[Federal Register Volume 85, Number 14 (Wednesday, January 22, 2020)]
[Notices]
[Pages 3727-3732]
[FR Doc No: 2020-00918]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87978; File No. SR-NYSEArca-2020-03]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE
Arca Equities Fees and Charges To Introduce a New Lead Market Maker
Credit

January 15, 2020.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on January 2, 2020, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'')
filed with the Securities and Exchange Commission (``SEC'' or
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the NYSE Arca Equities Fees and
Charges (``Fee Schedule'') to (1) introduce a new Lead Market Maker
(``LMM'') credit, (2) introduce a new LMM rebate, and (3) replace the
rebate applicable to ETP Holders and Market Makers with a monthly
rebate payable on a per-security basis that is tied to quoting
requirements in NYSE Arca-listed securities. The Exchange proposes to
implement the fee changes effective January 2, 2020. The proposed rule
change is available on the Exchange's website at www.nyse.com, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend the Fee Schedule to (1) introduce a
new LMM \3\ credit, (2) introduce a new LMM rebate, and (3) replace the
rebate applicable to ETP Holders \4\ with a monthly rebate payable on a
per-security basis that is tied to quoting requirements in NYSE Arca-
listed securities.
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    \3\ The term ``Lead Market Maker'' is defined in Rule 1.1(w) to
mean a registered Market Maker that is the exclusive Designated
Market Maker in listings for which the Exchange is the primary
market.
    \4\ All references to ETP Holders in connection with this
proposed fee change include Market Makers.
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    The proposed changes respond to the current competitive environment
where order flow providers have a choice of where to direct liquidity-
providing orders by offering further incentives for ETP Holders and
LMMs to send additional displayed liquidity to the Exchange.
    The Exchange proposes to implement the fee changes effective
January 2, 2020.
Background
    The Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. In Regulation NMS,
the Commission highlighted the importance of market forces in
determining prices and SRO revenues and, also, recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \5\
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    \5\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
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    As the Commission itself recognized, the market for trading
services in NMS stocks has become ``more fragmented and competitive.''
\6\ Indeed, equity trading is currently dispersed across 13
exchanges,\7\ 31 alternative trading systems,\8\ and numerous broker-
dealer internalizers and wholesalers, all competing for order flow.
Based on publicly-available information for November 2019, no single
exchange has more than 18% market share (whether including or excluding
auction volume).\9\ Therefore, no exchange possesses significant
pricing power in the execution of equity order flow. More specifically,
in November 2019, the Exchange had 7.6% market share of executed volume
of equity trades (excluding auction volume).\10\
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    \6\ See Securities Exchange Act Release No. 51808, 84 FR 5202,
5253 (February 20, 2019) (File No. S7-05-18) (Final Rule).
    \7\ See Cboe U.S Equities Market Volume Summary, available at
https://markets.cboe.com/us/equities/market_share. See generally
https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \8\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of
alternative trading systems registered with the Commission is
available at https://www.sec.gov/foia/docs/atslist.htm.
    \9\ See Cboe Global Markets U.S. Equities Market Volume Summary,
available at http://markets.cboe.com/us/equities/market_share/.
    \10\ See id.
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    The Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
move order flow, or discontinue or reduce use of certain categories of
products. While it is not possible to know a firm's reason for shifting
order flow, the Exchange believes that one such reason is because of
fee changes at any of the registered exchanges or non-

exchange venues to which a firm routes order flow. With respect to non-
marketable order flow that would provide displayed liquidity on an
Exchange against which market makers can quote, ETP Holders and LMMs
can choose from any one of the 13 currently operating registered
exchanges to route such order flow. Accordingly, competitive forces
constrain exchange transaction fees and credits that relate to orders
that would provide displayed liquidity on an exchange.
Proposed Rule Change
    The proposed rule change is designed to be available to all ETP
Holders and LMMs on the Exchange, and is intended to provide ETP
Holders and LMMs an opportunity to receive enhanced rebates by quoting
and trading more on the Exchange.
    The Exchange currently provides incentives in the form of tiered
and/or incremental credits to ETP Holders and LMMs who submit orders
that provide displayed liquidity on the Exchange. The Exchange
currently has multiple levels of credits for orders that provide
displayed liquidity that are based on the amount of volume of such
orders that participants send to the Exchange.
    As described in greater detail below, the Exchange proposes the
following changes:
     Adopt a new incremental credit of $0.00005 per share if an
LMM is registered as the LMM in at least 50 but less than 75 Less
Active ETP Securities;
     Adopt a new monthly rebate that ranges between $100 per
security and $50 per security payable to LMMs that quote and trade in
NYSE Arca-listed Tape B Securities that are not actively traded; and
     Adopt an ETF Incentive Program that provides a monthly
rebate on a per-security basis to ETP Holders that meet certain quoting
requirements.
LMM Credits
    The Exchange currently provides tier-based incremental credits to
LMMs \11\ and to ETP Holders affiliated with the LMM that provide
displayed liquidity to the NYSE Arca Book in Tape B Securities.
Specifically, LMMs that are registered as the LMM in Tape B Securities
that have a consolidated average daily volume (``CADV'') in the
previous month of less than 100,000 shares, or 0.0010% of Consolidated
Tape B ADV, whichever is greater (``Less Active ETP Securities''), and
the ETP Holders affiliated with such LMMs, currently receive an
additional credit for orders that provide displayed liquidity to the
Book in any Tape B Securities that trade on the Exchange.\12\ The
current incremental credits and volume thresholds are as follows:
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    \11\ The term ``Lead Market Maker'' is defined in Rule 1.1(w) to
mean a registered Market Maker that is the exclusive Designated
Market Maker in listings for which the Exchange is the primary
market.
    \12\ The Exchange defines ``affiliate'' to ``mean any ETP Holder
under 75% common ownership or control of that ETP Holder.'' See Fee
Schedule, NYSE Arca Marketplace: General.
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     An additional credit of $0.0004 per share if an LMM is
registered as the LMM in at least 300 Less Active ETP Securities
     An additional credit of $0.0003 per share if an LMM is
registered as the LMM in at least 200 but less than 300 Less Active ETP
Securities
     An additional credit of $0.0002 per share if an LMM is
registered as the LMM in at least 100 but less than 200 Less Active ETP
Securities
     An additional credit of $0.0001 per share if an LMM is
registered as the LMM in at least 75 but less than 100 Less Active ETP
Securities
    With this proposed rule change, the Exchange proposes to adopt a
new incremental credit of $0.00005 per share if a LMM is registered as
the LMM in at least 50 but less than 75 Less Active ETP Securities.
    The purpose of the proposed rule change is to encourage LMMs and
ETP Holders to enhance the market quality in Tape B securities that are
listed and traded on the Exchange by offering incremental credits,
which would support the quality of price discovery in Less Active ETP
Securities on the Exchange and provide additional liquidity for
incoming orders for the benefit of all market participants. The
Exchange believes that providing increased credits to LMMs and ETP
Holders that are affiliated with a LMM that add liquidity in Tape B
securities to the Exchange could lead to more LMMs to register to quote
and trade in Less Active ETP Securities. The Exchange believes the
incremental credit for adding liquidity could also encourage
competition in Tape B securities quoted and traded on the Exchange.
    The Exchange does not know how much order flow LMMs and ETP Holders
choose to route to other exchanges or to off-exchange venues. The
incremental credits in NYSE Arca-listed securities are available to all
LMMs that are registered as the LMM in a security, and to ETP Holders
that are affiliated with a LMM. Currently, there are 2 LMMs that meet
the requirements of the proposed tier and that would qualify for the
incremental credit.\13\ Without having a view of a LMM's activity on
other markets and off-exchange venues, the Exchange has no way of
knowing whether this proposed rule change would result in more LMMs
sending their orders in NYSE Arca-listed securities to the Exchange to
qualify for the existing credits or whether this proposed rule change
would result in LMMs to send more of their orders in NYSE Arca-listed
securities to the Exchange to qualify for the proposed new credits. The
Exchange cannot predict with certainty how many LMMs would avail
themselves of this opportunity but additional liquidity-providing
orders would benefit all market participants because it would provide
greater execution opportunities on the Exchange.
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    \13\ As of November 27, 2019, there are 13 LMMs on the Exchange
that could qualify for the incremental rebates for Less Active ETP
Securities, all of whom are affiliated with an ETP holder.
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    Additionally, with this proposed rule change, the Exchange proposes
to adopt a new rebate as another incentive for LMMs to actively improve
market quality in the opening and closing auctions in NYSE Arca-listed
securities that are not actively traded. As proposed, LMMs registered
as the LMM in a NYSE Arca-listed security where the security has been
listed on NYSE Arca for an entire calendar month would be eligible for
a rebate payable each month provided that there has been either an
opening auction or a closing auction of at least one round-lot
conducted in the security each day during the billing month, and where,
in the case of an opening auction, the security's opening auction price
is within 1.50% of the Auction Reference Price (as defined in Rule
7.35-E), and in the case of a closing auction, the security's closing
auction price is within 0.50% of the Auction Reference Price, for every
auction in that security during the billing month. Qualifying LMMs in a
security that meets the criteria described above would receive a
monthly rebate, as follows:
     $100 per security for each security that had a CADV in the
previous month of less than 100,000 shares;
     $75 per security for each security that had a CADV in the
previous month between 100,000 shares and up to 175,000 shares;
     $50 per security for each security that had a CADV in the
previous month between 175,000 shares and up to 250,000 shares.
    The purpose of the proposed rule change is to incentivize LMMs to
increase auction liquidity in less liquid NYSE Arca-listed securities
to support price discovery in the Exchange's opening and closing
auctions for the

