OVERVIEW
Eligibility:  This award is open to utilities, state agencies, regional energy efficiency nonprofit organizations, associations, and other organizations that sponsor sustained energy efficiency and environmental programs for their customers and constituents.
Please note that for-profit energy service and product providers are not eligible for this award category and are redirected to the application for Service and Product Providers under the Partner of the Year category.
Description of Award:  This award recognizes organizations that have demonstrated leadership and best practices in implementing energy efficiency programs and/or program portfolios that incorporate ENERGY STAR as a key strategy. Recipients of awards in this category distinguish themselves through their use of the ENERGY STAR brand, tools, strategies and resources to cost-effectively deliver near-term program results while also effectively overcoming market barriers to efficiency such that more efficient products, homes, buildings, and facilities become the norm. Organizations applying for this award are strongly encouraged to address how they are transforming the market for energy efficiency in the long term.
The goal of this award is to recognize comprehensive, high-performing energy efficiency programs and/or portfolios that have directly leveraged ENERGY STAR to achieve significant impact in the marketplace, advancing energy efficiency and related greenhouse gas emission reduction objectives.
NOTE:
       For organizations that have been recognized with ENERGY STAR Awards in past years, the award evaluation committee will assess applicants not only on their ability to sustain successful strategies from prior years, but on the new strategies and activities initiated in 2020. Applicants are encouraged to respond accordingly in their narratives.

       Flexibility is granted for the time horizon for reporting accomplishments, provided that the majority of accomplishments occur in calendar year 2020.

PROGRAM CATEGORIES
Applicants may apply in one or more Program Category. Applicants are strongly encouraged to submit one comprehensive application, irrespective of internal organization/program management structure, to most effectively convey their organization's strategic use of the ENERGY STAR platform and partnership in advancing energy efficiency.
Category 1. Residential New Construction: Programs that promote the construction of ENERGY STAR certified homes and apartments by implementing program elements such as:

             Employing program design approaches that are based on the local housing market and unique program goals and reflect the most important regional factors for program success;
             Implementing marketing strategies that increase awareness of ENERGY STAR certified homes and apartments;
             Providing training to help builders and Raters become successful program participants;
             Utilizing strategic incentive structures that help to offset upgrade or verification costs;
             Implementing outreach approaches that create strong relationships with stakeholders, communicate procedures and expectations, and share important program information;
             Developing quality assurance protocols to ensure the integrity of the ENERGY STAR label and the applicant's program; and
             Using measurement and evaluation processes to assess progress and attainment of goals and facilitate continuous improvement in the implementation of the program.

Category 2. Home Performance with ENERGY STAR: Program Sponsors and Partners that promote or deliver Home Performance with ENERGY STAR by implementing at least one of the following program elements:

             Develops and implements marketing and outreach strategies that incorporate and leverage the Home Performance with ENERGY STAR brand with demonstrated project-generating results;
             Enhances program impacts through process improvements that improve the efficiency and delivery of projects, increase contractor participation in the Sponsor's program, and increase cost-effectiveness of the home performance portfolio;
             Utilizes program delivery strategies that achieve verifiable energy savings, improved safety and comfort, and enhance the durability and affordability of homes;
             Develops and implements innovative strategies to drive demand (e.g., lead generation, marketing campaigns, sales and marketing training, cooperative marketing) that result in high conversion rates for Home Performance with ENERGY STAR projects by participating contractors;
             Using evaluation, measurement and verification (EM&V) processes to assess progress and attainment of goals and facilitate continuous improvement in the implementation of the program, including systems for collecting and reporting project-level data on installed measures and estimating and analyzing energy savings from home performance projects.
             Leverages funding, in-kind and other support from diverse market actors (e.g., electric and gas utilities, weatherization assistance and low-moderate income housing service providers, manufacturers, retailers, distributors, etc.);
             Promotes workforce development opportunities through mentoring, training, and recognition; supports and develops rigorous quality assurance and quality control processes and procedures;
             Effectively delivers HPwES programs and services to a diverse range of housing types, household demographics (e.g., low-moderate income, multifamily, rental, owner-occupied)
             Demonstrates leadership in the national, regional, state or local arenas to foster the advancement of the home performance industry.

Category 3. Certified Residential Products: Programs that are designed to overcome market barriers to widespread adoption of ENERGY STAR residential products and/or related best practices, such as permanent removal of older, inefficient appliances along with proper recycling, et cetera.

Category 4. Certified Commercial Products: Programs that are designed to overcome market barriers to widespread adoption of ENERGY STAR certified commercial products and/or related best practices, such as power management of data center servers, et cetera.

Category 5. Commercial and Industrial Whole Building Performance: Programs that deliver improved whole - building energy performance in existing commercial buildings; target and track performance for new construction; and/or achieve facility-wide improvement in industrial plants, by using ENERGY STAR tools and resources to overcome market barriers. The evaluation committee will look for several specific actions, including but not limited to:
       Implementing Building Performance with ENERGY STAR;
       Increasing the use of ENERGY STAR Portfolio Manager by making whole-building energy data more readily available to customers, in particular through use of the Portfolio Manager web services;
       Promoting the Treasure Hunt campaign, the Challenge for Industry, and earning the ENERGY STAR for buildings; and
       Setting energy design goals using Target Finder and achieving Designed to Earn the ENERGY STAR for new buildings.

APPLICATION REQUIREMENTS
ALL application materials must be submitted electronically through your My ENERGY STAR Account (MESA) (www.energystar.gov/mesa) using the electronic application forms provided. These materials must include:
 PART 1: General Instructions & Executive Summary which includes a brief description of your organization and six bullet points showcasing your organization's main ENERGY STAR achievements during 2020 in the corresponding fields. (required)
 PART 2: Award Accomplishments Document consisting of your organization's responses to sections above and below within this application. (required)
 PART 3: Supporting Materials Applicants are strongly encouraged to submit electronic samples of program materials and evaluation reports to support the narrative description. Importantly, applicants should provide examples of the use of the ENERGY STAR name and mark in customer and trade ally outreach that is not easily accessible to the public online. In addition, EPA will validate incorporation of ENERGY STAR label by reviewing use of the ENERGY STAR logo and educational content of the applicant's website, if they are otherwise deemed competitive applicants. (minimum of 1 required)
 PART 4:  Organization's High-Resolution Logo (required)

Accomplishments -- Applicants should provide a detailed description of 2020 accomplishments demonstrating how you have met the required criteria below.

      Incremental Annual Energy Savings and Other Numerical Accomplishments -- When highlighting accomplishments, please be sure to include incremental annual energy savings and specify whether they are net or gross savings.
 "Incremental Annual Energy Savings: The difference between the amount of energy savings acquired or planned to be acquired as a result of energy efficiency activities in one year, and the amount of energy savings acquired or planned to be acquired as a result of the energy efficiency activities in the prior year.
 Net Savings: The change in energy consumption and/or demand that is attributable to an energy efficiency program. This change in energy use and/or demand may include, implicitly or explicitly, consideration of factors such as free ridership, participant and nonparticipant spillover, and induced market effects. These factors may be considered in how a baseline is defined (e.g., common practice) and/or in adjustments to gross savings values.
 Gross Savings: The change in energy consumption and/or demand that results directly from program-related actions taken by participants in an energy efficiency program, regardless of why they participated."

