of seventeen
comment letters on the accommodation proposal and two response letters
from Nasdaq.\36\ Fourteen commenters raised concerns with respect to
the accommodation proposal,\37\ two commenters expressed their support
for the accommodation proposal,\38\ and one commenter addressed the
issue of exchange liability more broadly.\39\
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    \36\ See supra notes 4-5, and 8-9.
    \37\ See Triad Letter; Vandham Letter; Bram Letter; Citi Letter;
SIFMA Letter I; UBS Letter I; Entwistle Letter; and Thompson Letter
I, supra note 4. See also, Robinson Letter; SIFMA Letter II; Abelson
Letter; Thompson Letter II; Mann Letter; and UBS Letter II, supra
note 8.
    \38\ See Citadel Letter and Knight Letter, supra note 4.
    \39\ See Angel Letter, supra note 4. The Angel Letter does not
opine on the proposal, but rather comments more generally on what
the appropriate parameters of liability should be for national
securities exchanges.
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    Commenters raised concerns in the following areas, each of which is
discussed in greater detail below: (1) The requirement that market
participants release all other potentially valid claims as a condition
to participation in the accommodation program; (2) Nasdaq's calculation
and use of a benchmark price of $40.527; (3) the categories of claim-
eligible trading losses; (4) the amount of the accommodation pool; (5)
regulatory immunity from private suits and limitations on liability;
(6) the applicability of Nasdaq Rule 4626; (7) the impact of approval
of the accommodation proposal on pending litigation; and (8) two
procedural issues.

A. Release of All Claims Relating to the Facebook IPO Cross

    Several commenters expressed concerns that payment to eligible

claimants is conditioned upon the member firm executing a release of
claims by the firm or its affiliates against Nasdaq for losses
associated with the Facebook IPO on May 18, 2012.\40\ Specifically, one
commenter indicated that requiring execution of the release as a
precondition to participation in the accommodation proposal creates a
``fundamentally unfair dilemma'' for members.\41\ According to the
commenter, Nasdaq members must choose to execute a release of claims
and participate in the accommodation program, which may not make the
member whole, or pursue ``cost-and resource-intensive alternative
avenues of recovery.'' \42\ This commenter believes that members should
be able to both participate in the accommodation program and be able to
pursue other avenues of recourse. According to this commenter, any
recovery under the accommodation program should be ``setoff against
future claims,'' but should not preclude future claims against Nasdaq,
especially for claims for losses that are not eligible for compensation
under the accommodation program.\43\ This commenter further stated that
any release requirement should be limited to the categories of claim-
eligible trading losses--allowing other avenues of recourse for losses
that are not eligible to receive compensation under the accommodation
program.\44\ Another commenter noted that releases of claims are
typically the product of commercial, arms-length negotiation and not
part of a rule imposed by a regulatory authority.\45\ Finally, one
commenter suggested that Nasdaq members be given the option to ``opt
in'' to the accommodation program on an order by order basis or a firm
by firm basis.\46\
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    \40\ See UBS Letter I, supra note 4, at 3-4; Vandham Letter,
supra note 4, at 3; Knight Letter, supra note 4, at 2; and UBS
Letter II, supra note 8 at 3-4.
    \41\ See UBS Letter I, supra note 4, at 3.
    \42\ See id.
    \43\ See UBS Letter II, supra note 8, at 3.
    \44\ See id.
    \45\ See Knight Letter, supra note 4, at 2.
    \46\ See Vandham Letter, supra note 4, at 3.
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    In response, Nasdaq asserted that the release requirement is fair,
reasonable, and furthers the objectives of Section 6(b)(5) of the Act
\47\ because it is ``aimed at avoiding unnecessary litigation and
ensuring equal treatment of all members receiving funds under the
[accommodation] [p]roposal.'' \48\ Moreover, Nasdaq noted that
participation in the accommodation program and execution of the release
are entirely voluntary.\49\ Accordingly, members that wish to forgo
participation in the accommodation program and pursue claims against
Nasdaq instead remain free to do so.\50\ Nasdaq also noted that the use
of a release is routine in the context of a payment in settlement of a
disputed claim, including those brought against regulated entities.\51\
Finally, Nasdaq argued that allowing members to participate in the
accommodation program without releasing Nasdaq from other claims
related to the Facebook IPO Cross would, in effect, ``subsidize the
costs of future litigation against itself.'' \52\
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    \47\ 15 U.S.C. 78f(b)(5).
    \48\ See Nasdaq Letter I, supra note 5, at 5. One commenter
observed that the release requirement may actually ``deter those who
suffered the greatest harm from participating in the Program'' which
may result in Nasdaq exhausting the $62 million accommodation pool
without significantly reducing Nasdaq's litigation exposure. See UBS
Letter II, supra note 8, at note 5.
    \49\ See Nasdaq Letter I, supra note 5, at 5; and Nasdaq Letter
II, supra note 9, at 4.
    \50\ See id.
    \51\ See id.
    \52\ See Nasdaq Letter I, supra note 5, at 5. Nasdaq stated that
it ``is not prepared to make the accommodation it proposes to
members that are unwilling to accept that accommodation in full
satisfaction of any claims they might otherwise assert against
Nasdaq.'' See Nasdaq Letter II, supra note 9, at 4.
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B. Nasdaq's Uniform Benchmark Price

    Several commenters expressed concern with Nasdaq's calculation and
use of the uniform benchmark price of $40.527 to determine the amount
of compensation owed to a member under the accommodation proposal.\53\
Generally, these commenters stated that, contrary to Nasdaq's
assertion, a ``reasonably diligent member'' would not have mitigated
losses during the first forty-five minutes after execution reports were
delivered to firms.\54\ More specifically, two commenters stated that
the uniform benchmark price should be based on a VWAP of Facebook stock
on Monday, May 21, 2012.\55\
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    \53\ See Triad Letter, supra note 4, at 1-3; Vandham Letter,
supra note 4, at 2; Bram Letter, supra note 4, at 1; and Citi
Letter, supra note 4, at 2 and 10. According to Nasdaq, the forty-
five minutes after execution reports were delivered ``would have
been ample time for a reasonably diligent member to have identified
any unexpected customer losses or unanticipated customer positions,
and taken steps to mitigate or liquidate them.'' See Notice, supra
note 3, at footnote 24.
    \54\ See Triad Letter, supra note 4, at 1-3; Vandham Letter,
supra note 4, at 2; Bram Letter, supra note 4, at 1; and Citi
Letter, supra note 4, at 2 and 10.
    \55\ See Triad Letter, supra note 4, at 1; and Citi Letter,
supra note 4, at 2 (stating that the benchmark price should be the
VWAP of Facebook stock between the opening price on Monday, May 21,
2012 and the price at noon on that same day).
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    In response, Nasdaq reasserted that the use of the VWAP of Facebook
stock during the 45 minute window after 1:50 p.m. is appropriate as the
benchmark price because 45 minutes provided members enough time to
identify and mitigate any unexpected losses or unanticipated
positions.\56\ Nasdaq argued that an objective benchmark, rather than a
subjective benchmark premised on an evaluation of each individual
member's circumstances and trading decisions, is necessary to avoid
inconsistent and potentially discriminatory distributions under the
accommodation proposal.\57\ Additionally, because Nasdaq is not
prepared to increase the size of the $62 million accommodation pool,
Nasdaq believes that ``a change in the benchmark price would actually
reduce the funds available to claimants that acted quickly to mitigate
their losses, for the benefit of those that did not.'' \58\
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    \56\ See Nasdaq Letter I, supra note 5, at 3. Specifically,
Nasdaq noted that: (i) All orders and cancellations, including those
entered between 11:11 a.m. and 11:30 a.m., were ``executed,
cancelled, or released into the market'' by 1:50 p.m.; (ii)
confirmations of all trades and cancellations had been disseminated
to members by 1:50 p.m.; and (iii) Nasdaq began reporting a firm bid
and ask to the tape and all data feeds were operating normally by
1:50 p.m. See id. at 3-4. Nasdaq also stated that it issued a
``System Status message'' informing members that all systems were
operating normally at 1:57 p.m. See id. at 4.
    \57\ See Nasdaq Letter II, supra note 9, at 4.
    \58\ See id.
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C. Nasdaq's Categories of Claim-Eligible Trading Losses