benefit of all market participants. The Exchange believes that
providing monthly rebates on a per-security basis could lead to more
LMMs to register in less liquid securities and encourage greater
participation in the opening and closing auctions on the Exchange. The
Exchange believes the proposed monthly rebate, in addition to the
incremental credit for adding liquidity, could encourage competition in
Tape B securities quoted and traded on the Exchange.
ETF Incentive Program
    The Exchange proposes to replace the rebate applicable to ETP
Holders with a monthly rebate payable on a per-security basis that is
tied to quoting requirements in NYSE Arca-listed securities. The
Exchange believes that the proposed ETF Incentive Program (``EIP
Program'') would encourage ETP Holders to maintain better market
quality in NYSE Arca-listed securities, and, in particular, in lower
volume securities.
    The Exchange currently offers an Exchange Traded Fund Liquidity
Provider Program (``ELP Program'') pursuant to which the Exchange
provides an incremental credit of $0.0001 per share to ETP Holders for
providing displayed liquidity that result in an execution to ETP
Holders that meet prescribed quoting standards in NYSE Arca-listed
securities that have a CADV in the previous month of less than 250,000
shares. Under the ELP Program, for each billing month, in at least 50
qualifying securities, an ETP Holder must quote at the National Best
Bid or Offer (``NBBO'') for at least an average of 15% of the time, and
display at least 2,500 shares that are priced no more than 2% away from
the NBBO at least 90% of the time. The Exchange proposes to eliminate
the ELP Program and replace it with the EIP Program.
    The Exchange is now proposing to adopt an incentive program that
would provide ETP Holders with a monthly rebate for each NYSE Arca-
listed security that has been listed on the Exchange for an entire
calendar month and that had a CADV in the previous month of less than
10,000 shares (``EIP Security''). To qualify for the proposed rebate,
an EIP Security must have a time-weighted quoting size at the NBBO.
Specifically, for each billing month, ETP Holders must quote at the
NBBO with average time-weighted minimum bid and minimum offer of at
least 300 on each side (``Share Size''). An ETP Holder with the largest
Share Size in an EIP Security would receive a rebate of $60 per
security that meets the Share Size requirements for the billing month.
An ETP Holder with the second largest Share Size in an EIP Security
would receive a rebate of $40 per security. No registration is required
to participate in the program.
    For example, assume a NYSE Arca-listed security had a CADV in the
previous month of 5,000 shares, and is listed on the Exchange for every
day of a billing month. Further, assume the following:
     ETP Holder 1 has a time-weighted bid size of 800 shares
and a time-weighted offer size of 600 shares, for an average Share Size
of 700 shares.
     The LMM registered as the LMM in the security has a time-
weighted bid size of 400 shares and a time-weighted offer size of 800
shares, for an average Share Size of 600 shares.
     ETP Holder 2 has a time-weighted bid size of 2,000 shares
and a time- weighted offer size of 200 shares, for an average Share
Size of 1,100 shares.
    In the example above, ETP Holder 1 would qualify for the $60 rebate
with an average Share Size of 700 shares, and the LMM would qualify for
the $40 rebate with an average Share Size of 600 shares. While ETP
Holder 2 has the largest average Share Size with 1,100 shares, ETP
Holder 2 had a time-weighted offer size of 200 shares, which is less
than the 300 share requirement, and therefore ETP Holder 2 would not
qualify for the rebate.
    The Exchange will calculate the Share Size for each ETP Holder, on
a daily basis, up to and including the last trading day of a calendar
month to determine at the end of each month whether an ETP Holder is
meeting the requirements of the EIP Program.
    The purpose of the proposed rule change is to provide superior
market quality and price discovery for NYSE Arca-listed securities,
specifically securities that are less active, through a quoting size
requirement that would also promote liquidity in the opening and
closing auction in such securities. The proposed program is intended to
provide a more meaningful incentive to ETP Holders to provide liquidity
in less active securities. The proposed EIP Program would allow the
Exchange to provide financial incentives to ETP Holders as long as they
meet certain prescribed quoting criteria. The Exchange believes this
type of an incentive, which provides a rebate on a per-security basis
rather on a per-transaction basis, would encourage ETP Holders to
provide meaningful quotes in the less active securities that are the
focus of the proposed EIP Program.
    Additionally, for newly listed and low volume ETP securities, the
cost to a firm for making a market, such as holding inventory in the
security, is often not fully offset by the revenue through rebates
provided by the Exchange. In some cases, ETP Holders may even operate
at a loss in new and low volume ETFs. The Exchange believes the
proposed EIP Program, which would compensate ETP Holders on a per-
security basis as long as they meet the prescribed quoting requirement,
is a more deterministic program from an ETP Holder's perspective. The
ETP Holder would decide how many, if any, low volume securities in
which it wants to provide tight and deep markets. The more securities
it provides heightened quoting in, the more the ETP Holder could
collect in the form of the proposed per-security rebate.
    The proposed changes are not otherwise intended to address any
other issues, and the Exchange is not aware of any significant problems
that market participants would have in complying with the proposed
changes.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\14\ in general, and furthers the
objectives of Sections 6(b)(4) and (5) of the Act,\15\ in particular,
because it provides for the equitable allocation of reasonable dues,
fees, and other charges among its members, issuers and other persons
using its facilities and does not unfairly discriminate between
customers, issuers, brokers or dealers.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposed Fee Change Is Reasonable
    As discussed above, the Exchange operates in a highly fragmented
and competitive market. The Commission has repeatedly expressed its
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. Specifically,
in Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \16\
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    \16\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
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    As the Commission itself recognized, the market for trading
services in NMS stocks has become ``more fragmented