      Applicants, particularly candidates for Sustained Excellence, may also wish to include cumulative energy savings defined as "the summation of energy savings (e.g., megawatt-hours, therms) from multiple projects or programs over a specified number of years, taking into account the time of measure installation in the first year, annual energy savings for subsequent years, and the average life of the installed measures."  When providing cumulative accomplishments please be sure to include the beginning and end times.
      Specification of Time Horizon -- While incremental annual energy savings and other accomplishments need largely to have occurred in calendar year 2020, the application deadline as well as applicant program/fiscal year often make quantification and reporting difficult. As such, the applicant may provide estimated incremental annual savings and other data through the end of the calendar year and specify that it is estimated or provide more precise data and include the time horizon (e.g., between October 2019 and October 2020). Please be consistent throughout the application, i.e., use the same method/time horizon for all accomplishments.
      Context Matters, Tell Your Story -- Don't assume that reviewers know your service territory or the local conditions that affect program performance.  Putting data in context can help tell your story. For example, raw data on the number of ENERGY STAR certified homes your program facilitated can be strengthened by estimates of the percent of home starts they represent in your territory. Similarly, if you achieved the same or greater volume of equipment sales as the prior year, but the energy savings claims are lower due to a change in the baseline of comparison, that is important context.

PART 2:
Award Accomplishments Document
(use the following information to create a Word or PDF file)

1. Narrative (no more than three pages per program category) (required):
It is recommended that each item, as defined below, be addressed explicitly in the application. Newer programs (those that have been in the market at least a year) are encouraged to apply, and scores will be weighted accordingly (i.e., more heavily based on program design and anticipated market effects than energy savings.)
Candidates must include the following in their submissions:
      a. Category: Please identify all target Program Categories for your program(s)/initiative(s). If you address multiple Program Categories, please ensure that each category clearly addresses the following criteria.
      NOTE:  Sponsors that provide quantitative results of campaigns and initiatives will be considered more competitively than those who do not provide any quantitative information.
      b. Program Design: Describe your program design in terms of goals, market barriers addressed, strategy for overcoming market barriers, key activities, and discuss why this approach is the best practice for your market. Applicants with new programs/program designs should focus heavily on this section, clearly explaining their program logic and why it is likely to lead to sustained market change.
      c. Incorporation of ENERGY STAR: Describe how you have incorporated the ENERGY STAR platform as a central pillar of your program including
 Use of ENERGY STAR specifications and other marketing designations (e.g.,  ENERGY STAR Most Efficient)
 Branding with ENERGY STAR -- explicit use of the ENERGY STAR logo and the words "ENERGY STAR certified" in consumer education and outreach initiatives (website, point of purchase signing, advertising, web, social media and events, etc.)
 Leveraging of ENERGY STAR messaging, tools, and strategies including program design best practices (e.g., ESRPP), online tools (e.g. Ways to Save Tips web services) and campaign initiatives (e.g., Flip your Fridge, Rule your Attic, Battle of the Buildings). Information about our Marketing Materials can be found at here.

      d. Market Effects: Please provide qualitative and numerical data to support your case that the market has changed or will likely change in a sustained way as a result of your initiative (e.g., improved energy performance of buildings and homes in your region, changes in ENERGY STAR awareness or availability/sale of ENERGY STAR certified products, homes, or services). To the extent possible, also indicate the size and importance of the market that has been (or will be) affected within the context of your service territory, state, or region.
         Examples of market effects include, but are not limited to, the following:
             Energy savings, peak demand reductions, and air pollution reductions achieved through residential, commercial, and/or industrial sector programs that explicitly leverage ENERGY STAR
             Increase in salesperson/contractor knowledge; change in business practices
             Increase in participation by key suppliers, including energy service companies, software vendors, financial institutions, trainers, manufacturers, distributors, equipment suppliers, architects, engineers, contractors, or retailers
             Increase in service availability
             Increase in third-party advertising by market participants
             Increase in consumer awareness; change in consumer attitude
             Breadth and reach of publicity activities
             Increase in participation in the ENERGY STAR Program
             Decrease in costs to administer a program through better efficiency and/or streamlining operations
             Estimated year-to-date energy savings

      e. Program Category-Specific Market Effects: Applicants must provide the following information specific to the Program Category(ies) covered in your application:
             For Residential New Construction:
 Promoting Retention and Growth in ENERGY STAR Certified Homes
                  Describe and quantify efforts to retain and increase ENERGY STAR participation by builders and Raters. Provide the following numbers for both 2020 and 2019, and the percent change in these numbers between years:
 Total number of homes built in your service territory
 Number of incentivized ENERGY STAR certified homes in your service territory
 Number of incentivized non-ENERGY STAR certified homes in your service territory
 Number of builders participating in your program
 Number of Home Energy Raters participating in your program
 The program implementation budget directed to residential energy efficient new construction programs overall and to ENERGY STAR certified homes specifically, both in dollar terms and as a percentage of your overall implementation budget

 Educating Homebuyers About ENERGY STAR Certified Homes
                  Innovative program marketing efforts in 2020 that utilized the ENERGY STAR brand to increase homebuyer awareness of, and demand for, ENERGY STAR certified homes. Quantify your examples (e.g., number of media impressions, number of website visits, number of brochures distributed). Examples may include:
 Developing ENERGY STAR-related marketing collateral (printed materials, online content, social media, etc.)
 Assisting builders and Raters with marketing ENERGY STAR certified homes (e.g., training sales agents and/or real estate professionals)

 Assisting Builders and Home Energy Raters in Meeting Program Requirements
                  Describe your program's efforts in 2020 to directly assist builders and Raters in meeting ENERGY STAR program requirements in 2020. Quantify your examples (e.g., number of HVAC contractors trained on ENERGY STAR program requirements, number of technical trainings provided to builders, etc.). Examples may include:
 Efforts to engage local HVAC contractors about quality installation and ENERGY STAR program requirements
 Providing technical support and/or training to builders and/or Raters

 Demonstrating Leadership with ENERGY STAR
                  Describe your program's efforts in 2020 to be a leader in the ENERGY STAR Certified Homes program. Examples may include:
 Implementing innovative program solutions to overcome market and/or regulatory barriers
 Promoting the value of the ENERGY STAR Certified Homes program to other organizations and delivering ENERGY STAR information at industry conferences and meetings

         NOTE: Sponsors implementing tiered incentive programs where the ENERGY STAR Certified Homes program is not the entry-level tier should only report results from those that participated at the ENERGY STAR level.
             For Home Performance with ENERGY STAR:
 Marketing
 Describe innovative marketing that specifically highlights and leverages the Home Performance with ENERGY STAR platform including examples and metrics
 Program delivery approaches
 Highlight innovative solutions to grow Home Performance with ENERGY STAR, such as motivating homeowners to take action; integration of educational tools and documentation to educate homeowners and capture the value of home performance improvements; developing a low-to-moderate income program; partnering with trade allies, workforce development organizations and vocational education institutions to foster diversity and grow the contractor workforce, and/or promote economic development opportunities through the energy efficiency industry
 Process improvements that improve the efficiency of program delivery while addressing barriers to project delivery (e.g., field inspections and/or in-person contact with homeowners);
 Completed projects by participating contractors
 Lead generation and marketing strategies, including conversion rate metrics
 Provide examples of substantiated measurement and verification of performance of improved homes (from third-party program impact evaluation studies using commonly accepted EM&V methodologies, pre- and post-project billing analyses or metered consumption analyses)
 Workforce infrastructure development
 Demonstrate support for development of local contractor networking and advocacy
 Activities to recruit and train participating contractors as demonstrated by production rates, retention, number of Home Performance with ENERGY STAR Contractor of the Year Award (previously known as the Housing Innovation Award) winners, Century Club Contractors, etc.
 Detail successful recruitment and growth of the home performance workforce through partnerships with individual trades and the home improvement industry, and others
 Leadership
 Provide evidence for success in coordinating with other organizations (i.e., utilities, manufacturers, state/local governments, retail, finance organizations, non-profits, and trade associations) to grow overall market acceptance of home performance
 Develop or test innovative, scalable approaches to delivering Home Performance with ENERGY STAR that are replicable for sponsors across the country
 Demonstrate innovation in one or more areas of Home Performance with ENERGY STAR program administration and delivery, such as cost-effectiveness, customer engagement, service delivery to low-moderate income households, integration of advanced technologies and/or installation practices, and adoption of certification systems that can be integrated with local, regional or national real estate and appraisal systems.