    Several commenters stated that the types of orders eligible to
receive compensation under the accommodation proposal are too narrowly
defined.\59\ Two commenters believe that Nasdaq should provide
compensation for losses resulting from ``downstream operational,
technological and customer issues.'' \60\ One commenter stated that
Nasdaq's system failures, specifically the failure to deliver execution
reports for more than two hours after trading began, ``caused direct
and severe damage'' to the commenter and other market participants and
led to direct trading losses.\61\ Another commenter argued that
customer orders entered before

11:11 a.m. on May 18, 2012, that were ``cancel/replaced'' between 11:11
a.m. and 11:30:09 a.m. should be treated differently from other orders
entered during such time and should be entitled to full
compensation.\62\
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    \59\ See UBS Letter I, supra note 4, at 2-3; Citi Letter, supra
note 4, at 7-10; Vandham Letter, supra note 4, at 3; and UBS Letter
II, supra note 8, at 3.
    \60\ See UBS Letter I, supra note 4, at 3. See also UBS Letter
II, supra note 8, at 3; and Citi Letter, supra note 4, at 7-10
(noting that ``[i]n some cases, investors submitted multiple
redundant orders based on the belief that the orders were not going
through'' and ``[i]n other cases, investors submitted cancelations
before receiving order confirmations, but were stuck with the
stock.'').
    \61\ See UBS Letter I, supra note 4, at 3; UBS Letter II, supra
note 8, at 3 (urging the Commission to condition approval of the
accommodation proposal on expansion of the categories of losses
eligible for compensation).
    \62\ See Vandham Letter, supra note 4, at 3. The commenter
believes that Nasdaq's failure to properly account for cancel/
replaced orders resulted in Nasdaq ``taking the profits generated
from certain clients to distribute amongst a larger group.'' See id.
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    Another commenter observed that the accommodation proposal provides
no direct compensation to ``ordinary retail investors'' and does not
guarantee that retail investors would receive any compensation for
losses.\63\ Because Nasdaq's proposal contemplates paying retail
customers through Nasdaq member broker-dealers, the commenter expressed
concern that there is no guarantee that compensation will ultimately be
passed back to the retail investor, especially in instances where the
member's ``customer'' is another broker-dealer.\64\
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    \63\ See Thompson Letter I, supra note 4, at 3-4; and Thompson
Letter II, supra note 8, at note 1.
    \64\ See Thompson Letter I, supra note 4, at 11. See also
Thompson Letter II, supra note 8, at note 1.
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    Nasdaq responded by stating that the question before the Commission
is only whether the proposal is consistent with the requirements of the
Act.\65\ Nasdaq asserted that commenters have not argued that the
proposal ``discriminates unfairly'' among members or that it is
otherwise inconsistent with the requirements of the Act.\66\ Nasdaq
stated its belief that none of the comments provide a basis for the
Commission to determine that a modification to the methodology and
criteria it proposed ``is necessary to remedy any inconsistency with
the Exchange Act.'' \67\ With respect to retail investors, Nasdaq
stated that its accommodation proposal would benefit retail investors
with eligible claims even though Nasdaq has no direct relationship with
them.\68\ Nasdaq noted that the accommodation proposal requires each
member to submit an attestation detailing the amount of compensation
provided or to be provided by the member to its customers.\69\
Moreover, Nasdaq pointed out that accommodation payments are to be made
in two tranches with the first tranche going toward retail customer
claims.\70\
---------------------------------------------------------------------------

    \65\ See Nasdaq Letter I, supra note 5, at 2.
    \66\ See id. But see Robinson Letter, supra note 8, at 1;
Abelson Letter, supra note 8, at 2; and Mann Letter, supra note 8,
at 1 (all generally stating each commenter's belief that anything
less than full compensation for his losses is inconsistent with the
``just and equitable principles of trade'' and is therefore
inconsistent with the requirements of the Act); see also Triad
Letter, supra note 4, at 2; Vandham Letter, supra note 4, at 1, 3;
UBS Letter I, supra note 4, at 2-3; Thompson Letter I, supra note 4,
at 3-4 (generally arguing for greater compensation to market
participants for their losses).
    \67\ See Nasdaq Letter I, supra note 5, at 4.
    \68\ See id. at 8.
    \69\ See id.
    \70\ See id.
---------------------------------------------------------------------------

D. $62 Million Accommodation Pool is Insufficient

    Several commenters argued that the proposed $62 million
accommodation pool is an insufficient amount to compensate market
participants harmed by Nasdaq's systems issues.\71\ One commenter
expressed concern that the second tranche of payments, which would
provide compensation for covered proprietary losses \72\ (the majority
of this commenter's losses), may not be reimbursed at all as claims for
customer losses disbursed in the first tranche will likely exhaust the
entire accommodation pool.\73\
---------------------------------------------------------------------------

    \71\ See UBS Letter I, supra note 4, at 2 (estimating that its
losses are ``in excess of $350 million'' and describing Nasdaq's
proposal to pay $62 million in the aggregate as ``woefully
inadequate''); Thompson Letter I, supra note 4, at 4 and 20;
Thompson Letter II, supra note 8, at note 1; and UBS Letter II,
supra note 8, at 2-4.
    \72\ See supra notes 26, 30-34 and accompanying text.
    \73\ See UBS Letter II, supra note 8, at 2-4.
---------------------------------------------------------------------------

    Nasdaq responded that commenters' objections to the amount of
compensation are ``unpersuasive'' because the Commission has already
determined that rules, such as existing Nasdaq Rule 4626, limiting
exchange liability are consistent with the Act.\74\ Furthermore,
according to Nasdaq, if the accommodation proposal is disapproved, the
current (much lower) limitation on liability of $500,000 would
apply.\75\ Nasdaq emphasized that members who believe the amount of
compensation offered is insufficient or otherwise dislike the
accommodation proposal may elect not to participate.\76\ Nasdaq stated
that it is not prepared to increase the size of the $62 million dollar
accommodation pool.\77\ According to Nasdaq, the purpose of the
accommodation proposal is ``to modify an existing rule that limits
Nasdaq's liability to $500,000 in order to make additional funds
available to compensate members and their customers for the categories
of loss defined in the [accommodation] [p]roposal * * * .'' \78\ Nasdaq
stated that ``[t]he purpose of the [accommodation] [p]roposal is not to
pay all claims of losses alleged with respect to the trading of
Facebook stock, nor even all claims of losses alleged to have been
incurred on May 18, 2012.'' \79\ As to one commenter's concern that the
accommodation pool will be exhausted before any payments are made in
the second tranche for covered proprietary losses, Nasdaq stated that
it believes that the $62 million ``will be sufficient fully to
compensate valid claims under the terms'' of the accommodation
proposal.\80\ Moreover, Nasdaq argued, that it believes ``the proposed
prioritization of payment in favor of members who have or will pass
compensation on to their customers is consistent with the Act.'' \81\
---------------------------------------------------------------------------

    \74\ See Nasdaq Letter I, supra note 5, at 2.
    \75\ See id.
    \76\ See id. at 2-3; and Nasdaq Letter II, supra note 9, at 4.
    \77\ See Nasdaq Letter II, supra note 9, at 4.
    \78\ See Nasdaq Letter I, supra note 5, at 4.
    \79\ See id. Nasdaq expanded on this point in its second
response letter, emphasizing that the proposal is designed to
compensate members for ``only those losses directly attributable to
the systems issues experienced by Nasdaq'' and not ``to address
specific members' individual problems.'' See Nasdaq Letter II, supra
note 9, at 3.
    \80\ See Nasdaq Letter II, supra note 9, at 4.
    \81\ See id.
---------------------------------------------------------------------------