and competitive.'' \17\ Indeed, equity trading is currently dispersed
across 13 exchanges,\18\ 31 alternative trading systems,\19\ and
numerous broker-dealer internalizers and wholesalers, all competing for
order flow. As noted above, no exchange possesses significant pricing
power in the execution of equity order flow.
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    \17\ See Securities Exchange Act Release No. 51808, 84 FR 5202,
5253 (February 20, 2019) (File No. S7-05-18) (Final rule).
    \18\ See Cboe Global Markets, U.S Equities Market Volume
Summary, available at https://markets.cboe.com/us/equities/market_share/.
    \19\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of
alternative trading systems registered with the Commission is
available at https://www.sec.gov/foia/docs/atslist.htm.
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    The Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
shift order flow, or discontinue to reduce use of certain categories of
products, in response to fee changes. With respect to non-marketable
order which provide liquidity on an Exchange, ETP Holders can choose
from any one of the 13 currently operating registered exchanges to
route such order flow. Accordingly, competitive forces reasonably
constrain exchange transaction fees that relate to orders that would
provide displayed liquidity on an exchange. Stated otherwise, changes
to exchange transaction fees can have a direct effect on the ability of
an exchange to compete for order flow.
    Given this competitive environment, the proposal represents a
reasonable attempt to attract additional order flow to the Exchange.
    The Exchange believes the proposed rule change to introduce a new
$0.00005 per share incremental credit is reasonable because it is
intended to encourage LMMs to promote price discovery and market
quality in Less Active ETP Securities for the benefit of all market
participants. The Exchange believes the proposed rule change is
reasonable and appropriate in that the credits are based on the amount
of business transacted on the Exchange. The Exchange notes that the
proposed incremental credit is similar to market quality incentive
programs already in place on other markets, such as the Qualified
Market Maker incentive on the Nasdaq Stock Market LLC (``Nasdaq''),
which requires a member on that exchange to provide meaningful and
consistent support to market quality and price discovery by quoting at
the National Best Bid and Offer in a large number of securities. In
return, Nasdaq provides such member with an incremental rebate.\20\
Nasdaq PHLX LLC (``PHLX'') also provides enhanced credits to Market
Makers on certain volumes based on an affiliate's activity.
Specifically, PHLX offers a tiered Customer Rebate Program that
qualifies either a Specialist or Market Maker or its affiliate under
Common Ownership \21\ to an additional rebate provided the Specialist
or Market Maker has reached the Monthly Market Maker Cap.\22\ The
Exchange believes that providing increased credits to ETP Holders and
Market Makers that are affiliated with a LMM that add liquidity in Tape
B securities to the Exchange is reasonable because the Exchange
believes that by providing increased rebates to affiliated ETP Holders
and Market Makers of a LMM, more LMMs will register to quote and trade
in Less Active ETP Securities. The Exchange believes the proposed
incremental credit for adding liquidity is also reasonable because it
will encourage liquidity and competition in Tape B securities quoted
and traded on the Exchange. Moreover, the Exchange believes that the
proposed fee change will incentivize LMMs to register as an LMM in Less
Active ETP Securities and thus, add more liquidity in Tape B securities
to the benefit of all market participants.
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    \20\ See Equity 7 Pricing Schedule, Section 114. Market Quality
Incentive Programs, at http://nasdaq.cchwallstreet.com/NASDAQTools/PlatformViewer.asp?selectednode=chp%5F1%5F1%5F2%5F3&manual=%2Fnasdaq%2Fmain%2Fnasdaq%2Dllcrules%2F.
    \21\ The term ``Common Ownership'' is defined as meaning
``members or member organizations under 75% common ownership or
control.'' See PHLX fee schedule, at http://www.nasdaqtrader.com/Micro.aspx?id=phlxpricing.
    \22\ See Options 7 Pricing Schedule, Section I, B. Customer
Rebate Program, at http://nasdaqphlx.cchwallstreet.com/NASDAQPHLXTools/PlatformViewer.asp?selectednode=chp%5F1%5F1%5F2&manual=%2Fnasdaqomxphlx%2Fphlx%2Fphlx%2Dllcrules%2F. See also Securities Exchange Act
Release No. 70969 (December 3, 2013), 78 FR 73906 (December 9, 2013)
(SR-Phlx-2013-114).
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    Submission of additional liquidity to the Exchange would promote
price discovery and transparency and enhance order execution
opportunities for LMMs from the substantial amounts of liquidity
present on the Exchange. All participants, including LMMs, would
benefit from the greater amounts of liquidity that will be present on
the Exchange, which would provide greater execution opportunities.
    The Exchange believes that proposal to adopt market quality based
incentives under the proposed EIP Program is a reasonable means to
incentivize liquidity provision in ETPs listed on the Exchange. The
marketplace for listings is extremely competitive and the Exchange is
not the only venue for listing ETPs. Competition in ETPs is further
exacerbated by the fact that listings can and do transfer from one
listing market to another. The proposed EIP Program is intended to help
the Exchange compete as an ETP listing venue. Further, the Exchange
notes that the proposed incentives are not transaction fees, nor are
they fees paid by participants to access the Exchange. Rather, the
proposed rebates are based on achieving certain objective market
quality metrics. The Exchange believes providing monthly rebates for
the two largest Share Sizes in less active securities will allow ETP
Holders to anticipate their revenue as participants of the EIP Program
and will incentivize ETP Holders to participate in the EIP Program.
    Given the proposed EIP Program is a new program, the Exchange
cannot be certain that ETP Holders will choose to actively compete for
this incentive. For ETP Holders that do choose to actively participate
by increasing their quoting at the NBBO with a time-weighted minimum
bid and minimum offer of at least 300 shares on each side of their
quote, the Exchange generally expects ETP Holders would receive
payments comparable to what they currently receive under the ELP
Program, with the potential for additional upside when they meet the
quoting requirement in a greater number of less active securities.
    The Exchange believes that eliminating the existing ELP Program is
reasonable because the Exchange is not required to maintain the program
and the Exchange is proposing to implement the new EIP Program in its
place, as described above. The Exchange notes that only 2 ETP Holders
qualified for the ELP Program in November 2019.
    On the backdrop of the competitive environment in which the
Exchange currently operates, the proposed rule change is a reasonable
attempt to increase liquidity on the Exchange and improve the
Exchange's market share relative to its competitors.
The Proposed Fee Change Is an Equitable Allocation of Fees and Credits
    The Exchange believes the proposed rule change to amend the LMM
credits are equitable because they provide discounts that are
reasonably related to the value to the Exchange's market quality
associated with higher volumes. The Exchange further believes that the
proposed incremental rebate is equitable because it is consistent with
the market quality and competitive benefits associated with the fee
program and because the magnitude of the additional rebate is not
unreasonably high in

comparison to the rebate paid with respect to other displayed
liquidity-providing orders. The Exchange believes that it is equitable
to offer increased rebates to LMMs as LMMs are subject to additional
requirements and obligations (such as quoting requirements) that other
market participants are not. When PHLX adopted its proposal to provide
enhanced credits, it noted its belief that the additional rebate it
provides was equitable, and not unfairly discriminatory because, among
other things, PHLX Specialists and Market Makers ``have burdensome
quoting obligations,'' to the market that other market participants do
not, and ``also serve an important role on the Exchange with regard to
order interaction and they provide liquidity in the marketplace.'' \23\
PHLX further noted that the ``proposed differentiation as between
Specialists and Market Makers as compared to other market participants
recognizes the differing contributions made to the trading environment
on the Exchange by these market participants.'' The Exchange also
believes that allowing ETP Holders to receive enhanced credits based on
activities of their affiliates is equitable and not unfairly
discriminatory because the Exchange believes that ETP Holders
affiliated with LMMs may qualify to earn enhanced credits in
recognition of their shared economic interest, which includes the
heightened obligations imposed on LMMs. ETP Holders unaffiliated with
LMMs do not share the same type of economic interests. Further, ETP
Holders not affiliated with a LMM have an opportunity to establish such
affiliation by several means, including but not limited to, a business
combination or the establishment of their own market making operation,
which each unaffiliated firm has the potential to establish.
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    \23\ See Securities Exchange Act Release No. 70969 (December 3,
2013), 78 FR 73906 (December 9, 2013) (SR-Phlx-2013-114).
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    The Exchange believes that the proposed EIP Program represents an
equitable allocation of payments because ETP Holders would be required
to meet prescribed quoting requirements in order to qualify for the
payments, as described above. Where an ETP Holder does not achieve the
largest Share Size in an EIP Security or second largest Share Size in
an EIP Security, it will not receive the payments. Further, all ETP
Holders on the Exchange are eligible to participate in the program and
could do so by simply meeting the quoting requirement. The Exchange has
designed the EIP Program to be sustainable over the long-term and
generally expects that payments made to ETP Holders under the program
will be comparable to payments the Exchange currently makes under the
ELP Program. As such, the Exchange believes that the proposal
represents an equitable allocation of payments.
    The Exchange believes that eliminating the existing ELP Program is
equitable because the Exchange is not required to maintain the program
and the Exchange is eliminating the program for all ETP Holders.
The Proposed Fee Change Is Not Unfairly Discriminatory
    The Exchange believes that the proposed rule change is not unfairly
discriminatory. In the prevailing competitive environment, LMMs and ETP
Holders are free to disfavor the Exchange's pricing if they believe
that alternatives offer them better value.
    The Exchange believes it is not unfairly discriminatory to adopt an
additional incremental credit applicable to a LMM, and ETP Holders
affiliated with such LMM, for orders that provide displayed liquidity
in NYSE Arca-listed securities for which they are registered as the
LMM, as the proposed credits would be provided on an equal basis to all
such participants. Further, the Exchange believes the proposed
additional incremental credit would incentivize LMMs that meet the
current tiered requirements to send more orders to the Exchange to
qualify for higher credits. The Exchange also believes that the
proposed change is not unfairly discriminatory because it is reasonably
related to the value to the Exchange's market quality associated with
higher volume.
    The proposal to introduce an additional LMM credit neither targets
nor will it have a disparate impact on any particular category of
market participant. The proposal does not permit unfair discrimination
because the proposed threshold would be applied to all similarly
situated LMMs, who would all be eligible for the same credit on an
equal basis. Accordingly, no LMM already operating on the Exchange
would be disadvantaged by this allocation of fees.
    The Exchange believes that the proposed EIP Program is not unfairly
discriminatory because ETP Holders would be required to meet prescribed
quoting requirements in order to qualify for the payments, as described
above. Where an ETP Holder does not achieve the largest Share Size in
an EIP Security or second largest Share Size in an EIP Security, it
will not receive the payments. Further, all ETP Holders on the Exchange
are eligible to participate in the program and could do so by simply
meeting the quoting requirement. The Exchange has designed the EIP
Program to be sustainable over the long-term and generally expects that
payments made to ETP Holders under the program will be comparable to
payments the Exchange currently makes under the ELP Program. As such,
the Exchange believes that the proposal is not unfairly discriminatory.
    The Exchange believes that eliminating the existing ELP Program is
not unfairly discriminatory because the Exchange is not required to
maintain the program and the Exchange is eliminating the program for
all ETP Holders.
    Finally, the submission of orders to the Exchange is optional for
ETP Holders in that they could choose whether to submit orders to the
Exchange and, if they do, the extent of its activity in this regard.
The Exchange believes that it is subject to significant competitive
forces, as described below in the Exchange's statement regarding the
burden on competition.
    For the foregoing reasons, the Exchange believes that the proposal
is consistent with the Act.