 For ENERGY STAR Certified Residential Products:
                Increase in sales or market share of ENERGY STAR certified products -- and any tiered subsets, vis a vis non-certified model

                Increase in shelf space devoted to ENERGY STAR certified products and/or increase in dealer stocking for certified products
                As applicable, number of older/inefficient units permanently removed from service (e.g., properly recycled)

      For ENERGY STAR Certified Commercial Products:
                Increase in sales or market share of ENERGY STAR certified products -- and any tiered subsets, vis a vis non-certified models
                Increase in dealer/supplier stocking and/or marketing of certified products
                As applicable, number of older/inefficient units consolidated and/or removed from service
                As applicable, increase in use of power management features

 For Commercial and Industrial Whole Building Performance:
                Increase in use of EPA's ENERGY STAR measurement and tracking tool, ENERGY STAR Portfolio Manager, and the Target Finder, for new construction
                Number of customers obtaining the energy data they need to benchmark in Portfolio Manager through a utility service to enhance data access
                Number of customers participating in the Treasure Hunt campaign or Challenge for Industry
                Increase in buildings earning the ENERGY STAR label
                Number of customer buildings benchmarked and evaluated through a Building Performance with ENERGY STAR program

f. Data Sources: Please reference data sources used to support your market effect claims. As relevant, briefly (1-2 sentences) describe the data collection method, sample frame, and respondent population (e.g., telephone survey, large-share sample of heating and cooling contractors).
                 Prepare/Gather Remaining Documents for Upload
      PART 3: Supporting Materials at least one required, as described in the Application Instructions above)
      PART 4: Organization High-Resolution Logo (required)

ENERGY STAR[(R)]  is the government-backed symbol for energy efficiency, providing simple, credible, and unbiased information that consumers and businesses rely on to make well-informed decisions.

ENERGY STAR[(R)]  is the government-backed symbol for energy efficiency, providing simple, credible, and unbiased information that consumers and businesses rely on to make well-informed decisions.


[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Notices]
[Pages 31998-32000]
[FR Doc No: 2011-13624]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64552; File No. SR-NASDAQ-2011-070]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Modify the Functionality of the Post-Only Order

May 26, 2011.
    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 May 19, 2011, The NASDAQ Stock Market LLC (the ``Exchange'' or
``NASDAQ'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing this proposed rule change to modify the
functionality of its Post-Only Order. NASDAQ proposes to implement the
rule change thirty days after the date of filing or as soon thereafter
as practicable. The text of the proposed rule change is available

at http://nasdaq.cchwallstreet.com/, at NASDAQ's principal office, and
at the Commission's Public Reference Room.

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

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

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

1. Purpose
    NASDAQ proposes to modify the functionality associated with its
existing Post-Only Order. Currently, if a Post-Only Order would lock an
order on the NASDAQ System at the time of entry, the order is re-priced
and displayed by the System to one minimum price increment (i.e., $0.01
or $0.0001) below the current low offer (for bids) or above the current
best bid (for offers). Thus, if the best bid and best offer on the
NASDAQ book were $10.00 x $10.05, and a market participant entered a
Post-Only Order to buy at $10.05, the order would be re-priced and
displayed at $10.04. This aspect of the functionality of the order is
not changing. In addition, if a Post-Only Order would cross an order on
the System, the order will be repriced as described above unless the
value of price improvement associated with executing against a resting
order equals or exceeds the sum of fees charged for such execution and
the value of any rebate that would be provided if the order posted to
the book and subsequently provided liquidity, in which case the order
will execute. As provided by Rule 4757, price improvement accrues to
the party entering the order. Thus, if a sell order is on the book at
$10 and a Post-Only Order to buy at $10.01 is entered, the order will
execute at $10. This aspect of the order's functionality is also not
changing.\3\
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    \3\ The functionality was described in the original filing to
establish the Post-Only Order but was not fully reflected in the
text of Rule 4751. See Securities Exchange Act Release No. 59392
(February 11, 2009), 74 FR 7943 (February 20, 2009) (SR-NASDAQ-2009-
006). Accordingly, the rule is being amended to provide a complete
description of the order's current behavior when crossing an
existing order on the System.
---------------------------------------------------------------------------

    At present, however, the order is repriced in a similar manner if
the order would lock or cross a protected quotation of another market
center. Thus, if the national best offer of $10.05 is being displayed
on another market center but not on NASDAQ, at present an order to buy
at $10.05 would be repriced and displayed at $10.04. Under the changed
functionality that NASDAQ is proposing, if the order locks or crosses
the other market center, the order will be accepted at the locking
price (i.e., the current low offer (for bids) or to the current best
bid (for offers)) and displayed by the System to one minimum price
increment (i.e., $0.01 or $0.0001) below the current low offer (for
bids) or above the current best bid (for offers). Thus, if the national
best bid and offer, as displayed on another market center, was $10 x
$10.05, an order to buy at $10.05 or higher would be accepted at the
locking price of $10.05, but would be displayed at $10.04.
Subsequently, an incoming order to sell at $10.05 or lower would be
matched against the Post-Only buy order. In this case, the incoming
sell order would receive price improvement.
    As a result of the change, the order will resemble more closely
NASDAQ's Price to Comply order, which uses a similar logic of retaining
a locking price but displaying at a non-locking price. The modified
Post-Only Order will serve to allow the market participant entering the
order to post its order at its desired price, unless the price would
lock or cross the NASDAQ book, in which case the order will execute or
be repriced, as is currently the case, to avoid the internal lock/
cross. The revised order type is designed to provide market
participants with better control over their execution costs and to
provide them with a means to offer price improvement opportunities to
other market participants.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\4\ in general, and with Section
6(b)(5) of the Act,\5\ in particular, in that the proposal is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in regulating, clearing, settling,
processing information with respect to, and facilitating transactions
in securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest. NASDAQ also believes that
the modified order is consistent with Rule 610(d) under Regulation
NMS.\6\ Rule 610(d) requires exchanges to establish, maintain, and
enforce rules that require members reasonably to avoid ``[d]isplaying
quotations that lock or cross any protected quotation in an NMS
stock.'' Such rules must be ``reasonably designed to assure the
reconciliation of locked or crossed quotations in an NMS stock,'' and
must ``prohibit * * * members from engaging in a pattern or practice of
displaying quotations that lock or cross any quotation in an NMS
stock.'' Rule 600 under Regulation NMS \7\ defines a ``quotation'' as a
``bid or offer,'' and in turn defines ``bid or offer'' to mean ``the
bid price or the offer price communicated by a member * * * to any
broker or dealer, or to any customer, at which it is willing to buy or
sell one or more round lots of an NMS security * * *.'' Thus, the
hidden price of the Post-Only Order is not a quotation under Regulation
NMS, and is therefore covered neither by the provisions of Rule 610
pertaining to displayed quotations nor by the provision requiring rules
to assure reconciliation of locked or crossed quotations. In this
respect, the order is similar to NASDAQ's existing Price to Comply
order, which uses a hidden locking price and a displayed non-locking
price to ensure compliance with this rule. It is also similar to the
Post Only Order of the BATS Exchange and the BATS-Y Exchange, as
described in BATS Exchange Rule 11.9(c)(4) and (6) and BATS-Y Exchange
Rule 11.9(c)(4) and (6), and the Post Only Order of the EDGA Exchange
and EDGX Exchange, as described in EDGA Exchange Rule 11.5(c)(4) and
(5) and EDGX Exchange Rule 11.5(c)(4) and (5).
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    \4\ 15 U.S.C. 78f.
    \5\ 15 U.S.C. 78f(b)(5).
    \6\ 17 CFR 242.610(d).
    \7\ 17 CFR 242.600.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. Rather, the change
will promote greater competition by allowing NASDAQ to adopt
functionality already in use at competing national securities
exchanges.