E. Regulatory Immunity from Private Suits and Limitations on Liability

    A number of commenters asserted that Nasdaq is not entitled to
immunity from liability because it was acting in its ``for profit''
capacity in its handling of the Facebook IPO, rather than acting in its
``regulatory capacity'' as a self-regulatory organization.\82\ However,
several commenters stated their belief that the broader issues of
regulatory immunity and limitations on exchange liability should be
considered separately from Nasdaq's accommodation proposal.\83\
---------------------------------------------------------------------------

    \82\ See Citi Letter, supra note 4, at 2-4 and 12-15; SIFMA
Letter I, supra note 4, at 2-4; Thompson Letter I, supra note 4, at
8-10; Thompson Letter II, supra note 8, at note 1; and UBS Letter
II, supra note 8, at 4-5.
    \83\ See Citadel Letter, supra note 4, at 2; Knight Letter,
supra note 4, at 2; Thompson Letter II, supra note 8, at note 2; UBS
Letter II, supra note 8, at 4-5; SIFMA Letter II, supra note 8, at
3.
---------------------------------------------------------------------------

    Nasdaq responded that the Commission's task with regard to the
accommodation proposal is only to determine whether the proposed rule
change is consistent with the Act, and the Commission does not need to
address the issue of regulatory immunity to do so.\84\
---------------------------------------------------------------------------

    \84\ See Nasdaq Letter I, supra note 5, at 6-7.
---------------------------------------------------------------------------

F. Applicability of Nasdaq Rule 4626

    According to one commenter, market participants' losses ``resulted
not from the type of ordinary system failures contemplated by Rule 4626
* * *, but rather from a known design flaw that resulted in a similar
technology issue dating back to Fall 2011, as well as Nasdaq's high-
risk, profit-oriented

behavior prior to and during the IPO * * *'' \85\ This commenter argued
that it is improper to use Rule 4626 to create an accommodation fund in
connection with the Facebook IPO because the losses suffered in
connection with the IPO do not fall within the parameters of Rule
4626.\86\
---------------------------------------------------------------------------

    \85\ See Citi Letter, supra note 4, at 4, and 15-16.
    \86\ See id.
---------------------------------------------------------------------------

    Nasdaq emphasized in response that Rule 4626 is a pre-existing
Commission approved rule and that the rule squarely applies to Nasdaq's
systems issues related to the Facebook IPO.\87\
---------------------------------------------------------------------------

    \87\ See Nasdaq Letter I, supra note 5, at 5-6.
---------------------------------------------------------------------------

G. Impact on Pending Litigation

    Two commenters expressed concern that Commission approval of the
accommodation proposal might negatively impact other adjudications of
disputes with Nasdaq regarding the Facebook IPO.\88\ The commenters
expressed concern that courts or other adjudicative bodies might
interpret Commission approval of the accommodation proposal as defining
or approving the classes of eligible claimants as restricted only to
market participants who submitted one of the four enumerated Cross
order types.\89\ Nasdaq did not specifically respond to commenters'
concerns on this issue.
---------------------------------------------------------------------------

    \88\ See Thompson Letter I, supra note 4, at 4-8; and Entwistle
Letter, supra note 4, at 2. See also Thompson Letter II, supra note
8, at 2-3.
    \89\ See Thompson Letter I, supra note 4, at 4-8; and Entwistle
Letter, supra note 4, at 2. One commenter also expressed concern
about the potential impact of Commission approval on pending
litigation with respect to: (i) Nasdaq's claim of immunity; (ii) the
causes and effects of Nasdaq's system issues; (iii) the validity of
Nasdaq's uniform benchmark price as an estimate of Facebook's stock
price in the absence of any Nasdaq systems issues; (iv) the types
and categories of losses that should or should not be recognized as
compensable; and (v) various other factual and legal assumptions the
commenter believes Nasdaq's accommodation proposal contains. See
Thompson Letter II, supra note 8, at 2.
---------------------------------------------------------------------------

H. Procedural Concerns

    Several commenters raised procedural concerns regarding the
implementation of the accommodation proposal.\90\ Two commenters noted
that Nasdaq should waive the one-year time limit to bring actions
against Nasdaq in Sections 18(H) and 19 of its Service Agreement given
the amount of time it could take to implement the compensation process
set forth in the proposed rule change.\91\ Four commenters stated that
Nasdaq member firms should not be required to release Nasdaq from
liability before member firms receive notice of a final payment amount
pursuant to the accommodation proposal.\92\
---------------------------------------------------------------------------

    \90\ See Citi Letter, supra note 4, at 16; SIFMA Letter I, supra
note 4, at 5; Knight Letter, supra note 4, at 2; and SIFMA Letter II
supra note 8, at 3.
    \91\ Section 18(H) provides ``that any claim, dispute,
controversy, or other matter in question arising out of the
agreement must be made no later than one year after it has arisen.
Section 19 of the agreement provides that any claim, dispute,
controversy, or other matter in question arising out of the
agreement is expressly waived if it is not brought within that
period.'' See SIFMA Letter I, supra note 4, at 5; see also Citi
Letter, supra note 4, at 16; and SIFMA Letter II, supra note 8, at
3.
    \92\ See SIFMA Letter I, supra note 4, at 5-6; Citi Letter,
supra note 4, at 16; Knight Letter, supra note 4, at 2; and UBS
Letter II, supra note 8, at 4. See also SIFMA Letter II supra note
8, at 2.
---------------------------------------------------------------------------

    Nasdaq responded that commenters' requests to extend the one-year
time limit for members to bring claims against Nasdaq improperly ask
the Commission to interfere with existing contractual relationships
that have no bearing on whether Nasdaq Rule 4626 should be amended.\93\
As for concerns that claimants might have to release their claims
against Nasdaq prior to receiving compensation under the accommodation
proposal, Nasdaq represents that the release will become effective upon
payment.\94\
---------------------------------------------------------------------------

    \93\ See Nasdaq Letter I, supra note 5, footnote 11. Nasdaq
believes that members who voluntarily choose to proceed with their
claims outside of the accommodation proposal ``should do so under
the terms and conditions they have agreed to, and not seek to use
the Commission's notice and comment process to renegotiate their
prior contractual commitments.'' See id.
    \94\ See id. at footnote 9. Nasdaq also stated that it intends
to implement the accommodation proposal such that a member would be
aware of the results of its claim prior to being required to execute
a release. See id. See also, SIFMA Letter II, supra note 8, at 2
(stating that this commenter appreciated Nasdaq's clarification on
this issue).
---------------------------------------------------------------------------

IV. Discussion and Commission Findings

    As described above, commenters have raised a number of concerns
about the proposed rule change, many contending that it is not a fair
or equitable approach to compensating market participants harmed by
Nasdaq's system issues. Nasdaq has explained, however, that it did not
design the proposed rule change to compensate all claims of loss
suffered by market participants relating to Nasdaq's system
difficulties with the Cross.\95\ Rather, Nasdaq, in the accommodation
proposal, is proposing to change a Nasdaq rule that in its current form
strictly limits the amount of compensation that may be paid to users of
the Nasdaq Market Center. In considering whether to approve the
proposed rule change, the Commission takes into account the existing
circumstances and the manner in which the current Nasdaq rules would
operate if the Commission disapproved the proposed rule change.\96\
---------------------------------------------------------------------------

    \95\ See supra notes 78 to 79 and accompanying text. Several
commenters observed that the accommodation proposal will indeed not
result in full compensation for their losses. See, e.g., supra notes
71-73 and accompanying text. Commenters also noted that some market
participants have brought legal actions alleging claims against
Nasdaq based on system difficulties encountered during the Facebook
IPO. See Thompson Letter I, supra note 4, at 3; and Entwistle
Letter, supra note 4, at 1. The Commission notes that approval of
this proposed rule change has no bearing on claims made in any
pending litigation against Nasdaq related to systems difficulties
encountered during the Facebook IPO.
    \96\ While commenters have suggested various modifications to
the accommodation proposal that would, in their view, make it
better, the Commission's authority is only to approve or disapprove
the change as proposed by Nasdaq. See generally Section 19(b) of the
Act.
---------------------------------------------------------------------------

    The Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder applicable to a national securities exchange.\97\
Specifically, the Commission finds that the proposed rule change is
consistent with Section 6(b)(5) of the Act,\98\ which requires, among
other things, that the rules of a national securities exchange be
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 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 not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
---------------------------------------------------------------------------