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

    In accordance with Section 6(b)(8) of the Act,\24\ the Exchange
believes that the proposed rule change would not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. Instead, as discussed above, the Exchange believes
that the proposed changes would encourage the submission of additional
liquidity to a public exchange, thereby promoting market depth, price
discovery and transparency and enhancing order execution opportunities
for ETP Holders. As a result, the Exchange believes that the proposed
change furthers the Commission's goal in adopting Regulation NMS of
fostering integrated competition among orders, which promotes ``more
efficient pricing of individual stocks for all types of orders, large
and small.'' \25\
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78f(b)(8).
    \25\ See Securities Exchange Act Release No. 51808, 70 FR 37495,
37498-99 (June 29, 2005) (S7-10-04) (Final Rule).
---------------------------------------------------------------------------

    Intramarket Competition. The proposed change is designed to attract
additional order flow to the Exchange. The Exchange believes that the
new incremental credit applicable to LMMs would continue to incentivize
market participants to direct their displayed order flow to the
Exchange. Greater

liquidity benefits all market participants on the Exchange by providing
more trading opportunities and encourages LMMs, to send orders to the
Exchange, thereby contributing to robust levels of liquidity, which
benefits all market participants. The proposed new incremental credit
would be applicable to all similarly-situated market participants, and,
as such, the proposed change would not impose a disparate burden on
competition among market participants on the Exchange. The Exchange
believes the proposed EIP Program would enhance competition as it is
intended to increase the Exchange's competitiveness in NYSE Arca-listed
ETPs, and all ETP Holders would be able to participate in the program
uniformly. Accordingly, the Exchange does not believe that the proposed
change will impair the ability of ETP Holders to maintain their
competitive standing.
    Intermarket Competition. The Exchange operates in a highly
competitive market in which market participants can readily choose to
send their orders to other exchange and off-exchange venues if they
deem fee levels at those other venues to be more favorable. As noted
above, the Exchange's market share of intraday trading (i.e., excluding
auctions) was 7.6% in November 2019. In such an environment, the
Exchange must continually adjust its fees and rebates to remain
competitive with other exchanges and with off-exchange venues. Because
competitors are free to modify their own fees and credits in response,
and because market participants may readily adjust their order routing
practices, the Exchange does not believe its proposed fee change can
impose any burden on intermarket competition.
    The Exchange believes that the proposed change could promote
competition between the Exchange and other execution venues, including
those that currently offer similar order types and comparable
transaction pricing, by encouraging additional orders to be sent to the
Exchange for execution.

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

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

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \26\ of the Act and subparagraph (f)(2) of Rule
19b-4 \27\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(3)(A).
    \27\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \28\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2020-03 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2020-03. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEArca-2020-03, and should be
submitted on or before February 12, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\29\
---------------------------------------------------------------------------

    \29\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-00918 Filed 1-21-20; 8:45 am]
 BILLING CODE 8011-01-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

Issued by the Department of Transportation on November 9, 2004

   NOTICE OF ACTION TAKEN -- DOCKET OST-2004-19436

________________________________________________________________________
_________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Joint Application of   Aerovias de Mexico, S.A. de C.V. (Aeromexico) and
Delta Air Lines, Inc. (Delta) filed   10/19/04 for:

XX  Exemption for Aeromexico for one year under 49 U.S.C. 40109 to
provide the following service:

Scheduled foreign air transportation of persons, property, and mail
between Mexico City, Mexico, and Washington, D.C.

XX  Statement of authorization for Aeromexico, for indefinite duration,
under Part 212 of the Department’s Regulations to:

Display Delta’s “DL” designator code on flights operated by
Aeromexico between Mexico City, Mexico, and Washington, D.C.

XX  Exemption for Delta for two years under 49 U.S.C. 40109 to provide
the following service:

Scheduled foreign air transportation of persons, property, and mail
between the terminal point Washington, D.C., and the terminal point
Mexico City, Mexico, and to combine this exemption authority with all of
Delta’s existing certificate and exemption authority, consistent with
applicable international agreements.  Delta proposes to use the
requested authority by placing its airline designator code on flights
operated by Aeromexico in the subject market.

Applicant reps: Robert E. Cohn<PHONE_NUMBER> (Delta)   DOT Analyst:
Thuy H. Cooper<PHONE_NUMBER>

           William C. Evans<PHONE_NUMBER> (Aeromexico)

D I S P O S I T I O N

XX  Granted (subject to conditions, see below)

The above action granting exemption authority to Aeromexico was
effective when taken: November 9, 2004, through November 9, 2005.

The above action granting exemption authority to Delta was effective
when taken: November 9, 2004, through November 9, 2006.

The above action granting a statement of authorization to Aeromexico was
effective when taken: November 9, 2004, and will remain in effect
indefinitely, subject to the conditions below.

Action taken by:   Paul L. Gretch, Director

		    Office of International Aviation

XX  The authority granted is consistent with the aviation agreement
between the United States and Mexico.

2

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:

XX Delta’s certificates of public convenience and necessity

XX Aeromexico’s foreign air carrier permit

XX Standard exemption conditions (attached)

Conditions:  The U.S.-Mexico exemption authority granted to Delta is
subject to the dormancy notice requirements set forth in condition 7 of
Appendix A of Order 88-10-2, and is limited to operations conducted on a
code-share basis only.

The route integration authority granted to Delta is subject to the
condition that any service provided under this exemption shall be
consistent with all applicable agreements between the United States and
the foreign countries involved. Furthermore, (a) nothing in the award of
the route integration authority granted should be construed as
conferring upon Delta rights (including fifth-freedom intermediate
and/or beyond rights) to serve markets where U.S. carrier entry is
limited unless Delta notifies the Department of its intent to serve such
a market and unless and until the Department has completed any necessary
carrier selection procedures to determine which carrier(s) should be
authorized to exercise such rights); (b) should there be a request by
any carrier to use the limited-entry route rights that are included in
Delta’s authority by virtue of the route integration exemption granted
here, but that are not then being used by Delta, the holding of such
authority by route integration will not be considered as providing any
preference for Delta in a competitive carrier selection proceeding to
determine which carrier(s) should be entitled to use the authority at
issue.