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

    Written comments were neither solicited nor received.

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

    Because the foregoing proposed rule change: (1) Does not
significantly affect the protection of investors or the public
interest; (2) does not impose any significant burden on competition;
and (3) by its terms does not become operative for 30 days after the
date of this filing, or such shorter time as the Commission may
designate if consistent with the protection of investors and the public
interest, the proposed rule change has become effective pursuant to
Section 19(b)(3)(A) of the Act \8\ and Rule 19b-4(f)(6) thereunder.\9\
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to provide the Commission
with written notice of its intent to file the proposed rule change,
along with a brief description and text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has fulfilled this requirement.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2011-070 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2011-070. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of 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; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NASDAQ-2011-070 and should be submitted on or before June 23, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-13624 Filed 6-1-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: April 20, 2006 (Volume 71, Number 76)]
[Notices]
[Page 20422-20424]
[DOCID:fr20ap06-63]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53652; File No. SR-Amex-2005-100]

Self-Regulatory Organizations; American Stock Exchange LLC; Order
Approving Proposed Rule Change and Amendments No. 1 and 2 Thereto and
Notice of Filing and Order Granting Accelerated Approval to Amendment
No. 4 Relating to the Establishment of a New Class of Registered
Options Trader Called a Remote Registered Options Trader

April 13, 2006.

I. Introduction

    On September 30, 2005, the American Stock Exchange LLC (``Amex'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to establish a new class of Registered Options
Trader called a Remote Registered Options Trader (``RROT''). On January
13, 2006, the Amex filed Amendment No. 1 to the proposed rule
change.\3\ On January 26, 2006, the Amex filed Amendment No. 2 to the
proposed rule change.\4\ The proposed rule change, as amended, was
published for comment in the Federal Register on February 10, 2006.\5\
The Commission received no comments in response to the proposed rule
change. The Amex filed Amendment No. 3 to the proposed rule change on
March 29, 2006, but the amendment was subsequently

withdrawn on April 10, 2006. The Amex filed Amendment No. 4 to the
proposed rule change on April 13, 2006.\6\ This order approves the
proposed rule, as amended by Amendments No. 1 and 2; grants accelerated
approval to Amendment No. 4; and solicits comments from interested
persons on Amendment No. 4.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced and superseded the original filing
in its entirety.
    \4\ Amendment No. 2 made clarifying changes to the Purpose
section, as well as changes to the proposed rule text.
    \5\ See Securities Exchange Act Release No. 53220 (February 3,
2006), 71 FR 7083.
    \6\ Amendment No. 4 proposes to clarify general statements in
the Purpose section of Amendment No. 1, as well as changes to the
proposed rule text that, among other things, incorporate changes
recently approved by the Commission in SR-Amex 2005-075, which
established a new class of Amex market maker, Supplemental
Registered Options Traders (``SROTs''). See Securities Exchange Act
Release No. 53635 (April 12, 2006).
---------------------------------------------------------------------------

II. Description

    Amex proposes to adopt new Rule 994-ANTE to create a new category
of registered options trader called an RROT. Amex also proposes to
adopt amendments to existing Amex Rules 900-ANTE, 918-ANTE, 935-ANTE,
936-ANTE, 950-ANTE, 951-ANTE, 958-ANTE and 958A-ANTE to incorporate
this new category of trader into relevant existing rules.
    The Amex proposes to define an RROT as a ROT that is a member
organization so designated by the Exchange and would be granted remote
quoting rights to enter bids and offers electronically from locations
other than the trading crowd, both on and off the Exchange's trading
floor, where the applicable options class is traded. A member
organization requesting approval to act as an RROT would be required to
file a written application with the Exchange, pursuant to Exchange
Rules, indicating that it is qualified as a ROT. The proposed rule also
includes provisions that govern RROT applicant withdrawal, as well as
suspension and/or termination of RROT assignments and review of such
actions. Furthermore, RROTs may make adjustments to the option classes
in which they will remotely quote in a form and manner prescribed by
the Exchange.

Quoting Rights

    RROTs would earn remote quoting rights based on the percentage of
Amex floor volume they execute.\7\ Specialists would earn remote
quoting rights in two ways: (1) Based on the percentage of Amex floor
volume they execute; \8\ and (2) based on their percentage of the
average market share of the industry volume in the option classes in
which they specialize per quarter. The pool of quoting rights awarded
by volume would be established quarterly by a Committee designated by
the Board of Governors of the Exchange who would announce, not later
than the first business day of each calendar quarter, the pool of
available quoting rights available to be earned by percentage of Amex
floor volume for the subsequent trading period.
---------------------------------------------------------------------------

    \7\ Volume executed via remote quoting would not count towards
earning remote quoting rights.
    \8\ Volume executed via remote quoting would not count towards
earning remote quoting rights.
---------------------------------------------------------------------------

    The membership would be informed of the amount of quoting rights
earned no later than one week prior to the commencement of the
subsequent trading period. The award of remote quoting rights to
specialists based upon their percentage of the average market share of
the industry volume would depend on their percentage of the average
market share of industry volume in the options classes in which they
quote. The number of remote quoting rights earned \9\ would vary
quarterly, and no fractional remote quoting rights would be issued. The
quoting rights earned by ROTs and specialists are not cumulative and
are subject to change quarterly.\10\ The quoting rights are calculated
based solely on volume and market share earned from the previous
quarter, and expire at the conclusion of each trading period.\11\
Lastly, the remote quoting rights would be transferable between the
members and member organizations, but the parties would be required to
notify the Exchange of the transfer of any rights.
---------------------------------------------------------------------------

    \9\ Each remote quoting right would permit an RROT to remotely
quote one option class.
    \10\ See Amendment No. 4, supra note 6.
    \11\ Id.
---------------------------------------------------------------------------

RROT Obligations

    In exchange for remote quoting rights, RROTs would be required to
fulfill a number of obligations. RROTs would be required to have at
least one active floor member acting as a ROT, subject to certain
limitations.\12\ RROTs would be permitted to quote in up to five (5)
option classes per seat owned or leased without any additional seat
requirements, but would be required to purchase or lease one additional
seat for every forty (40) option classes remotely quoted in excess of
the five option classes. Exchange memberships used to satisfy
membership requirements to remotely quote as an RROT would not be
permitted to be used for any other purpose while being used in an RROT
capacity, including being leased to another member or for trading on
the trading floor.
---------------------------------------------------------------------------

    \12\ See Amendment No. 2, supra note 4.
---------------------------------------------------------------------------

    RROTs would also be required to provide continuous two-sided
quotations in at least 60% of the series of their assigned classes and
may be called upon to submit a single quote or maintain continuous
quotes in one or more series of an option class to which the RROT is
assigned whenever it is in the interest of maintaining a fair and
orderly market.