    \97\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \98\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Existing Nasdaq rules state that Nasdaq and its affiliates are not
liable for any losses, damages, or other claims arising out of the
Nasdaq Market Center or its use.\99\ However, as noted above,\100\
Nasdaq Rule 4626(b) currently allows Nasdaq to compensate users of the
Nasdaq Market Center for certain types of losses directly resulting
from its systems' actual failures. Under current Nasdaq Rule
4626(b)(1), payment for all such claims made by all market participants
during a single calendar month cannot exceed the larger of $500,000 or
the amount of recovery obtained by Nasdaq under any applicable
insurance policy.\101\ While the accommodation proposal is not designed
to, and would not, compensate all claims of loss suffered by market
participants relating to Nasdaq's system

difficulties with the Cross,\102\ the Commission notes that the
accommodation proposal would create a means of providing significantly
more compensation for eligible claims, outside of litigation, than
would otherwise be available under existing Nasdaq Rule 4626(b).
Accordingly, approval of the proposed rule change will make more funds
available to compensate investors and Nasdaq members under Nasdaq's
rules, which the Commission believes is in the public interest.\103\
---------------------------------------------------------------------------

    \99\ See Nasdaq Rule 4626(a).
    \100\ See supra notes 11-12 and accompanying text.
    \101\ See Nasdaq Rule 4626(b)(1).
    \102\ See supra note 79 and accompanying text.
    \103\ Several commenters questioned the adequacy of the amount
of compensation that would be provided to Nasdaq members under the
accommodation proposal as well as the calculation and use of the
benchmark price in determining the amount of loss repayable under
the accommodation proposal. See supra notes 53-55, 71 and
accompanying text.
---------------------------------------------------------------------------

    The Commission believes that the proposal sets forth objective and
transparent processes to determine eligible claims and how such claims
would be paid to Nasdaq members that elect to participate in the
accommodation plan. Specifically, Nasdaq proposes to provide additional
compensation beyond that available under existing Rule 4626(b)(1) for
claims of realized or unrealized direct trading losses arising from
four specific categories of Cross orders.\104\ Also, as noted above,
proposed Nasdaq Rule 4626(b)(3)(B) would set forth the methods for
calculating the amount of losses for each of the four categories of
Cross orders.\105\ In addition, proposed Nasdaq Rule 4626(b)(3)(D)
specifies the time period for a member to submit its claim and provides
that FINRA would process and evaluate the claims.\106\ Proposed Nasdaq
Rule 4626(b)(3)(E) sets forth details regarding FINRA's review process,
the timing of payments by Nasdaq, and the manner of payment (i.e., in
cash).\107\
---------------------------------------------------------------------------

    \104\ See proposed Nasdaq Rule 4626(b)(3)(A).
    \105\ See supra notes 18-20 and accompanying text.
    \106\ See supra notes 21-23 and accompanying text.
    \107\ See supra notes 23-24 and accompanying text.
---------------------------------------------------------------------------

    As discussed in more detail above, several commenters objected to
limiting compensation under the accommodation proposal to the four
categories of Cross orders.\108\ Further, several commenters questioned
the adequacy of the amount of compensation that would be provided to
Nasdaq members under the accommodation proposal as well as the
calculation and use of the benchmark price in determining the amount of
loss repayable under the accommodation proposal.\109\ In determining
that approval of the accommodation proposal is consistent with the Act,
the Commission is not reaching any conclusion on the overall adequacy
of the amount of the compensation pool, the benchmark price used, or
other limitations on eligibility.
---------------------------------------------------------------------------

    \108\ See supra notes 59-64 and accompanying text.
    \109\ See supra notes 53-55, 71 and accompanying text.
---------------------------------------------------------------------------

    In order to receive compensation under proposed Nasdaq Rule
4626(b)(3), a member must timely submit to Nasdaq an attestation
detailing the amount of customer compensation and covered proprietary
losses.\110\ The proposal would further require the member to maintain
books and records that detail the nature and amount of customer
compensation and covered proprietary losses.\111\ The Commission
believes that the proposed attestation and recordkeeping requirements
should help incentivize Nasdaq members to accurately determine the
amount of customer compensation and covered proprietary losses and
submit claims accordingly. Moreover, payments made pursuant to proposed
Nasdaq Rule 4626(b)(3) would be made in two tranches--a member would
first receive an amount equal to the lesser of the member's share or
the amount of customer compensation,\112\ and then receive an amount
with respect to covered proprietary losses.\113\ The Commission
believes that, because the accommodation proposal would accommodate
members for customer losses before accommodating members for
proprietary losses, the accommodation proposal should encourage members
to compensate their customers for customer losses related to the
Facebook IPO.
---------------------------------------------------------------------------

    \110\ See proposed Nasdaq Rule 4626(b)(3)(F).
    \111\ See id.
    \112\ See supra note 25 (defining ``customer compensation'').
    \113\ See proposed Nasdaq Rule 4626(b)(3)(G). See also supra
notes 26 (defining ``covered proprietary losses'') and 30-35 and
accompanying text (explaining how funds are to be allocated).
---------------------------------------------------------------------------

    Lastly, in order to receive payments under proposed Nasdaq Rule
4626(b)(3), within 14 days after the effective date of a separate
proposed rule change setting forth the amount of eligible claims, a
member must execute and deliver to Nasdaq a release of all claims by
the member or its affiliates against Nasdaq or its affiliates for
losses that arise out of, are associated with, or relate in any way to
the Facebook IPO Cross or to any actions or omissions related in any
way to that Cross.\114\ As discussed above, several commenters opposed
the proposed waiver of claims.\115\ However, although a member must
execute a release of claims in order to receive any payment under
proposed Nasdaq Rule 4626(b)(3), participation in the accommodation
program is voluntary, which means a member is free to elect not to
submit a claim for compensation under the accommodation program and
choose instead to pursue other remedies.\116\
---------------------------------------------------------------------------

    \114\ See proposed Nasdaq Rule 4626(b)(3)(H).
    \115\ See supra notes 40-46 and accompanying text.
    \116\ The Commission notes that Nasdaq intends to implement the
accommodation proposal such that a member would be aware of the
results of its claim prior to being required to execute a release
and that Nasdaq represents that the release will become effective
upon payment. See supra note 94 and accompanying text.
---------------------------------------------------------------------------

    For the reasons discussed in this section, the Commission finds
that Nasdaq's proposal to amend its existing Rule 4626 to increase the
amount of compensation Nasdaq is authorized to provide from $500,000 to
$62 million for certain types of claims arising in connection with the
Facebook IPO on May 18, 2012, is consistent with the Section 6(b)(5) of
the Act. In reaching its conclusion, the Commission is relying on the
representations made by Nasdaq in its accommodation proposal, but is
not making any determinations regarding the accuracy of the facts as
represented by Nasdaq, and notes that certain commenters have contested
Nasdaq's representation of the facts. In addition, the Commission is
not expressing any view with respect to any issue other than whether
the proposed rule change is consistent with Section 19(b) of the Act.
For example, as discussed above, several commenters questioned whether
Nasdaq should be entitled to immunity from liability based on its
actions with respect to the Facebook IPO.\117\ Other commenters argued
that the question of whether regulatory immunity applies should be
considered separately from this proposed rule change.\118\ Whether
regulatory immunity should apply to Nasdaq in connection with its
actions related to the Facebook IPO is outside the scope of the
proposed rule change and the Commission's consideration of such
proposed rule change. Similarly, as discussed in more detail above,
several commenters expressed concern that approval of the proposed rule
change could potentially impact pending litigation with Nasdaq
regarding the Facebook IPO.\119\ The Commission emphasizes that this
approval order addresses only whether the proposed change to Nasdaq's
existing

accommodation rule is consistent with Section 19(b) of the Act. The
Commission also notes that, given the amount of time it could take to
implement the compensation process set forth in the proposed rule
change, several commenters urged Nasdaq to waive the one-year time
limit set forth in Nasdaq's service agreement within which members must
bring actions against Nasdaq.\120\ Because Nasdaq's service agreement
is not before the Commission as a part of this proposed rule change,
the Commission expresses no view with respect to whether Nasdaq should
provide an exception under the service agreement. Finally, in issuing
this order, the Commission is expressing no view as to whether Nasdaq
or any other person may have violated the federal securities laws or
any other laws, any rule or regulation thereunder, or the rules of
Nasdaq or any other self-regulatory organization, in connection with
the Facebook IPO.
---------------------------------------------------------------------------

    \117\ See supra note 82 and accompanying text.
    \118\ See supra note 83 and accompanying text.
    \119\ See supra notes 88-89 and accompanying text.
    \120\ See supra note 91 and accompanying text.
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\121\ that the proposed rule change (SR-NASDAQ-2012-090) be, and
hereby is, approved.
---------------------------------------------------------------------------

    \121\ 15 U.S.C. 78s(b)(2).