The Statement of Authorization granted to Aeromexico is subject to the
following conditions:

The statement of authorization will remain in effect only as long as
Delta and Aeromexico continue to hold the underlying authority to
operate the code-share services at issue, and the code-share agreement
providing for the code-share operations remains in effect.

Delta and/or Aeromexico must promptly notify the Department (Office of
International Aviation) if the code-share agreement is no longer
effective or if the carriers decide to cease operating all or a portion
of the approved code-share services. (Such notice should be filed in
Docket OST-2004-19436).

The code-sharing operations conducted under this authority must comply
with 14 CFR 257 and with any amendment to the Department’s regulations
concerning code-share arrangements that may be adopted. Notwithstanding
any provisions in the contract between the carriers, our approval here
is expressly conditioned upon the requirements that the subject foreign
air transportation be sold in the name of the carrier holding out such
service in computer reservation systems and elsewhere; that the carrier
selling such transportation (i.e., the carrier shown on the ticket)
accept responsibility for the entirety of the code-share journey for all
obligations established in its contract of carriage with the passenger;
and that the passenger liability of the operating carrier be unaffected;
and the operating carrier shall not permit the code of its U.S.
code-sharing partner to be carried on any flight that enters, departs,
or transits the airspace of any area for whose airspace the Federal
Aviation Administration has issued a flight prohibition; and

The authority granted here is specifically conditioned so that neither
Delta nor Aeromexico shall give any force or effect to any contractual
provisions between themselves that are contrary to these conditions.

________________________________________________________________________
___

On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found the applicants qualified to provide
the exemption services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) grant of the authority was consistent with the public
interest; and (3) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.

3

To the extent not granted, we denied all requests in the referenced
Docket.  We may amend, modify, or revoke the authority granted in this
Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp"
http://dms.dot.gov//reports/reports_aviation.asp

Foreign Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier
applicant(s) shall:

(1)  Not conduct any operations unless it holds a currently effective
authorization from its homeland for such operations, and it has filed a
copy of such authorization with the Department;

(2)  Comply with all applicable requirements of the Federal Aviation
Administration, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 49 CFR Part 1546 or 1550, as
applicable.  To assure compliance with all applicable U.S. Government
requirements concerning security, the holder shall, before commencing
any new service (including charter flights) from a foreign airport that
would be the holder’s last point of departure for the United States,
contact its International Principal Security Inspector (IPSI) to advise
the IPSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served;

(3)  Comply with the requirements for minimum insurance coverage
contained in 14 CFR Part 205, and, prior to the commencement of any
operations under this authority, file evidence of such coverage, in the
form of a completed OST Form 6411, with the Federal Aviation
Administration’s Program Management Branch (AFS-260), Flight Standards
Service (any changes to, or termination of, insurance also shall be
filed with that office);

(4)  Not operate aircraft under this authority unless it complies with
operational safety requirements at least equivalent to Annex 6 of the
Chicago Convention;

(5)  Conform to the airworthiness and airman competency requirements of
its Government for international air services;

(6)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR Part 203,
concerning waiver of Warsaw Convention liability limits and defenses;

(7)  Agree that operations under this authority constitute a waiver of
sovereign immunity, for the purposes of 28 U.S.C. 1605(a), but only with
respect to those actions or proceedings instituted against it in any
court or other tribunal in the United States that are: (a)  based on its
operations in international air transportation that, according to the
contract of carriage, include a point in the United States as a point of
origin, point of destination, or agreed stopping place, or for which the
contract of carriage was purchased in the United States; or (b)  based
on a claim under any international agreement or treaty cognizable in any
court or other tribunal of the United States.  In this condition, the
term "international air transportation" means "international
transportation" as defined by the Warsaw Convention, except that all
States shall be considered to be High Contracting Parties for the
purpose of this definition;

(8)  Except as specifically authorized by the Department, originate or
terminate all flights to/from the United States in its homeland;

(9)  Comply with the requirements of 14 CFR Part 217, concerning the
reporting of scheduled, nonscheduled, and charter data;

(10) If charter operations are authorized, except as otherwise provided
in the applicable aviation agreement, comply with the Department's rules
governing charters (including 14 CFR Parts 212 and 380); and

(11) Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department, with all applicable orders or regulations of other U.S.
agencies and courts, and with all applicable laws of the United States.

This authority shall not be effective during any period when the holder
is not in compliance with the conditions imposed above.  Moreover, this
authority cannot be sold or otherwise transferred without explicit
Department approval under Title 49 of the U.S. Code.

5/04

U.S. Carrier Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier
applicant(s) shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

(5)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR 203, concerning
waiver of Warsaw Convention liability limits and defenses;

(6)  Comply with all applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security, including, but not limited to, 49 CFR Part 1544.
To assure compliance with all applicable U.S. Government requirements
concerning security, the holder shall, before commencing any new service
(including charter flights) to or from a foreign airport, contact its
International Principal Security Inspector (IPSI) to advise the IPSI of
its plans and to find out whether the Transportation Security
Administration has determined that security is adequate to allow such
airport(s) to be served; and

(7)  Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department of Transportation, with all applicable orders and regulations
of other U.S. agencies and courts, and with all applicable laws of the
United States.

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

05/2004

 We expect this notification to be received within 10 days of such
non-effectiveness or of such decision.


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

General Comment:Dear Mr. Zeller:

I am writing as an individual consumer to request an extension of the comment period for the Food and Drug Administration's ("FDA") Proposed Rule Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking and Prevention and Tobacco Control Act (the "Proposed Rule") published at 79 Fed. Reg. 23,142 and Federal Register No. 2014-09491. On behalf of myself, I am requesting that the comment period for the Proposed Rule be extended by the FDA for an additional 105 days, from its current 75-day period, to 180 days.

The Proposed Rule raises a number of significant issues and questions that are important and relevant to me, as a consumer of products that are proposed for regulation under the Proposed Rule. I definitely agree that the vaping industry should be regulated, and expect positive changes to be made through regulation. However, as an individual consumer of vaping products, I need time to review the proposals. I want to provide my thoughts and comments on many of these issues, but my time to devote to researching and providing thoughtful comments on these important questions is limited. I have already spent many hours researching and dissecting these issues, but they take time. I know that the FDA took many years to even come up with the Proposed Rule, so I do not think it is at all unreasonable to allow the public a mere six months to comment on it. This is our only opportunity, as consumers, to provide our feedback.

I feel very strongly about e-cigarettes as an alternative to combustible cigarettes. I understand that there are many untested variables when it comes to the e-liquids that are out there. That is mainly the reason why I welcome higher regulations. However, I firmly believe the adverse effects on a person's health from vaping is greatly lower than with combustible cigarettes.  I wish to provide you with my personal story, as well as science- and evidence-based responses to your questions so that you can take my comment into account. I realize that the FDA has the authority under 21 CFR 10.40 to extend this time frame and that the FDA has exercised this authority on numerous occasions in the past. I would therefore ask that you do so here, so that all stakeholders have the opportunity to provide their comments on this proposed regulation.

I appreciate your consideration of my request and am happy to discuss this issue with you further.


[Federal Register: February 7, 2006 (Volume 71, Number 25)]
[Notices]
[Page 6297-6298]
[DOCID:fr07fe06-63]

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SECURITIES AND EXCHANGE COMMISSION

[Release Nos. 33-8659; 34-53204, File No. 265-23]

Advisory Committee on Smaller Public Companies

AGENCY: Securities and Exchange Commission.

ACTION: Notice of Meeting of SEC Advisory Committee on Smaller Public
Companies.

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

    The Securities and Exchange Commission Advisory Committee on
Smaller Public Companies is providing

notice that it will hold a public meeting on Tuesday, February 21,
2006, in Multi-Purpose Room L006 of the Commission's headquarters, 100
F Street, NE., Washington, DC 20549, beginning at 9 a.m. The meeting is
expected to last until approximately 4 p.m., with a lunch break from
approximately noon to 1 p.m. The meeting will be audio webcast on the
Commission's Web site at http://www.sec.gov.

    The agenda for the meeting includes a discussion of a proposal to
publish a draft of the Advisory Committee's Final Report for public
comment. The Advisory Committee may also discuss written statements
received and other matters of concern. The public is invited to submit
written statements for the meeting.

DATES: Written statements should be received on or before February 15,
2006.