Limitation on RROT Activities

    RROTs would be subject to the current designation of options areas
that exist for ROTs.\13\ In addition, the proposal would prohibit an
RROT from executing an option transaction on a Paired Security if the
RROT is standing in the Designated Stock Area where the related
security is traded, unless given an exemption pursuant to Amex Rule
175(c).\14\ The Exchange further proposes to amend Amex Rule 958-ANTE
(e) and (f) to include RROTs.\15\ In this regard, no RROT may act as
such in a class of stock options on a stock in which he is registered
in the primary market. An RROT may, however, act as such if the RROT
meets the criteria set forth in Commentary.03(a) to Amex Rule 1000 or
Commentary .02(a) to Amex Rule 1000A, or is approved by the Commission
as eligible for trading arrangements under Amex Rule 958-ANTE(e) and
Amex Rule 175(c)(2). The proposed changes to Amex Rule 958-ANTE (f)
provide that no member, while acting as an RROT, if also registered as
a registered equity trader or registered equity market-maker, would be
required to execute a proprietary Exchange option transaction on a
Paired Security if during the preceding 60 minutes he has been in the
Designated Stock Area where the related security is traded.
---------------------------------------------------------------------------

    \13\ See Securities Exchange Act Release Nos. 39631 (February 9,
1998), 63 FR 8229 (February 18, 1998) and 46362 (August 15, 2002),
67 FR 54243 (August 21, 2002).
    \14\ Id. See also Amendment No. 4, supra note 6.
    \15\ See Amendment No. 4, supra note 6.
---------------------------------------------------------------------------

    The proposed rule would require that RROTs maintain information
barriers and that no RROT be assigned to an options class where the
RROT has a direct or indirect affiliate who is a specialist, ROT,
SROT,\16\ or RROT in such option class. The proposal further requires
RROTs to comply with Amex Rule 193 regarding the misuse of material
non-public information between the affiliate and the specialist member
organization.
---------------------------------------------------------------------------

    \16\ Id. Amendment No. 4 also amends the ``Affiliation
Limitations'' provision of Amex Rule 993-ANTE, which governs SROTs,
to account for the establishment of RROTs.
---------------------------------------------------------------------------

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning Amendment No.

4, including whether Amendment No. 4 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 e-mail to<EMAIL_ADDRESS>Please include

File Number SR-Amex-2005-100 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-9010.
    All submissions should refer to File Number SR-Amex-2005-100. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,

all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Section, Station
Place, 100 F Street, NE., Washington, DC 20549. Copies of such filing
also will be available for inspection and copying at the principal
office of the Amex. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to File Number
SR-Amex-2005-100 and should be submitted on or before May 11, 2006.

IV. Discussion

    After careful review, the Commission finds that the proposed rule
change, as amended, is consistent with the requirements of the Act and
the rules and regulations thereunder applicable to a national
securities exchange.\17\ In particular, the Commission finds that the
proposal, as amended, is consistent with the provisions of section
6(b)(5) of the Act,\18\ which requires, among other things, that a
national securities exchange's rules be designed to promote just and
equitable principles of trade, to remove impediments to and to perfect
the mechanism of a free and open market and a national market system
and, in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \17\ In approving this proposal, the Commission has considered
the proposed rule's impact on efficiency, competition, and capital
formation. 15 U.S.C. 78c(f).
    \18\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Currently, the Exchange permits ROTs to submit quotes only from the
physical trading floor. Under the proposal, RROTs would be permitted to
quote electronically from locations other than the trading crowd where
the applicable options class is traded on the Exchange's physical
trading floor. Providing Registered Options Traders with the
opportunity to quote in additional options classes should increase the
liquidity available in those classes to which the RROTs are assigned.
    Proposed Amex Rule 994(c)-ANTE sets forth the obligations that an
RROT would be required to fulfill. Specifically, an RROT would be
required to generate continuous, two-sided quotations in not less than
60% of the series of their assigned classes. The Commission believes
that these obligations for RROTs are consistent with the Act. In
particular, the Commission believes that RROT's affirmative obligations
are sufficient to justify the benefits they receive as market makers.
    Exchange rules require that information barriers would be in place
to prevent the misuse of material, non-public information with any
affiliates that may conduct a brokerage business in option classes
assigned to an RROT, or that may act as a market maker in any security
underlying options assigned to an RROT. RROTs would be required to also
comply with Amex Rule 193 regarding the misuse of material non-public
information between the affiliate and the specialist organization. In
addition, RROTs would be prohibited from executing options transactions
on a paired security if the RROT is standing in the Designated Stock
area where the related security is traded, unless given an exemption by
Amex Rule 175(c). Further, RROTs would be included in Amex Rule 958 -
ANTE(e) and (f), which would impose limits on an RROT's ability to act
as an RROT in an option on a stock in which the RROT is registered in
the primary market. The Commission believes these provisions should
help to ensure that options and equity trading will be sufficiently
separated such that no time or place advantage is derived from the
RROT's ability to stream quotes in a given option class from a location
other than the post at which that option is traded on the Exchange
floor.
    Furthermore, the Commission finds good cause for approving
Amendment No. 4 to the proposed rule change prior to the thirtieth day
after publication for comment in the Federal Register pursuant to
section 19(b)(2) of the Act.\19\ Amendment No. 4 incorporates changes
recently approved by the Commission, which modified many of the same
rule provisions as proposed in the RROT filing. Additionally, the
changes to the ``Affiliation Limitations'' sections of Amex Rules 993-
ANTE and 994-ANTE should ensure that both SROTs and RROTs maintain
appropriate information barriers and are assigned only to options
classes where the SROT or RROT does not have a direct or indirect
affiliate in such options classes and should help to ensure that equity
trading will be sufficiently separated so that no time or place
advantage is derived from the RROT's ability to stream quotes in a
given option class from a location other than the post at which that
option is traded on the Exchange floor. The Commission does not believe
that Amendment No. 4 materially affects the original proposed rule
change, as amended. Rather, Amendment No. 4 more accurately reflects
the Exchange's current rules. Accordingly, the Commission finds good
cause to accelerate approval of Amendment No. 4, consistent with
sections 6(b)(5) of the Act,\20\ and section 19(b) of the Act.\21\
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78s(b)(2).
    \20\ 15 U.S.C. 78f(b)(5).
    \21\ 15 U.S.C. 78s(b).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\22\ that the proposed rule change (SR-Amex-2005-100), as amended
by Amendments No. 1 and 2, be, and it hereby is, approved, and that
Amendment No. 4 is approved on an accelerated basis.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
 [FR Doc. E6-5918 Filed 4-19-06; 8:45 am]

BILLING CODE 8010-01-P


for using
                                                    alternatives; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Dry Cured Pork Products...  (a) Members of     with a reasonable
                                 the National       expectation that one
                                 Country Ham        or more of the
                                 Association.       following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
                                (b) Members of     with a reasonable
                                 the American       expectation that one
                                 Association of     or more of the
                                 Meat Processors.   following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
                                (c) Nahunta Pork   with a reasonable
                                 Center (North      expectation that one
                                 Carolina).         or more of the
                                                    following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
------------------------------------------------------------------------

[FR Doc. 06-1019 Filed 2-3-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Notices]
[Pages 3043-3044]
[FR Doc No: 2017-00219]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79735; File No. SR-ISEGemini-2016-14]

Self-Regulatory Organizations; ISE Gemini, LLC; Order Approving a
Proposed Rule Change To Modify the Response Times in the Block
Mechanism, Facilitation Mechanism, Solicited Order Mechanism, and Price
Improvement Mechanism

January 4, 2017.