    By the Commission.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-07192 Filed 3-27-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Notices]
[Pages 31748-31754]
[FR Doc No: 2023-10566]

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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2003-0152, EPA-HQ-OAR-2011-0371, et al; FRL-10817-01-OAR]

Proposed Information Collection Request; Comment Request

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The U.S. Environmental Protection Agency (EPA) is planning to
submit the below listed information collection requests (ICR) to the
Office of Management and Budget (OMB) for review and approval in
accordance with the Paperwork Reduction Act. Before doing so, EPA is
soliciting public comments on specific aspects of the proposed
information collection as described below. These are proposed
extensions of the currently approved ICRs. 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.

DATES: Comments must be submitted on or before July 17, 2023.

ADDRESSES: Submit your comments, referencing the Docket ID numbers
provided for each item in the text, online using www.regulations.gov
(our preferred method), by email to [email protected], or by mail
to: EPA Docket Center, Environmental Protection Agency, Mail Code
28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
    The EPA's policy is that all comments received will be included in
the public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Mr. Muntasir Ali, Sector Policies and
Programs Division, (D243-05), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number:<PHONE_NUMBER>; email
address: [email protected].

SUPPLEMENTARY INFORMATION: Supporting documents which explain in detail
the information that the EPA will be collecting are available in the
public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW, Washington, DC.

The telephone number for the Docket Center is<PHONE_NUMBER>. For
additional information about EPA's public docket, visit http://www.epa.gov/dockets.
    Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting
comments and information to enable it to: (i) evaluate whether the
proposed collection of information is necessary for the proper
performance of the functions of the Agency, including whether the
information will have practical utility; (ii) evaluate the accuracy of
the Agency's estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used; (iii) enhance the quality, utility, and clarity of the
information to be collected; and (iv) minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses. Burden
is defined at 5 CFR 1320.03(b). EPA will consider the comments received
and amend the ICR as appropriate. The final ICR package will then be
submitted to OMB for review and approval. At that time, EPA will issue
another Federal Register notice to announce the submission of the ICR
to OMB and the opportunity to submit additional comments to OMB.
    General Abstract: For all the listed ICRs in this notice, owners
and operators of affected facilities are required to comply with
reporting and record keeping requirements for the general provisions of
40 CFR part 60, subpart A or part 63, subpart A, as well as the
applicable specific standards. This includes submitting initial
notifications, performance tests and periodic reports and results, and
maintaining 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 system is inoperative. These
reports are used by EPA to determine compliance with the standards.
    (1) Docket ID Number: EPA-HQ-OAR-2007-0563; National Volatile
Organic Compound Emission Standards for Consumer Products (40 CFR part
59, subpart C) (Renewal); EPA ICR Number 1764.09; OMB Control Number
2060-0348; Expiration date August 31, 2023.
    Respondents: Manufacturers, importers, and named distributors of
consumer products.
    Respondent's obligation to respond: Mandatory (40 CFR part 59
subpart C).
    Estimated number of respondents: 732.
    Frequency of response: Initially.
    Estimated annual burden: 16,126 hours.
    Estimated annual costs: $1,765,427, includes $0 annualized capital
or O&M costs.
    Changes in estimates: There is no change in the labor hours or
capital and O&M costs to the respondents in this ICR compared to the
previous ICR because the regulations have not changed over the past
three years and are not anticipated to change over the next three
years.
    (2) Docket ID Number: EPA-HQ-OAR-2023-0115; NSPS for Nitric Acid
Plants (40 CFR part 60, subparts G and Ga) (Renewal); EPA ICR Number
1056.14; OMB Control Number 2060-0019; Expiration date January 31,
2024.
    Respondents: Nitric acid production units producing weak (30 to 70
percent) nitric acid.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subparts G and Ga).
    Estimated number of respondents: 32.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 2,534 hours.
    Estimated annual cost: $3,040,000, includes $2,750,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected increase in burden due
to an increase in the number of sources subject to the regulation.
    (3) Docket ID Number: EPA-HQ-OAR-2003-0152; Compliance Assurance
Monitoring Program (40 CFR part 64) (Renewal); EPA ICR Number 1663.11;
OMB Control Number 2060-0376; Expiration date January 31, 2024.
    Respondents: Title V sources with controlled pollutant-specific
emissions units.
    Respondent's obligation to respond: Mandatory (40 CFR part 64).
    Estimated number of respondents: 21,565.
    Frequency of response: Initially, semiannually, annually.
    Estimated annual burden: 24,590 hours.
    Estimated annual cost: $999,211, includes no annualized capital or
O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (4) Docket ID Number: EPA-HQ-OAR-2023-0137; NSPS for Sewage Sludge
Incineration Units (40 CFR part 60, subpart LLLL) (Renewal); EPA ICR
Number 2639.06; OMB Control Number 2060-0658; Expiration date January
31, 2024.
    Respondents: Sewage sludge incineration unit facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart LLLL).
    Estimated number of respondents: 8.
    Frequency of response: Initially, annually, semiannually.
    Estimated annual burden: 1,560 hours.
    Estimated annual cost: $1,130,000, includes $1,050,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected increase in burden due
to an increase in the number of sources subject to the regulation.
    (5) Docket ID Number: EPA-HQ-OAR-2023-0116; NSPS for Automobile and
Light Duty Truck Surface Coating Operations (40 CFR part 60, subpart
MM) (Renewal); EPA ICR Number 1064.21; OMB Control Number 2060-0034;
Expiration date February 29, 2024.
    Respondents: Automobile and light duty truck surface coating
operations.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart MM).
    Estimated number of respondents: 72.
    Frequency of response: Initially, semiannually, quarterly.
    Estimated annual burden: 214,000 hours.
    Estimated annual cost: $24,400,000, includes $128,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (6) Docket ID Number: EPA-HQ-OAR-2003-0120; National Volatile
Organic Compound Emission Standards for Automobile Refinish Coatings
(Renewal); EPA ICR Number 1765.10; OMB Control Number 2060-0353;
Expiration date February 29, 2024.
    Respondents: Manufacturers and importers of automobile refinish
coatings and coating components.
    Respondent's obligation to respond: Mandatory (40 CFR part 59,
subpart B).
    Estimated number of respondents: 30.
    Frequency of response: Initially.
    Estimated annual burden: 14 hours.
    Estimated annual cost: $980, includes no annualized capital or O&M
costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (7) Docket ID Number: EPA-HQ-OAR-2023-0110; NSPS for Metal Coil
Surface Coating (40 CFR part 60, subpart TT) (Renewal); EPA ICR Number
0660.14; OMB Control Number 2060-0107; Expiration date March 31, 2024.
    Respondents: Metal coil surface coating facilities.