ADDRESSES: Written statements may be submitted by any of the following
methods:

Electronic Statements

     Use the Commission's Internet submission form (http://www.sec.gov/info/smallbus/acspc.shtml.
); or     Send an e-mail message to<EMAIL_ADDRESS>Please

include File Number 265-23 on the subject line; or

Paper Statements

     Send paper statements in triplicate to Nancy M. Morris,
Committee Management Officer, Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File No. 265-23. This file number
should be included on the subject line if e-mail is used. To help us
process and review your statement more efficiently, please use only one
method. The Commission staff will post all statements on the Advisory
Committee's Web site (http://www.sec.gov/info/smallbus/acspc.shtml).

    Statements also will be available for public inspection and copying
in the Commission's Public Reference Room, 100 F Street, NE., Room
1580, Washington, DC 20549. All statements received will be posted
without change; we do not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly.

FOR FURTHER INFORMATION CONTACT: Kevin M. O'Neill, Special Counsel, at
(202) 551-3260, Office of Small Business Policy, Division of
Corporation Finance, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION: In accordance with Section 10(a) of the
Federal Advisory Committee Act, 5 U.S.C.-App. 1, section 10(a), and the
regulations thereunder, Gerald J. Laporte, Designated Federal Officer
of the Committee, has ordered publication of this notice.

     Dated: February 1, 2006.
Nancy M. Morris,
Committee Management Officer.
[FR Doc. E6-1619 Filed 2-6-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Notices]
[Pages 16374-16378]
[FR Doc No: 2015-06970]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9925-10-Region-5]

Notice of Final Decision To Reissue the Vickery Environmental,
Inc. Land-Ban Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Final Decision on a Request by Vickery Environmental,
Inc. of Vickery, Ohio to Reissue its Exemption from the Hazardous and
Solid Waste Amendments of the Resource Conservation and Recovery Act.

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

SUMMARY: Notice is hereby given by the U.S. Environmental Protection
Agency (U.S. EPA or Agency) that an exemption to the land disposal
restrictions under the 1984 Hazardous and Solid Waste Amendments (HSWA)
to the Resource Conservation and Recovery Act (RCRA) has been granted
to Vickery Environmental, Inc. (VEI) of Vickery, Ohio for four Class I
injection wells located in Vickery, Ohio. As required by 40 CFR part
148, VEI has demonstrated, to a reasonable degree of certainty, that
there will be no migration of hazardous constituents out of the
injection zone or into an underground source of drinking water (USDW)
for at least 10,000 years. This final decision allows the continued
underground injection by VEI of only those hazardous wastes designated
by the codes in Table 1 through its four Class I hazardous waste
injection wells identified as #2, #4, #5 and #6. This decision
constitutes a final U.S. EPA action for which there is no
administrative appeal.

DATES: This action is effective as of March 27, 2015.

FOR FURTHER INFORMATION CONTACT: Stephen Roy, Lead Petition Reviewer,
U.S. EPA, Region 5, Water Division, Underground Injection Control
Branch, WU-16J, Environmental Protection Agency, 77 W. Jackson Blvd.,
Chicago, Illinois 60604-3590; telephone number:<PHONE_NUMBER>; fax
number<PHONE_NUMBER>; email address<EMAIL_ADDRESS>Copies of
the petition and all pertinent information are on file and are part of
the Administrative Record. It is recommended that you contact the lead
reviewer prior to reviewing the Administrative Record.

SUPPLEMENTARY INFORMATION: VEI submitted a request for reissuance of
its existing exemption from the land disposal restrictions of hazardous
waste in September, 2007. U.S. EPA staff reviewed all data pertaining
to the petition, including, but not limited to, well construction, well
operations, regional and local geology, seismic activity, penetrations
of the confining zone, and computational models of the injection zone.
U.S. EPA has determined that the hydrogeological and geochemical
conditions at the site and the nature of the waste streams are such
that reliable predictions can be made that fluid movement conditions
are such that injected fluids will not migrate out of the injection
zone within 10,000 years, as set forth at 40 CFR part 148. The
injection zone includes the injection interval into which fluid is
directly emplaced and the overlying arrestment interval into which it
may diffuse. The injection interval for the VEI facility is composed of
the Mt. Simon Sandstone between 2791 and 2950 feet below ground level.
The arrestment interval for the VEI facility is composed of the Rome,
Conasauga, Kerbel and Knox Formations between 2360 and 2791 feet below
ground level. The confining zone at the VEI facility is composed of the
Black River and Wells Creek Formations between 1816 and 2360 feet below
ground level. The confining zone is separated from the lowermost
underground source of drinking water (at a depth of 574 feet below
ground level) by a sequence of permeable and less permeable sedimentary
rocks. This sequence provides additional protection from fluid
migration into drinking water sources.
    U.S. EPA issued a draft decision, which described the reasons for
granting this exemption in more detail, a fact sheet, which summarized
these reasons, and a public notice on December 5, 2014, pursuant to 40
CFR 124.10. U.S. EPA held a public hearing on January 8, 2015, but no
one elected to comment on the draft decision at the hearing. The public
comment period ended on January 20, 2015. U.S. EPA received comments
from VEI but no other parties during the comment period. U.S. EPA has
prepared a response to VEI's comments, which can be viewed at the
following URL: http://www.epa.gov/region5/water/uic/pubpdf/vei-response-to-comments.pdf. This document is part of the Administrative
Record for this decision. U.S. EPA is issuing the final exemption with
the changes identified in the response to comments.

Conditions

    This exemption is subject to the following conditions. Non-
compliance with any of these conditions is grounds for termination of
the exemption:
    (1) The exemption applies to the four existing hazardous waste
injection wells, #2, #4, #5, and #6 located at the VEI facility at 3956
State Route 412, Vickery, Ohio.
    (2) Injection of restricted hazardous waste is limited to the part
of the Mt. Simon Sandstone at depths between 2791 and 2950 feet below
the surface level.
    (3) Only restricted wastes designated by the RCRA waste codes found
in Table 1 may be injected.
    (4) Maximum concentrations of chemicals that are allowed to be
injected are listed in Table 2.
    (5) The average specific gravity of the injected waste stream must
be no less than 1.08 over a one-year period.
    (6) VEI may inject up to a combined total of 240 gallons per minute
into Well #2, #4, #5, and #6, based on a monthly average.
    (7) This exemption is approved for the 20-year modeled injection
period, which ends on June 30, 2027. VEI may petition U.S. EPA for a
reissuance of the

exemption beyond that date, provided that a new and complete petition
and no-migration demonstration is received at U.S. EPA, Region 5, by
January 31, 2027.
    (8) VEI must submit, within 90 days after the exemption is granted,
an approvable plan to demonstrate that chemicals listed in Table 2 are
not or cannot be injected above the listed limits. Upon U.S. EPA's
approval of this plan, VEI shall implement the plan per the schedule in
the approved plan.
    (9) VEI must submit copies of the reports on the annual bottom-hole
pressure surveys conducted in well #2, #4, #5 or #6 to U.S. EPA when
these reports are submitted to the Ohio Environmental Protection Agency
(Ohio EPA). The reports must include a comparison of reservoir
parameters determined from the fall-off test, such as permeability and
long-term shut-in pressure, with parameters used in the approved no-
migration petition.
    (10) VEI must submit copies of the reports on the annual
radioactive tracer surveys and annulus pressure tests for wells #2, #4,
#5 and #6 to U.S. EPA when these reports are submitted to Ohio EPA.
    (11) VEI shall notify U.S. EPA in writing if any injection well
loses mechanical integrity, prior to any workover or plugging when
these notifications are submitted to Ohio EPA.
    (12) The petitioner must fully comply with all requirements set
forth in Underground Injection Control Permits 03-72-009-PTO-I, 03-72-
011-PTO-I, 03-72-012-PTO-I, and 03-72-013-PTO-I issued by Ohio EPA.
    (13) Upon the expiration, cancellation, reissuance, or modification
of the permits referenced above, this exemption is subject to review.
    (14) Whenever U.S. EPA determines that the basis for approval of a
petition under 40 CFR Sec. Sec.  148.23 and 148.24 may no longer be
valid, U.S. EPA may terminate this exemption and will require a new
demonstration in accordance with 40 CFR Sec.  148.20.