I. Introduction

    On November 8, 2016, ISE Gemini, LLC (the ``Exchange'' or ``ISE
Gemini'') filed with the Securities and Exchange Commission
(``Commission'') pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend ISE Gemini Rules 716 (Block Trades) and
723 (Price Improvement Mechanism for Crossing Transactions) to modify
the response times in the Block Order Mechanism, Facilitation
Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism
(``PIM'') from 500 milliseconds to a time period designated by the
Exchange of no less than 100 milliseconds and no more than 1 second.
The proposed rule change was published for comment in the Federal
Register on November 25, 2016.\3\ No comment letters were received on
the proposed rule change. This order approves the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 79353 (November 18,
2016), 81 FR 85280 (``Notice'').
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    ISE Gemini Rule 716 (Block Trades) contains the requirements
applicable to the execution of orders using the Block Order Mechanism,
Facilitation Mechanism, and Solicited Order Mechanism. The Block Order
Mechanism allows ISE Gemini members to obtain liquidity for the
execution of a block-size order.\4\ The Facilitation and Solicited
Order Mechanisms allow ISE Gemini members to enter cross transactions
seeking price improvement.\5\ ISE Gemini Rule 723 (Price Improvement
Mechanism for Crossing Transactions) contains the requirements
applicable to the execution of orders using the PIM. The PIM allows ISE
Gemini members to enter cross transactions of any size. The
Facilitation, Solicited Order Mechanisms, and PIM allow for ISE Gemini
members to designate certain customer orders for price improvement and
submit such orders into one of the mechanisms with a matching contra
order. Once such an order is submitted, ISE Gemini commences an auction
by broadcasting a message to all ISE Gemini members that includes the
series, price, size, and side of the market.\6\ Further, responses
within the PIM (i.e., Improvement Orders), are also broadcast to market
participants during the auction.
---------------------------------------------------------------------------

    \4\ Block-size orders are orders for 50 contracts or more. See
ISE Gemini Rule 716(a).
    \5\ Only block-size orders can be entered into the Facilitation
Mechanism, whereas only orders for 500 contracts or more can be
entered into the Solicited Order Mechanism. See ISE Gemini Rule
716(d) and (e).
    \6\ ISE Gemini members may choose to hide the size, side, and
price when entering orders into the Block Order Mechanism.
---------------------------------------------------------------------------

    Orders entered into the Block Order Mechanism, Facilitation
Mechanism, Solicited Order Mechanism, and PIM are currently exposed to
all market participants for 500 milliseconds, giving them an
opportunity to enter additional trading interest before the orders are
automatically executed. Under the proposal, ISE Gemini would determine
an exposure period for each of the four mechanisms that is no less than
100 milliseconds and no more than 1 second.\7\
---------------------------------------------------------------------------

    \7\ While the proposed rule change would allow ISE Gemini to
increase the exposure period up to 1 second, ISE Gemini stated that
it currently intends to decrease the time period allowed for
responses to 100 milliseconds. See Notice, supra note 3, at 85281.
ISE Gemini further noted that its proposal is consistent with
exposure periods permitted in similar mechanisms on other options
exchanges. See id. at 85281. See also Securities Exchange Act
Release Nos. 76301 (October 29, 2015), 80 FR 68347 (November 4,
2015) (SR-BX-2015-032) and 77557 (April 7, 2016), 81 FR 21935 (April
13, 2016) (SR-Phlx-2016-40).
---------------------------------------------------------------------------

III. Discussion and Commission's Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange.\8\
In particular, the Commission finds that the proposed rule change is
consistent with Section 6(b)(5) of the Act,\9\ which requires, among
other things, that the rules of a national securities exchange be
designed to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system and,
in general, to protect investors and the public interest, and not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. The Commission also finds that the proposed rule
change is consistent with Section 6(b)(8) of the Act,\10\ which
requires that the rules of an exchange not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act.
---------------------------------------------------------------------------

    \8\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    The Commission believes that, given the electronic environment of
ISE Gemini, reducing each of the exposure periods from 500 milliseconds
to no less than 100 milliseconds could facilitate the prompt execution
of orders, while continuing to provide market participants with an
opportunity to compete for exposed bids and offers. To substantiate
that its members could receive, process, and communicate a response
back to ISE Gemini within 100 milliseconds, ISE Gemini stated that it
surveyed all ISE Gemini members that responded to an auction in the
period beginning July 1, 2015 and ending January 15, 2016. Each of the
fifteen members surveyed indicated that they can currently receive,
process, and communicate a response back to ISE Gemini within 100
milliseconds. To implement the reduced exposure periods and help ensure
that ISE Gemini's and its members' systems are working properly given
the faster response times, ISE Gemini will reduce the auction time over
a period of weeks, ending at 100 milliseconds. Upon effectiveness of
the proposal, and at least six weeks prior to implementation of the
proposed rule change, ISE Gemini will issue a circular to its members,
informing them of the implementation date of the reduction of the
auction from 500 milliseconds to the auction time designated by ISE
Gemini (100 milliseconds), to allow members the opportunity to perform
systems changes. ISE Gemini also represented that it will issue a
circular at least four weeks prior to any future changes, as permitted
by its rules, to the auction time.\11\ In addition, ISE Gemini reviewed
all executions occurring in the mechanisms by ISE Gemini members from
March 28, 2016 to April 25, 2016. This review of executions in the
mechanisms indicated that approximately 98% of responses that resulted
in price improving executions at the conclusion of an auction were
submitted within 500 milliseconds. Approximately 94% of responses that
resulted in price improving executions

at the conclusion of an auction were submitted within 100 milliseconds,
and 83% were submitted within 50 milliseconds of the initial order.\12\
Furthermore, with regard to the impact of the proposal on system
capacity, ISE Gemini has analyzed its capacity and represented that it
has the necessary systems capacity to handle the potential additional
traffic associated with the additional transactions that may occur with
the implementation of the reduction in the auction duration to no less
than 100 milliseconds.\13\
---------------------------------------------------------------------------

    \11\ See Notice, supra note 3, at 85282.
    \12\ See id.
    \13\ See id.
---------------------------------------------------------------------------

    Based on ISE Gemini's statements, the Commission believes that
market participants should continue to have opportunities to compete
for exposed bids and offers within an exposure period of no less than
100 milliseconds and no more than 1 second.\14\ Accordingly, the
Commission believes that it is consistent with the Act for the Exchange
to modify the response times in the Block Mechanism, Facilitation
Mechanism, Solicited Order Mechanism, and PIM from 500 milliseconds to
a time period designated by the Exchange of no less than 100
milliseconds and no more than 1 second.
---------------------------------------------------------------------------

    \14\ The Commission notes that the ability to designate such an
exposure time period is consistent with the rules of other options
exchanges. See supra note 7. See also NASDAQ Phlx Rule
1080(n)(ii)(A)(4) and NASDAQ BX Options Rules Chapter VI, Section
9(ii)(A)(3).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\15\ that the proposed rule change (SR-ISEGemini-2016-14) be, and
hereby is, approved.
---------------------------------------------------------------------------

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

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-00219 Filed 1-9-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Notices]
[Pages 70865-70866]
[FR Doc No: 2012-28681]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68269; File No. SR-NSCC-2012-09]

Self-Regulatory Organizations; National Securities Clearing
Corporation; Notice of Filing and Immediate Effectiveness of Proposed
Rule Change To Modify Addendum A (Fee Structure) of Its Rules and
Procedures Relating to Fund/SERV[supreg] Fees

November 20, 2012.
    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 November 14, 2012, National Securities Clearing Corporation
(``NSCC'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared primarily by NSCC. NSCC
filed the proposal pursuant to Section 19(b)(3)(A)(ii) of the Act \3\
and Rule 19b-4(f)(2) \4\ thereunder so that the proposal was effective
upon filing with the Commission. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The proposed rule change modifies Addendum A (NSCC's Fee Structure)
of NSCC's Rules relating to Fund/SERV[supreg] fees.

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

    In its filing with the Commission, NSCC included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. NSCC prepared summaries, set forth in sections (A), (B)
and (C) below, of the most significant aspects of such statements.