    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart TT).
    Estimated number of respondents: 158.
    Frequency of response: Initially, quarterly, semiannually
    Estimated annual burden: 16,200 hours.
    Estimated annual cost: $1,950,000, includes $170,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (8) Docket ID Number: EPA-HQ-OAR-2023-0111; NSPS for Asphalt
Processing and Roofing Manufacturing (40 CFR part 60, subpart UU)
(Renewal); EPA ICR Number 0661.14; OMB Control Number 2060-0002;
Expiration date April 30, 2024.
    Respondents: Asphalt processing and roofing manufacturing
facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart UU).
    Estimated number of respondents: 144.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 34,100 hours.
    Estimated annual cost: $9,240,000, includes $5,240,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (9) Docket ID Number: EPA-HQ-OAR-2023-0118; NSPS for Onshore
Natural Gas Processing Plants (40 CFR part 60, subparts KKK and LLL)
(Renewal); EPA ICR Number 1086.13; OMB Control Number 2060-0120;
Expiration date April 30, 2024.
    Respondents: Onshore natural gas processing plants.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subparts KKK and LLL).
    Estimated number of respondents: 362.
    Frequency of response: Semiannually.
    Estimated annual burden: 67,530 hours.
    Estimated annual cost: $7,990,000, includes $68,400 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (10) Docket ID Number: EPA-HQ-OAR-2023-0129; The Consolidated Air
Rule (CAR) for the Synthetic Organic Chemical Manufacturing Industry
(SOCMI) (Renewal); EPA ICR Number 1854.14; OMB Control Number 2060-
0443; Expiration date April 30, 2024.
    Respondents: Synthetic organic chemical manufacturing facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subparts Ka, Kb, VV, VVa, DDD, III, NNN, and RRR; 40 CFR part 61,
subparts V, Y, and BB; and 40 CFR part 63, subparts F, G, H, and I).
    Estimated number of respondents: 1,356.
    Frequency of response: Initially, quarterly, semiannually,
annually.
    Estimated annual burden: 1,100,000 hours.
    Estimated annual cost: $128,000,000, includes $64,000,000
annualized capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (11) Docket ID Number: EPA-HQ-OAR-2023-0130; NESHAP for Cellulose
Products Manufacturing (40 CFR part 63, subpart UUUU) (Renewal); EPA
ICR Number 1974.12; OMB Control Number 2060-0488; Expiration date June
30, 2024.
    Respondents: Cellulose products manufacturing plants.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart UUUU).
    Estimated number of respondents: 8.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 7,256 hours.
    Estimated annual cost: $954,624, includes $120,135 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to anticipated shutdown of existing sources.
    (12) Docket ID Number: EPA-HQ-OAR-2023-0109; NESHAP for Beryllium
(40 CFR part 61, subpart C) (Renewal); EPA ICR Number 0193.14; OMB
Control Number 2060-0092; Expiration date November 30, 2024.
    Respondents: Facilities processing beryllium and its derivatives.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subpart C).
    Estimated number of respondents: 33.
    Frequency of response: Initially, monthly.
    Estimated annual burden: 2,670 hours.
    Estimated annual cost: $344,000, includes $35,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (13) Docket ID Number: EPA-HQ-OAR-2023-0124; NESHAP for Aerospace
Manufacturing and Rework Facilities (40 CFR part 63, subpart GG)
(Renewal); EPA ICR Number 1687.13; OMB Control Number 2060-0314;
Expiration date November 30, 2024.
    Respondents: Aerospace manufacturing and rework facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart GG).
    Estimated number of respondents: 144.
    Frequency of response: Initially, semiannually, annually.
    Estimated annual burden: 154,130 hours.
    Estimated annual cost: $15,500,000, includes $144,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (14) Docket ID Number: EPA-HQ-OAR-2023-0134; NESHAP for Gold Mine
Ore Processing (40 CFR part 63, subpart EEEEEEE) (Renewal); EPA ICR
Number 2383.06; OMB Control Number 2060-0659; Expiration date November
30, 2024.
    Respondents: Gold mine ore processing and production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart EEEEEEE).
    Estimated number of respondents: 21.
    Frequency of response: Initially, semiannually, annually.
    Estimated annual burden: 2,840 hours.
    Estimated annual cost: $556,000, includes $227,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (15) Docket ID Number: EPA-HQ-OAR-2023-0114; NSPS for Electric
Utility Steam Generating Units (40 CFR part 60, subpart Da) (Renewal);
EPA ICR Number 1053.14; OMB Control Number 2060-0023; Expiration date
December 31, 2024.
    Respondents: Electric utility steam generating units.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart Da).
    Estimated number of respondents: 732.
    Frequency of response: Initially, semiannually, quarterly.
    Estimated annual burden: 171,000 hours.
    Estimated annual cost: $31,000,000, includes $11,000,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (16) Docket ID Number: EPA-HQ-OAR-2020-0627; NSPS for Petroleum

Refineries (40 CFR part 60, subpart J) (Renewal); EPA ICR Number
1054.15; OMB Control Number 2060-0022; Expiration date December 31,
2024.
    Respondents: Petroleum refineries.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart J).
    Estimated number of respondents: 130.
    Frequency of response: Semiannually.
    Estimated annual burden: 13,800 hours.
    Estimated annual cost: $2,450,000, includes $809,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (17) Docket ID Number: EPA-HQ-OAR-2023-0113; NSPS for Portland
Cement Plants (40 CFR part 60, subpart F) (Renewal); EPA ICR Number
1051.16; OMB Control Number 2060-0025; Expiration date December 31,
2024.
    Respondents: Portland cement facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart F).
    Estimated number of respondents: 92.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 14,100 hours.
    Estimated annual cost: $2,390,000, includes $744,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to anticipated shutdown of existing sources.
    (18) Docket ID Number: EPA-HQ-OAR-2020-0628; NSPS for Sulfuric Acid
Plants (40 CFR part 60, subpart H) (Renewal); EPA ICR Number 2060-0041;
OMB Control Number 1057.16; Expiration date December 31, 2024.
    Respondents: Sulfuric acid manufacturing plants.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart H).
    Estimated number of respondents: 53.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 13,500 hours.
    Estimated annual cost: $1,900,000, includes $309,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (19) Docket ID Number: EPA-HQ-OAR-2023-0120; NSPS for Glass
Manufacturing Plants (40 CFR part, 60 subpart CC) (Renewal); EPA ICR
Number 1131.14; OMB Control Number 2060-0054; Expiration date December
31, 2024.
    Respondents: Glass manufacturing plants.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart CC).
    Estimated number of respondents: 41.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 850 hours.
    Estimated annual cost: $338,000, includes $238,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (20) Docket ID Number: EPA-HQ-OAR-2020-0633; NSPS for Polymeric
Coating of Supporting Substrates Facilities (40 CFR part 60, subpart
VVV) (Renewal); EPA ICR Number 1284.13; OMB Control Number 2060-0181;
Expiration date December 31, 2024.
    Respondents: Facilities engaged in polymeric coating of supporting
substrates.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart VVV).
    Estimated number of respondents: 74.
    Frequency of response: Initially, quarterly, semiannually.
    Estimated annual burden: 16,400 hours.
    Estimated annual cost: $2,770,000, includes $826,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected increase in burden due
to an increase in the number of sources subject to the regulation.
    (21) Docket ID Number: EPA-HQ-OAR-2023-0121; NSPS for Small
Industrial-Commercial-Institutional Steam Generating Units (40 CFR part
60, subpart Dc) (Renewal); EPA ICR Number 1564.12; OMB Control Number
2060-0202; Expiration date December 31, 2024.
    Respondents: Small industrial-commercial-institutional steam
generating units.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart Dc).
    Estimated number of respondents: 323.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 219,000 hours.
    Estimated annual cost: $38,300,000, includes $12,600,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected increase in burden due
to an increase in the number of sources subject to the regulation.
    (22) Docket ID Number: EPA-HQ-OAR-2023-0112; NSPS for Calciners and
Dryers in Mineral Industries (40 CFR part 60, subpart UUU) (Renewal);
EPA ICR Number 0746.12; OMB Control Number 2060-0251; Expiration date
December 31, 2024.
    Respondents: Mineral processing plants with calciners and dryers.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart UUU).
    Estimated number of respondents: 167.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 6,630 hours.
    Estimated annual cost: $887,000, includes $109,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (23) Docket ID Number: EPA-HQ-OAR-2011-0371; National Volatile
Organic Compound Emission Standards for Architectural Coatings
(Renewal); EPA ICR Number 1750.10; OMB Control Number 2060-0393;
Expiration date December 31, 2024.
    Respondents: Manufacturers and importers of architectural coatings.
    Respondent's obligation to respond: Mandatory (40 CFR part 59,
subpart D).
    Estimated number of respondents: 500.
    Frequency of response: Initially, annually.
    Estimated annual burden: 14,661 hours.
    Estimated annual cost: $1,484,441, includes no annualized capital
or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (24) Docket ID Number: EPA-HQ-OAR-2023-0135; NESHAP for Brick and
Structural Clay Products Manufacturing (40 CFR part 63, subpart JJJJJ)
(Renewal); EPA ICR Number 2509.03; OMB Control Number 2030-0047;
Expiration date February 28, 2025.
    Respondents: Brick and/or structural clay products manufacturing
facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart JJJJJ).
    Estimated number of respondents: 69.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 20,963 hours.
    Estimated annual cost: $1,113,105 includes $682 annualized capital
or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (25) Docket ID Number: EPA-HQ-OAR-2023-0136; NESHAP for Clay
Ceramics Manufacturing (40 CFR part 63, subpart KKKKK) (Renewal); EPA
ICR Number 2510.03; OMB Control Number 2030-0048; Expiration date
February 28, 2025.