                                                Table 1--List of RCRA Waste Codes Approved for Injection
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
      D001         D002         D003         D004         D005         D006         D007         D008         D009         D010        D011        D012
      D013         D014         D015         D016         D017         D018         D019         D020         D021         D022        D023        D024
      D025         D026         D027         D028         D029         D030         D031         D032         D033         D034        D035        D036
      D037         D038         D039         D040         D041         D042         D043         F001         F002         F003        F004        F005
      F006         F007         F008         F009         F010         F011         F012         F019         F020         F021        F022        F023
      F024         F025         F026         F027         F028         F032         F034         F035         F037         F038        F039        K001
      K002         K003         K004         K005         K006         K007         K008         K009         K010         K011        K013        K014
      K015         K016         K017         K018         K019         K020         K021         K022         K023         K024        K025        K026
      K027         K028         K029         K030         K031         K032         K033         K034         K035         K036        K037        K038
      K039         K040         K041         K042         K043         K044         K045         K046         K047         K048        K049        K050
      K051         K052         K060         K061         K062         K069         K071         K073         K083         K084        K085        K086
      K087         K088         K093         K094         K095         K096         K097         K098         K099         K100        K101        K102
      K103         K104         K105         K106         K107         K108         K109         K110         K111         K112        K113        K114
      K115         K116         K117         K118         K123         K124         K125         K126         K131         K132        K136        K140
      K141         K142         K143         K144         K145         K147         K148         K149         K150         K151        K156        K157
      K158         K159         K161         K169         K170         K171         K172         K174         K175         K176        K177        K178
      K181         P001         P002         P003         P004         P005         P006         P007         P008         P009        P010        P011
      P012         P013         P014         P015         P016         P017         P018         P020         P021         P022        P023        P024
      P026         P027         P028         P029         P030         P031         P033         P034         P036         P037        P038        P039
      P040         P041         P042         P043         P044         P045         P046         P047         P048         P049        P050        P051
      P054         P056         P057         P058         P059         P060         P062         P063         P064         P065        P066        P067
      P068         P069         P070         P071         P072         P073         P074         P075         P076         P077        P078        P081
      P082         P084         P085         P087         P088         P089         P092         P093         P094         P095        P096        P097
      P098         P099         P101         P102         P103         P104         P105         P106         P108         P109        P110        P111
      P112         P113         P114         P115         P116         P118         P119         P120         P121         P122        P123        P127
      P128         P185         P188         P189         P190         P191         P192         P194         P196         P197        P198        P199
      P201         P202         P203         P204         P205         U001         U002         U003         U004         U005        U006        U007
      U008         U009         U010         U011         U012         U014         U015         U016         U017         U018        U019        U020
      U021         U022         U023         U024         U025         U026         U027         U028         U029         U030        U031        U032
      U033         U034         U035         U036         U037         U038         U039         U041         U042         U043        U044        U045
      U046         U047         U048         U049         U050         U051         U052         U053         U055         U056        U057        U058
      U059         U060         U061         U062         U063         U064         U066         U067         U068         U069        U070        U071
      U072         U073         U074         U075         U076         U077         U078         U079         U080         U081        U082        U083
      U084         U085         U086         U087         U088         U089         U090         U091         U092         U093        U094        U095
      U096         U097         U098         U099         U101         U102         U103         U105         U106         U107        U108        U109
      U110         U111         U112         U113         U114         U115         U116         U117         U118         U119        U120        U121
      U122         U123         U124         U125         U126         U127         U128         U129         U130         U131        U132        U133
      U134         U135         U136         U137         U138         U139         U140         U141         U142         U143        U144        U145
      U146         U147         U148         U149         U150         U151         U152         U153         U154         U155        U156        U157
      U158         U159         U160         U161         U162         U163         U164         U165         U166         U167        U168        U169
      U170         U171         U172         U173         U174         U176         U177         U178         U179         U180        U181        U182
      U183         U184         U185         U186         U187         U188         U189         U190         U191         U192        U193        U194
      U196         U197         U200         U201         U202         U203         U204         U205         U206         U207        U208        U209
      U210         U211         U213         U214         U215         U216         U217         U218         U219         U220        U221        U222
      U223         U225         U226         U227         U228         U234         U235         U236         U237         U238        U239        U240
      U243         U244         U246         U247         U248         U249         U271         U278         U279         U280        U328        U353
      U359         U364         U367         U372         U373         U387         U389         U394         U395         U404        U409        U410
      U411   ...........  ...........  ...........  ...........  ...........  ...........  ...........  ...........  ...........  ..........  ..........
--------------------------------------------------------------------------------------------------------------------------------------------------------

  Table 2--Maximum Concentrations of Chemical Contaminants That are Hazardous at Less Than One Part per Billion
----------------------------------------------------------------------------------------------------------------
                                                                       Maximum allowable initial   Vickery limit
          Chemical constituent            Health based limit  (mg/L)     concentration  (mg/L)          (%)
----------------------------------------------------------------------------------------------------------------
Acetyl chloride.........................  2.00E-04..................  2.00E+05..................              20
Acrylamide (2-Propenamide)..............  8.00E-06..................  8.00E+03..................            0.80
Acrylonitrile (2-Propenenitrile or Vinyl  6.00E-05..................  6.00E+04..................            6.00
 Cyanide).
Aldrin..................................  2.00E-07..................  2.00E+02..................            0.02
Allyl Chloride ( 3-chloroprop(yl)ene)...  3.00E-05..................  3.00E+04..................            3.00
Bendiocarb (2,2-Dimethyl-1,3-benzodioxol  3.00E-04..................  3.00E+05..................              30
 methylcarbamate).
Benzal chloride.........................  2.00E-05..................  2.00E+04..................             2.0
Benz[a]anthracene (1,2-Benzanthracene)..  1.30E-04..................  1.30E+05..................              13
Benzidine...............................  2.00E-07..................  2.00E+02..................            0.02
Benzo[b]fluoranthene....................  1.80E-04..................  1.80E+05..................              18
Benzo[k]fluoranthene....................  1.70E-04..................  1.70E+05..................              17
Benzo[g,h,I]-perylene...................  7.60E-04..................  7.60E+05..................              76
Benzo[a]pyrene..........................  2.00E-04..................  2.00E+05..................              20
Benzotrichloride........................  3.00E-06..................  3.00E+03..................            0.30
Benzyl chloride ((Chloromethyl)benzene).  2.00E-04..................  2.00E+05..................              20
alpha BHC (see Lindane) alpha-            6.00E-06..................  6.00E+03..................            0.60
 hexachlorocyclohexane.
beta BHC (see Lindane) beta-              2.00E-05..................  2.00E+04..................               2
 hexachlorocyclohexane.
delta BHC (see Lindane) delta-            2.00E-04..................  2.00E+05..................              20
 hexachlorocyclohexane.
Bromoacetone (1-Bromo-2-propanone)......  3.00E-05..................  3.00E+04..................               3
Bromodichloromethane (Trihalomethane)...  6.00E-04..................  6.00E+05..................              60
Brucine (2,3-Dimethoxystrychnidin-10-     3.00E-04..................  3.00E+05..................              30
 one).
Carbendazim (1H-benzimidazol-2-yl         4.00E-04..................  4.00E+05..................              40
 carbamic acid methyl ester).
Carbon oxyfluoride......................  5.00E-04..................  5.00E+05..................              50
Chlorinated fluorocarbons, not otherwise  5.00E-04..................  5.00E+05..................              50
 specified.
Chloroacetaldehyde......................  5.90E-04..................  5.90E+05..................              59
Chlorodibromomethane....................  4.00E-04..................  4.00E+05..................              40
Chloroethers............................  3.00E-05..................  3.00E+04..................               3
2-Chloroethyl vinyl ether...............  3.00E-05..................  3.00E+04..................               3
Chloromethyl methyl ether...............  3.00E-05..................  3.00E+04..................               3
Chloroprene.............................  3.00E-05..................  3.00E+04..................               3
m-Cumenyl methylcarbamate...............  3.00E-04..................  3.00E+05..................              30
Cyclohexane.............................  9.00E-05..................  9.00E+04..................               9
2,4-Dichlorophenoxyacetic acid (2,4-D),   2.00E-04..................  2.00E+05..................              20
 salts, esters.
p,p'-Dichlorodipheyldichloroethane (p,p'- 1.00E-04..................  1.00E+05..................              10
 DDD).
p,p'-Dichlorodipheyldichloroethylene      1.00E-04..................  1.00E+05..................              10
 (p,p'-DDE).
p,p'-Dichlorodiphehylotrichloroethane     1.00E-04..................  1.00E+05..................              10
 (p,p'-DDT).
Dibenz[a,h]anthracene...................  3.00E-04..................  3.00E+05..................              30
Dibromochloropropane....................  2.00E-04..................  2.00E+05..................              20
2,3-Dibromo-1-propanol phosphate(3:1)...  3.00E-04..................  3.00E+05..................              30
Dichlorobenzene.........................  2.00E-04..................  2.00E+05..................              20
3,3'-Dichlorobenzidine..................  8.00E-05..................  8.00E+04..................               8
sym-Dichloroethyl ether.................  3.00E-05..................  3.00E+04..................               3
sym-Dichloromethyl ether................  1.60E-07..................  1.60E+02..................           0.016
Dichloropropane.........................  6.00E-05..................  6.00E+04..................               6
Dichloropropanol........................  6.00E-05..................  6.00E+04..................               6
Dichloropropene.........................  3.00E-05..................  3.00E+04..................               3
cis-1,3-Dichloropropene.................  3.00E-05..................  3.00E+04..................               3
trans-1,3-Dichloropropene...............  3.00E-05..................  3.00E+04..................               3
Dieldrin................................  2.00E-06..................  2.00E+03..................             0.2
Diethylene glycol, dicarbamate..........  3.00E-04..................  3.00E+05..................              30
O,O-Diethyl O-pyrazinyl phosphorothioate  4.00E-04..................  4.00E+05..................              40
Dimetilan...............................  3.00E-04..................  3.00E+05..................              30
2,6-Dinitrotoluene......................  3.10E-04..................  3.10E+05..................              31
Di-n-octyl phthalate....................  4.90E-04..................  4.90E+05..................              49
Di-n-propylnitrosamine..................  5.00E-06..................  5.00E+03..................             0.5
1,2-Diphenylhydrazine...................  5.00E-05..................  5.00E+04..................               5
Dithiocarbamates (total)................  9.00E-04..................  9.00E+05..................              90
Ethylene dibromide......................  5.00E-05..................  5.00E+04..................               5
Ethylidene chloride.....................  7.00E-04..................  7.00E+05..................              70
Famphur.................................  3.00E-04..................  3.00E+05..................              30
Fluoroacetic acid, sodium salt..........  7.00E-04..................  7.00E+05..................              70
Formetanate hydrochloride...............  3.00E-04..................  3.00E+05..................              30
Formparanate............................  3.00E-04..................  3.00E+05..................              30
Heptachlor (and its epoxide)............  2.00E-04..................  2.00E+05..................              20
1,2,3,4,6,7,8-Heptachlorodibenzofuran...  2.50E-05..................  2.50E+04..................             2.5
1,2,3,4,7,8,9-Heptachlorodibenzofuran...  2.50E-05..................  2.50E+04..................             2.5
1,2,3,4,6,7,8-Heptachlorodibenzo-p-       2.50E-05..................  2.50E+04..................             2.5
 dioxin.
Hexachlorobutadiene.....................  5.00E-04..................  5.00E+05..................              50
Hexachlorodibenzo-p-dioxins.............  2.50E-05..................  2.50E+04..................             2.5