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

    NSCC's Fund/SERV[supreg] is the industry standard for processing
and settling mutual fund transactions. Through automated, standardized
formats and a centralized platform, fund companies, banks and trust
companies, third-party administrators, broker/dealers and other
distribution firms can complete order entry--purchases, exchanges and
redemptions--as well as confirmations, registrations and money
settlement.
    Recently, there has been a growing trend in the mutual fund
industry toward omnibus processing, a practice where distribution firms
bundle multiple client transactions into aggregated orders. As a result
of this aggregation, the average number of daily trades processed
through Fund/SERV[supreg] has declined. NSCC expects the trend toward
omnibus processing to continue into the foreseeable future.
Accordingly, NSCC is increasing the Fund/SERV transaction fee from
$0.06 per transaction to $0.07 per transaction to align the fees
associated with Fund/SERV with the cost of delivering this service.
This increase will be implemented on January 1, 2013.
    NSCC believes the proposed rule change is consistent with the
requirements of the Act and the rules and regulations issued thereunder
applicable to NSCC because it updates NSCC's fee schedule and provides
for the equitable allocation of fees among NSCC's members.

(B) Self-Regulatory Organization's Statement on Burden on Competition

    NSCC does not believe that the proposed rule change will have any
impact or impose any burden on competition.

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

    Written comments relating to the proposed rule change have not been
solicited or received. NSCC will notify the Commission of any written
comments received by NSCC.

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

    The foregoing proposed rule change has become effective upon filing
pursuant to Section 19(b)(3)(A)(ii) of the Act \5\ and Rule 19b-4(f)(2)
\6\ thereunder because it establishes fees charged by NSCC on any
person. The implementation date for this proposed rule change will be
January 1, 2013.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \6\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml) or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NSCC-2012-09 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NSCC-2012-09. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filings will also be available
for inspection and copying at the principal office of NSCC and NSCC's
Web site: http://www.dtcc.com/downloads/legal/

rule--filings/2012/nscc/SR-NSCC-2012-09.pdf.
    All comments received will be posted without change; the Commission
does not edit personal identifying information from submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-NSCC-2012-09
and should be submitted on or before December 18, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
---------------------------------------------------------------------------

    \7\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-28681 Filed 11-26-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 87, Number 106 (Thursday, June 2, 2022)]
[Notices]
[Pages 33476-33477]
[FR Doc No: 2022-11831]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER22-1945-000]

Powells Creek Farm Solar, LLC; Supplemental Notice That Initial
Market-Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding of
Powells Creek Farm Solar, LLC's application for market-based rate
authority, with an accompanying rate tariff, noting that such
application includes a request for blanket authorization, under 18 CFR
part 34, of future issuances of securities and assumptions of
liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is June 15, 2022.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically may mail similar pleadings to
the

Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426. Hand delivered submissions in docketed proceedings should be
delivered to Health and Human Services, 12225 Wilkins Avenue Rockville,
Maryland 20852.
    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) using
the ``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. At this time,
the Commission has suspended access to the Commission's Public
Reference Room, due to the proclamation declaring a National Emergency
concerning the Novel Coronavirus Disease (COVID-19), issued by the
President on March 13, 2020. For assistance, contact the Federal Energy
Regulatory Commission at [email protected] or call toll-free,
(886) 208-3676 or TYY,<PHONE_NUMBER>.

    Dated: May 26, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2022-11831 Filed 6-1-22; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 77, Number 246 (Friday, December 21, 2012)]
[Notices]
[Pages 75636-75638]
[FR Doc No: 2012-30709]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2002-N-0106 (formerly 2002N-0291)]

Baldev Raj Bhutani; Denial of Hearing on Application for Special
Termination of Debarment

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is denying Baldev Raj
Bhutani's application for special termination of debarment under the
Federal Food, Drug, and Cosmetic Act (FD&C Act). Mr. Bhutani has failed
to file with the Agency information and analyses sufficient to create a
basis for a hearing concerning this action.

DATES: This order is effective December 21, 2012.

ADDRESSES: Comments should reference Docket No. FDA-2002-N-0106 and be
sent to the Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT:  G. Matthew Warren, Office of
Scientific Integrity, Food and Drug Administration, 10903 New Hampshire

Ave., Silver Spring, MD 20993,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    Mr. Bhutani is the former President and Treasurer of Alra
Laboratories, Inc. (Alra), a drug company. On February 12, 1996, in the
U.S. District Court for the Northern District of Illinois-Eastern
Division, Mr. Bhutani was found guilty of one count of conspiracy, a
Federal felony offense under 18 U.S.C. 371, and six other Federal
felonies related to violations under sections 301(a), (e), and (k) and
303(a)(2) of the FD&C Act (21 U.S.C. 331(a), (e), and (k) and
333(a)(2)). The basis for these convictions was Mr. Bhutani's conduct
surrounding his company's manufacture and distribution of the drug
products LACTULOSE Syrup and K + 10. According to the records of Mr.
Bhutani's criminal proceedings, he and Alra violated the FD&C Act by,
inter alia, including decomposed raw material in finished drug products
and deviating from approved manufacturing procedures by adding an
undocumented substance, sodium hydroxide, to drug products in an
unapproved manner. On October 12, 1999, Mr. Bhutani also pled guilty to
one count of wire fraud, a Federal felony under 18 U.S.C. 1343. On
February 15, 2000, the district court sentenced Mr. Bhutani for his
felony convictions. On December 2, 2004, pursuant to section 306(a)(2)
of the FD&C Act (21 U.S.C. 335a(a)(2)), FDA permanently debarred Mr.
Bhutani based on the foregoing Federal felony convictions (see 69 FR
70148 (Dec. 2, 2004)). As a result of his debarment, Mr. Bhutani may
not provide services in any capacity to a person with an approved or
pending drug product application under section 505, 512, or 802 of the
FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the
Public Health Service Act (42 U.S.C. 262).
    On August 18, 2010, Mr. Bhutani applied for special termination of
debarment under section 306(d)(4) of the FD&C Act. Under sections
306(d)(4)(C) and (D) of the FD&C Act, FDA may limit the period of
debarment of a permanently debarred individual if the Agency finds
that: (1) The debarred individual has provided substantial assistance
in the investigation or prosecution of offenses described in section
306(a) or (b) of the FD&C Act or relating to a matter under FDA's
jurisdiction; (2) termination of the debarment serves the interest of
justice; and (3) termination of the debarment does not threaten the
integrity of the drug approval process.
    By a letter dated March 2, 2011, the Director of the Office of
Enforcement, Office of Regulatory Affairs (the Director) offered Mr.
Bhutani an opportunity for a regulatory hearing under 21 CFR part 16 on
a proposal to deny his application for special termination of
debarment. In the letter, the Director set forth his determination that
Mr. Bhutani's application did not demonstrate that he provided
substantial assistance in investigations or prosecutions of any
offenses related to any matter within the jurisdiction of FDA in
accordance with section 306(d)(4)(C) of the FD&C Act. In a submission
received April 7, 2011, Mr. Bhutani requested a hearing on the
Director's proposed denial of his application.
    Under Sec.  16.26(a), FDA may deny a request for a hearing upon a
determination that ``no genuine and substantial issue of fact has been
raised by the material submitted.'' The Chief Scientist has reviewed
Mr. Bhutani's request for a hearing, as well as the materials submitted
in support of that request, and concludes that Mr. Bhutani's request
for a hearing fails to raise any genuine and substantial issues of fact
requiring a hearing and that his application for termination of
debarment does not satisfy any of the statutory grounds for
termination.