    Respondents: Clay ceramics manufacturing facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart MM).
    Estimated number of respondents: 3.
    Frequency of response: Semiannually.
    Estimated annual burden: 2,323 hours.
    Estimated annual cost: $221,905, includes $99,119 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (26) Docket ID Number: EPA-HQ-OAR-2020-0629; NSPS for Primary and
Secondary Emissions from Basic Oxygen Furnaces (40 CFR part 60,
subparts N and Na) (Renewal); EPA ICR Number 1069.14; OMB Control
Number 2060-0029; Expiration date February 28, 2025.
    Respondents: Iron and steel plants that utilize basic oxygen
furnaces.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subparts N and Na).
    Estimated number of respondents: 13.
    Frequency of response: Semiannually.
    Estimated annual burden: 4,560 hours.
    Estimated annual cost: $562,000, includes $21,600 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to anticipated shutdown of existing sources.
    (27) Docket ID Number: EPA-HQ-OAR-2020-0630; NESHAP for Inorganic
Arsenic Emissions from Glass Manufacturing Plants (40 CFR part 61,
subpart N) (Renewal); EPA ICR Number 1081.14; OMB Control Number 2060-
0043; Expiration date February 28, 2025.
    Respondents: Glass manufacturing plants.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subpart N).
    Estimated number of respondents: 16.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 3,100 hours.
    Estimated annual cost: $423,000, includes $56,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (28) Docket ID Number: EPA-HQ-OAR-2020-0632; NSPS for Lime
Manufacturing (40 CFR part 60, subpart HH) (Renewal); EPA ICR Number
1167.14; OMB Control Number 2060-0063; Expiration date February 28,
2025.
    Respondents: Lime production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart HH).
    Estimated number of respondents: 41.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 3,820 hours.
    Estimated annual cost: $514,000, includes $61,500 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (29) Docket ID Number: EPA-HQ-OAR-2020-0625; NESHAP for Vinyl
Chloride (40 CFR part 61, subpart F) (Renewal); EPA ICR Number 0186.17;
OMB Control Number 2060-0071; Expiration date February 28, 2025.
    Respondents: Ethylene dichloride, polyvinyl chloride, and vinyl
chloride facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subpart F).
    Estimated number of respondents: 16.
    Frequency of response: Initially, quarterly.
    Estimated annual burden: 6,540 hours.
    Estimated annual cost: $1,490,000, includes $720,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (30) Docket ID Number: EPA-HQ-OAR-2020-0631; NSPS for Hot Mix
Asphalt Facilities (40 CFR part 60, subpart I) (Renewal); EPA ICR
Number 1127.14; OMB Control Number 2060-0083; Expiration date February
28, 2025.
    Respondents: Hot mix asphalt facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart I).
    Estimated number of respondents: 828.
    Frequency of response: Initially.
    Estimated annual burden: 4,120 hours.
    Estimated annual cost: $488,000, includes no annualized capital or
O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (31) Docket ID Number: EPA-HQ-OAR-2023-0108; NSPS for Bulk Gasoline
Terminals (40 CFR part 60, subpart XX) (Renewal); EPA ICR Number
0664.14; OMB Control Number 2060-0006; Expiration date February 28,
2025.
    Respondents: Bulk gasoline terminals.
    Respondent's obligation to respond: Mandatory (40 CFR part 60,
subpart XX).
    Estimated number of respondents: 214.
    Frequency of response: Initially.
    Estimated annual burden: 70,900 hours.
    Estimated annual cost: $8,320,000, includes no annualized capital
or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (32) Docket ID Number: EPA-HQ-OAR-2020-0622; NESHAP for Wood
Furniture Manufacturing Operations (40 CFR part 63, subpart JJ)
(Renewal); EPA ICR Number 1716.12; OMB Control Number 2060-0324;
Expiration date February 28, 2025.
    Respondents: Wood furniture manufacturing operations.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart JJ).
    Estimated number of respondents: 230.
    Frequency of response: Initially, quarterly, semiannually.
    Estimated annual burden: 15,900 hours.
    Estimated annual cost: $1,890,000, includes $12,900 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (33) Docket ID Number: EPA-HQ-OAR-2023-0126; NESHAP for Primary
Aluminum Reduction Plants (40 CFR part 63, subpart LL) (Renewal); EPA
ICR Number 1767.10; OMB Control Number 2060-0360; Expiration date
February 28, 2025.
    Respondents: Primary aluminum reduction facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart LL).
    Estimated number of respondents: 8.
    Frequency of response: Initially, quarterly, semiannually,
annually.
    Estimated annual burden: 52,300 hours.
    Estimated annual cost: $6,440,000, includes $310,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to the anticipated shutdown of existing sources.
    (34) Docket ID Number: EPA-HQ-OAR-2020-0624; NESHAP for Chemical
Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone
Semichemical Pulp Mills (40 CFR part 63, subpart MM) (Renewal); EPA ICR
Number 1805.12; OMB Control Number 2060-0377; Expiration date February
28, 2025.
    Respondents: Chemical recovery combustion sources at kraft, soda,
sulfite, and stand-alone semichemical pulp mills.