Hexaethyl tetraphosphate................  4.00E-04..................  4.00E+05..................              40
Hydrazine...............................  1.00E-05..................  1.00E+04..................               1
Indeno[1,2,3-cd] pyrene.................  4.30E-04..................  4.30E+05..................              43
Isolan..................................  3.00E-04..................  3.00E+05..................              30
Lindane (1,2,3,4,5,6-hexa-                2.00E-04..................  2.00E+05..................              20
 chlorocyclohexane, gamma isomer).
Manganese dimethyldithiocarbamate.......  9.00E-04..................  9.00E+05..................              90
Mercury fulminate.......................  1.00E-04..................  1.00E+05..................              10
Methiocarb..............................  5.00E-04..................  5.00E+05..................              50
Methyl chlorocarbonate..................  5.90E-04..................  5.90E+05..................              59
Metolcarb...............................  3.00E-04..................  3.00E+05..................              30
N-methyl-N'-nitro-N-nitroso-guanidine     1.50E-04..................  1.50E+05..................              15
 (MNNG).
Naphthalene.............................  6.00E-04..................  6.00E+05..................              60
p-Nitrophenol...........................  1.30E-04..................  1.30E+05..................              13
N-Nitrosodiethanolamine.................  1.00E-05..................  1.00E+04..................               1
N-Nitrosodiethylamine...................  2.00E-07..................  2.00E+02..................            0.02
N-Nitrosodimethylamine..................  7.00E-07..................  7.00E+02..................            0.07
N-Nitrosodi-n-butylamine................  6.00E-06..................  6.00E+03..................             0.6
N-Nitrosomethylethylamine...............  2.00E-06..................  2.00E+03..................             0.2
N-Nitrosomethylvinylamine...............  1.50E-04..................  1.50E+05..................              15
N-Nitroso-N-methylurea..................  1.50E-04..................  1.50E+05..................              15
N-Nitroso-N-methlurethane...............  1.50E-04..................  1.50E+05..................              15
N-Nitrosopyrrolidine....................  2.00E-05..................  2.00E+04..................               2
1,2,3,4,6,7,8,9-Octachlorodibenzofuran..  5.00E-05..................  5.00E+04..................               5
1,2,3,4,6,7,8,9-Octachlorodibenzo-p-      5.00E-05..................  5.00E+04..................               5
 dioxin.
Parathion...............................  6.00E-04..................  6.00E+05..................              60
Pebulate................................  8.00E-04..................  8.00E+05..................              80
Pentachlorodibenzofurans, total.........  2.50E-05..................  2.50E+04..................             2.5
Pentachlorodibenzo-p-dioxin, total......  2.50E-05..................  2.50E+04..................             2.5
Pentachlorophenols and their              7.60E-05..................  7.60E+04..................             7.6
 chlorophenoxy derivative acids, esters
 amines and salts.
1,3-Pentadiene..........................  3.00E-05..................  3.00E+04..................               3
Phorate.................................  3.00E-04..................  3.00E+05..................              30
Phosgene................................  2.00E-04..................  2.00E+05..................              20
Phosphorithioic and phosphordithioic      3.00E-04..................  3.00E+05..................              30
 acid esters.
Physostigmine...........................  3.00E-04..................  3.00E+05..................              30
Physostigmine salicylate................  3.00E-04..................  3.00E+05..................              30
Polychlorinated Biphenyls...............  5.00E-04..................  5.00E+05..................              50
Prosulfocarb............................  6.00E-04..................  6.00E+05..................              60
Reserpine...............................  3.00E-04..................  3.00E+05..................              30
Streptozotocin..........................  1.50E-04..................  1.50E+05..................              15
Sulfur phosphide........................  3.00E-04..................  3.00E+05..................              30
Tars....................................  3.00E-04..................  3.00E+05..................              30
Tetrachlorodibenzofurans................  1.00E-05..................  1.00E+04..................               1
Tetrachlorodibenzo-p-dioxins............  3.00E-08..................  3.00E+01..................           0.003
1,1,2,2-Tetrachloroethane...............  2.00E-04..................  2.00E+05..................              20
Tetraethyl lead.........................  3.50E-06..................  3.50E+03..................            0.35
Thiodicarb..............................  3.00E-04..................  3.00E+05..................              30
Thiofanox...............................  3.00E-04..................  3.00E+05..................              30
Tirpate.................................  3.00E-04..................  3.00E+05..................              30
Trichlorobenzene........................  1.20E-04..................  1.20E+05..................              12
Trichloromethanethiol...................  2.00E-04..................  2.00E+05..................              20
Triethylamine...........................  5.00E-04..................  5.00E+05..................              50
----------------------------------------------------------------------------------------------------------------

    Electronic Access. You may access this Federal Register document
electronically from the Government Printing Office under the ``Federal
Register'' listings at FDSys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

    Dated: March 10, 2015.
Kevin M. Pierard,
Acting Director, Water Division.
[FR Doc. 2015-06970 Filed 3-26-15; 8:45 am]
 BILLING CODE 6560-50-P