II. Arguments

    In his application for termination of debarment, Mr. Bhutani argues
that FDA should terminate his debarment under section 306(d)(4) of the
FD&C Act for a number of reasons, including many focusing on the
fairness of the criminal convictions underlying his permanent debarment
under section 306(a)(2). Section 306(d) of the FD&C Act describes the
circumstances under which FDA may terminate an individual's debarment.
Under section 306(d)(3)(B)(i) of the FD&C Act, FDA must withdraw an
order debarring an individual upon reversal of the criminal conviction
or convictions forming the basis for his or her debarment. Section
306(d)(3)(B)(ii) of the FD&C Act provides that FDA must grant an
application for termination of debarment submitted by an individual
under 306(d)(1) ``if such termination serves the interests of justice
and adequately protects the integrity of the drug approval process,''
but only if the individual was subjected to permissive debarment under
section 306(b)(2)(B) or (b)(3). In fact, section 306(d)(1) of the FD&C
Act specifies that an individual permanently debarred may not submit
such an application. Finally, under section 306(d)(4) of the FD&C Act,
FDA may grant an individual's application for special termination of
debarment upon a finding that he or she ``has provided substantial
assistance in the investigations or prosecutions of offenses which are
described in [section 306(a) or (b)] or which relate to any matter
under the jurisdiction of [FDA]'' (see section 306(d)(4)(C)).
    Inasmuch as FDA permanently debarred Mr. Bhutani under section
306(a)(2) of the FD&C Act, based on his Federal felony convictions for
conduct related to drug products, he is only eligible for termination
of debarment if: (1) The convictions underlying his debarment were
overturned (see section 306(d)(3)(B)(i)) or (2) he has provided
substantial assistance in the investigations or prosecutions of
offenses which are described in section 306(a) or (b) or which relate
to a matter within FDA's jurisdiction (see section 306(d)(4)(C)). Mr.
Bhutani has presented no reason to believe that a court has overturned
the felony convictions on which his permanent debarment was based. If a
court were to overturn his convictions based on the arguments Mr.
Bhutani now makes with respect to the fairness and validity of those
convictions, however, FDA would withdraw the order debarring him. The
sole remaining issue is whether Mr. Bhutani is eligible for special
termination of debarment under section 306(d)(4)(C) of the FD&C Act,
and to be so eligible he must have provided substantial assistance in
the sense contemplated by that provision.
    In his application for termination of debarment and request for a
hearing, Mr. Bhutani argues that his debarment should be terminated on
the grounds that he provided substantial assistance and cooperated with
FDA in related investigations regarding Alra's compliance with FDA's
current good manufacturing practices (cGMP) regulations and offered his
full support to bring his own company, Alra, into cGMP compliance. Mr.
Bhutani asserts that he and Alra twice entered consent decrees with
FDA, both in 1991 and 1999, that required the correction of many of the
violations of the FD&C Act underlying his felony convictions. Mr.
Bhutani contends that, in accordance with those consent decrees, he
worked cooperatively with FDA to ensure that Alra was manufacturing and
distributing drugs in compliance with the FD&C Act. He also claims
that, in 1991, he provided some of the information to investigators
that led to his own criminal convictions and the criminal investigation
and prosecution of Alra and him.

    Section 306(d)(4)(C) of the FD&C Act does not define ``substantial
assistance.'' When FDA has granted requests for special termination of
debarment, however, it has stated that the Agency ``considers a
determination by the [United States] Department of Justice concerning
the substantial assistance of a debarred individual conclusive in most
cases'' (see, e.g., 68 FR 58352 (October 9, 2003)). The U.S. Department
of Justice typically determines whether an individual has provided
substantial assistance in accordance with section 5K1.1 of the U.S.
Sentencing Guidelines (USSG) during the sentencing phase of a Federal
criminal trial. Section 5K1.1 states, ``Upon motion of the government
stating that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an
offense, the court may depart from the [sentencing] guidelines.'' Rule
35(b) of the Federal Rules of Criminal Procedure and 18 U.S.C. 3553(e)
also permit a court to depart from the guideline range or a statutory
minimum sentence upon motion by the government if the defendant
``provided substantial assistance in investigating or prosecuting
another person.'' The Generic Drug Enforcement Act (GDEA) amended the
FD&C Act to provide FDA with debarment authority. The language in
section 306(d)(4)(C) of the FD&C Act, which was included in the GDEA in
response to a request from the U.S. Department of Justice (see 138
Cong. Rec. S5614 (April 10, 1992) (statement of Sen. Kennedy)), clearly
mirrors the forgoing language applicable to Federal criminal
defendants.
    Much of the conduct to which Mr. Bhutani points as the basis for
claiming that he has provided ``substantial assistance in
investigations or prosecutions'' of offenses within the jurisdiction of
FDA occurred before his sentencing in 2000. Mr. Bhutani, however, does
not provide any evidence that the U.S. Department of Justice moved for
a downward departure on the basis of a substantial assistance
determination under USSG section 5K1.1 when he was sentenced for the
convictions that triggered his permanent debarment. Furthermore, even
assuming that FDA could grant special termination of an individual's
debarment under section 306(d)(4)(C) of the FD&C Act if the government
has never moved a court for downward departure on the basis of
substantial assistance, the conduct described by Mr. Bhutani does not
suffice to show substantial assistance in the sense contemplated by
that statutory provision. Mr. Bhutani merely claims that he voluntarily
provided some information about the offenses he and his own company,
Alra, committed and that he cooperated with FDA in resolving
outstanding civil matters involving Alra and him on two separate
occasions.
    Although section 306(d)(4)(C) of the FD&C Act does not explicitly
specify that the substantial assistance must be for the investigation
or prosecution of another person's offenses, the appropriate statutory
interpretation should be consistent with ``substantial assistance''
when used as a ``term of art'' \1\ in the context of criminal
proceedings. (See Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (holding
that, ``where a phrase in a statute appears to have become a term of
art, * * * any attempt to break down the term into its constituent
words is not apt to illuminate its meaning'')). As noted above, USSG
section 5K1.1, Rule 35(b) of the Federal Rules of Criminal Procedure
and 18 U.S.C. 3553(e) permit a court to depart from the guideline range
or a statutory minimum sentence upon motion by the government if the
defendant ``provided substantial assistance in investigating or
prosecuting another person.'' FDA therefore construes ``substantial
assistance in the investigations or prosecutions of offenses'' to
require that the assistance be provided with respect to another
person's offenses.
---------------------------------------------------------------------------

    \1\ See United States v. Ellis, 527 F.3d. 203, 206 (1st Cir.
2008) (holding that ``substantial assistance,'' in the context of
original sentencing, is a term of art and that the meaning of the
term in USSG section 5K1.1 and Rule 35(b) is the same).
---------------------------------------------------------------------------

    As a result, under section 306(d)(4)(C) of the FD&C Act, the
information provided by Mr. Bhutani about his own offenses, and those
of his own company, very early in a criminal investigation does not
qualify as substantial assistance. Likewise, Mr. Bhutani's assertions
that he decided to resolve pending regulatory issues with FDA by
entering into consent agreements that required him and his company to
comply with the law do not show that he provided substantial assistance
in the investigation or prosecution of offenses of another person. In
fact, all Mr. Bhutani claims to have done was decide to take steps to
comply with the law after he had violated it. Such steps clearly do not
constitute substantial assistance in the investigation or prosecution
of offenses.

III. Conclusion

    Therefore, the Chief Scientist, under authority delegated to him,
denies Mr. Bhutani's application for special termination of debarment
under section 306(d)(4)(C) of the FD&C Act. A hearing on this request
is not necessary because there are no genuine and substantial issues of
fact (see 21 CFR 16.26(a)).
    Any person with an approved or pending drug product application who
knowingly uses the services of Mr. Bhutani, in any capacity during his
period of debarment, will be subject to civil money penalties (section
307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6))). If Mr. Bhutani
provides services in any capacity to a person with an approved or
pending drug product application, he will be subject to civil money
penalties (section 307(a)(7) of the FD&C Act). In addition, FDA will
not accept or review any abbreviated new drug applications submitted by
or with the assistance of Mr. Bhutani during his period of debarment
(section 306(c)(1)(B) of the FD&C Act (21 U.S.C. 335a(c)(1)(B))).

    Dated: December 10, 2012.
Jesse L. Goodman,
Chief Scientist.
[FR Doc. 2012-30709 Filed 12-20-12; 8:45 am]
BILLING CODE 4160-01-P