    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart MM).
    Estimated number of respondents: 104.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 116,982 hours.
    Estimated annual cost: $14,700,000, includes $788,000 annualized
capital or O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (35) Docket ID Number: EPA-HQ-OAR-2020-0636; NESHAP for Primary
Lead Processing (40 CFR part 63, subpart TTT) (Renewal); EPA ICR Number
1856.13; OMB Control Number 2060-0414; Expiration date February 28,
2025.
    Respondents: Facilities engaged in the smelting of lead from ores.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart TTT).
    Estimated number of respondents: 1.
    Frequency of response: Quarterly, semiannually.
    Estimated annual burden: 6,270 hours.
    Estimated annual cost: $912,000, includes $169,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (36) Docket ID Number: EPA-HQ-OAR-2020-0623; NESHAP for Natural Gas
Transmission and Storage (40 CFR part 63, subpart HHH) (Renewal); EPA
ICR Number 1789.12; OMB Control Number 2060-0418; Expiration date
February 28, 2025.
    Respondents: Natural gas transmission and storage facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart HHH).
    Estimated number of respondents: 73.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 3,780 hours.
    Estimated annual cost: $448,000, includes no annualized capital or
O&M costs.
    Changes in estimates: There is a projected increase in burden due
to an increase in the number of sources subject to the regulation.
    (37) Docket ID Number: EPA-HQ-OAR-2020-0638; NESHAP for Leather
Finishing Operations (40 CFR, part 63, subpart TTTT) (Renewal); EPA ICR
Number 1985.11; OMB Control Number 2060-0478; Expiration date February
28, 2025.
    Respondents: Leather finishing facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subpart TTTT).
    Estimated number of respondents: 4.
    Frequency of response: Initially, annually.
    Estimated annual burden: 138 hours.
    Estimated annual cost: $16,300, includes no annualized capital or
O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (38) Docket ID Number: EPA-HQ-OAR-2023-0122; NESHAP for Marine Tank
Vessel Loading Operations (40 CFR part 63, subpart Y) (Renewal); EPA
ICR Number 1679.12; OMB Control Number 2060-0289; Expiration date
February 28, 2025.
    Respondents: Marine tank vessel loading facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart Y).
    Estimated number of respondents: 804.
    Frequency of response: Initially, semiannually, annually.
    Estimated annual burden: 10,700 hours.
    Estimated annual cost: $1,260,000, includes no annualized capital
or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (39) Docket ID Number: EPA-HQ-OAR-2023-0123; NESHAP for Epoxy Resin
and Non-Nylon Polyamide Production (40 CFR part 63, subpart W)
(Renewal); EPA ICR Number 1681.11; OMB Control Number 2060-0290;
Expiration date February 28, 2025.
    Respondents: Epoxy resin and non-nylon polyamide resin production
facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart W).
    Estimated number of respondents: 7.
    Frequency of response: Initially, quarterly, semiannually.
    Estimated annual burden: 3,940 hours.
    Estimated annual cost: $476,000, includes $14,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (40) Docket ID Number: EPA-HQ-OAR-2023-0125; NESHAP for
Shipbuilding and Ship Repair Facilities--Surface Coating (40 CFR part
63, subpart II) (Renewal); EPA ICR Number 1712.12; OMB Control Number
2060-0330; Expiration date February 28, 2025.
    Respondents: Shipbuilding and ship repair surface coating
facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart II).
    Estimated number of respondents: 56.
    Frequency of response: Semiannually.
    Estimated annual burden: 25,600 hours.
    Estimated annual cost: $3,000,000, includes no annualized capital
or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (41) Docket ID Number: EPA-HQ-OAR-2020-0634; NESHAP for the
Secondary Lead Smelter Industry (40 CFR part 63, subpart X) (Renewal);
EPA ICR Number 1686.13; OMB Control Number 2060-0296; Expiration date
February 28, 2025.
    Respondents: Secondary lead smelter facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart X).
    Estimated number of respondents: 12.
    Frequency of response: Semiannually, annually.
    Estimated annual burden: 21,700 hours.
    Estimated annual cost: $2,830,000, includes $251,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (42) Docket ID Number: EPA-HQ-OAR-2023-0127; NESHAP for
Pharmaceutical Production (40 CFR part 63, subpart GGG) (Renewal); EPA
ICR Number 1781.10; OMB Control Number 2060-0358; Expiration date
February 28, 2025.
    Respondents: Pharmaceutical production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart GGG).
    Estimated number of respondents: 27.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 44,300 hours.
    Estimated annual cost: $5,300,000, includes $112,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (43) Docket ID Number: EPA-HQ-OAR-2023-0119; NESHAP for Beryllium
Rocket Motor Fuel Firing (40 CFR part 61, subpart D) (Renewal); EPA ICR
Number 1125.10; OMB Control Number 2060-0394; Expiration date February
28, 2025.
    Respondents: Beryllium rocket motor fuel firing test sites.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subpart D).

    Estimated number of respondents: 1.
    Frequency of response: Initially, monthly.
    Estimated annual burden: 9 hours.
    Estimated annual cost: $1,110, includes no annualized capital or
O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (44) Docket ID Number: EPA-HQ-OAR-2023-0128; NESHAP for Polyether
Polyols Production (40 CFR part 63, subpart PPP) (Renewal); EPA ICR
Number 1811.12; OMB Control Number 2060-0415; Expiration date February
28, 2025.
    Respondents: Polyether polyols production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart PPP).
    Estimated number of respondents: 23.
    Frequency of response: Semiannually.
    Estimated annual burden: 3,710 hours.
    Estimated annual cost: $429,000, includes no annualized capital or
O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (45) Docket ID Number: EPA-HQ-OAR-2023-0133; NESHAP for Site
Remediation (40 CFR part 63, subpart GGGGG) (Renewal); EPA ICR Number
2062.10; OMB Control Number 2060-0534; Expiration date February 28,
2025.
    Respondents: Facilities that conduct site remediation activities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart GGGGG).
    Estimated number of respondents: 30.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 19,724 hours.
    Estimated annual cost: $1,547,910, includes $287,910 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (46) Docket ID Number: EPA-HQ-OAR-2020-0635; NESHAP for Primary
Copper Smelters (40 CFR part 63, subpart QQQ) (Renewal); EPA ICR Number
1850.10; OMB Control Number 2060-0476; Expiration date February 28,
2025.
    Respondents: Primary copper smelters.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart QQQ).
    Estimated number of respondents: 2.
    Frequency of response: Initially, semiannually, annually.
    Estimated annual burden: 6,380 hours.
    Estimated annual cost: $761,000, includes $5,480 annualized capital
or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (47) Docket ID Number: EPA-HQ-OAR-2023-0117; NESHAP for Benzene
Emissions from Benzene Storage Vessels and Coke Oven By-Product
Recovery Plants (40 CFR part 61, subparts L and Y) (Renewal); EPA ICR
Number 1080.17; OMB Control Number 2060-0185; Expiration date February
28, 2025.
    Respondents: Benzene storage vessels and coke oven by-product
recovery plants.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subparts L and Y).
    Estimated number of respondents: 13.
    Frequency of response: Annually, semiannually.
    Estimated annual burden: 1,730 hours.
    Estimated annual cost: $201,000, includes no annualized capital or
O&M costs.
    Changes in estimates: There is a projected decrease in burden due
to a decrease in the number of sources subject to the regulation.
    (48) Docket ID Number: EPA-HQ-OAR-2023-0131; NESHAP for Rubber Tire
Manufacturing (40 CFR part 63, subpart XXXX) (Renewal); EPA ICR Number
1982.05; OMB Control Number 2060-0449; Expiration date February 28,
2025.
    Respondents: Rubber tire manufacturing facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart XXXX).
    Estimated number of respondents: 21.
    Frequency of response: Initially, semiannually, annually.
    Estimated annual burden: 5,870 hours.
    Estimated annual cost: $819,000, includes no annualized capital or
O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (49) Docket ID Number: EPA-HQ-OAR-2017-0685; NESHAP for Metal Coil
Surface Coating Plants (40 CFR part 63, subpart SSSS) (Renewal); EPA
ICR Number 1957.11; OMB Control Number 2060-0487; Expiration date
February 28, 2025.
    Respondents: Metal coil surface coating sources.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart SSSS).
    Estimated number of respondents: 48.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 16,838 hours.
    Estimated annual cost: $2,091,000, includes $243,600 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.
    (50) Docket ID Number: EPA-HQ-OAR-2017-0357; NESHAP for Carbon
Black, Ethylene, Cyanide, and Spandex (40 CFR part 63, subpart YY)
(Renewal); EPA ICR Number 1983.11; OMB Control Number 2060-0489;
Expiration date February 25, 2025.
    Respondents: Carbon black, ethylene, cyanide, and spandex
production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart YY).
    Estimated number of respondents: 61.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 50,300 hours.
    Estimated annual cost: $ 9,340,000, includes $4,015,500 annualized
capital or O&M costs.
    Changes in estimates: There is a projected increase in burden due
to an increase in the number of sources subject to the regulation.
    (51) Docket ID Number: EPA-HQ-OAR-2023-0132; NESHAP for
Hydrochloric Acid Production (40 CFR part 63, subpart NNNNN) (Renewal);
EPA ICR Number 2032.12; OMB Control Number 2060-0529; Expiration date
February 28, 2025.
    Respondents: Hydrochloric acid production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart NNNNN).
    Estimated number of respondents: 19.
    Frequency of response: Initially, semiannually.
    Estimated annual burden: 22,000 hours.
    Estimated annual cost: $1,562,000, includes $162,000 annualized
capital or O&M costs.
    Changes in estimates: There is no projected change in burden from
the previous ICR.

Penny Lassiter,
Director, Sector Policies and Programs Division.
[FR Doc. 2023-10566 Filed 5-17-23; 8:45 am]
BILLING CODE 6560-50-P