[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Notices]
[Pages 387-393]
[FR Doc No: 2022-28544]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 96587; File No. SR-ISE-2022-29]

Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend ISE
Options 7, Section 4

December 28, 2022.
    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 December 13, 2022, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``Commission'')
the proposed rule change as described in Items I and II below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend ISE's Pricing Schedule at Options 7,
Section 4.\3\
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    \3\ The Exchange originally filed SR-ISE-2022-27 on December 1,
2022. On December 13, 2022, the Exchange withdrew SR-ISE-2022-27 and
submitted this rule change.
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    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/ise/rules, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend ISE's Pricing Schedule at Options 7,
Section 4, Complex Order Fees and Rebates. The Exchange proposes to:
(1) increase Complex Order Priority Customer \4\ Rebates for Select
Symbols \5\ and Non-Select Symbols; \6\ (2) increase Complex Order
Taker Fees for Non-Select Symbols; and (3) amend notes 3 and 8 of
Options 7, Section 4 related to Complex Orders. Each change will be
described below.
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    \4\ A ``Priority Customer'' is a person or entity that is not a
broker/dealer in securities, and does not place more than 390 orders
in listed options per day on average during a calendar month for its
own beneficial account(s), as defined in ISE Options 1, Section
1(a)(37). Unless otherwise noted, the term ``Priority Customer''
includes ``Retail.'' See Options 7, Section 1(c).
    \5\ ``Select Symbols'' are options overlying all symbols listed
on the Nasdaq ISE that are in the Penny Interval Program. See
Options 7, Section 1(c).
    \6\ ``Non-Select Symbols'' are options overlying all symbols
excluding Select Symbols. See Options 7, Section 1(c).
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Complex Order Priority Customer Rebates
    The Exchange proposes to amend Tiers 6 through 10 of the Complex
Order Priority Customer Rebates for Select Symbols and Non-Select
Symbols. The Exchange currently offers Members Complex Order Priority
Customer Rebates based on a percentage of Total Affiliated Member or
Affiliated Entity Complex Order Volume (excluding Crossing Orders \7\
and Responses to Crossing Orders \8\) Calculated as a Percentage of
Customer Total Consolidated Volume. The Exchange

offers ten tiers of Complex Order rebates. Currently, the Priority
Customer Rebates for Select Symbols and Non-Select Symbols for Complex
Orders are as follows:
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    \7\ A ``Crossing Order'' is an order executed in the Exchange's
Facilitation Mechanism, Solicited Order Mechanism, Price Improvement
Mechanism (PIM) or submitted as a Qualified Contingent Cross order.
For purposes of this Pricing Schedule, orders executed in the Block
Order Mechanism are also considered Crossing Orders. See Options 7,
Section 1(c).
    \8\ ``Responses to Crossing Order'' is any contra-side interest
submitted after the commencement of an auction in the Exchange's
Facilitation Mechanism, Solicited Order Mechanism, Block Order
Mechanism or PIM. See Options 7, Section 1(c).

                                            Priority Customer Rebates
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                                                 Total affiliated member or affiliated
                                                entity complex order volume (excluding
                                                   crossing orders and responses to      Rebate for   Rebate for
        Priority customer complex tier             crossing orders) calculated as a        select     non-select
                                                     percentage of customer total         symbols      symbols
                                                          consolidated volume
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Tier 1........................................  0.000%-0.200%.........................      ($0.25)      ($0.40)
Tier 2........................................  Above 0.200%-0.400%...................       (0.30)       (0.55)
Tier 3........................................  Above 0.400%-0.450%...................       (0.35)       (0.70)
Tier 4........................................  Above 0.450%-0.750%...................       (0.40)       (0.75)
Tier 5........................................  Above 0.750%-1.000%...................       (0.45)       (0.80)
Tier 6........................................  Above 1.000%-1.350%...................       (0.47)       (0.80)
Tier 7........................................  Above 1.350%-1.750%...................       (0.48)       (0.80)
Tier 8........................................  Above 1.750%-2.750%...................       (0.52)       (0.85)
Tier 9........................................  Above 2.750%-4.500%...................       (0.52)       (0.86)
Tier 10.......................................  Above 4.500%..........................       (0.53)       (0.88)
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    The Exchange proposes to amend Complex Order Priority Customer
Rebate Tiers 6 through Tier 10 for both Select Symbols and Non-Select
Symbols. With this proposal, the Exchange would increase the Complex
Order Priority Customer Rebates for Select Symbols as follows: Tier 6
would increase from $0.47 to $0.48 per contract, Tier 7 would increase
from $0.48 to $0.51 per contract, Tier 8 would increase from $0.52 to
$0.55 per contract, Tier 9 would increase from $0.52 to $0.56 per
contract, and Tier 10 would increase from $0.53 to $0.57 per contract.
Also, the Exchange would increase the Complex Order Priority Customer
Rebates for Non-Select Symbols as follows: Tier 6 would increase from
$0.80 to $0.85 per contract, Tier 7 would increase from $0.80 to $0.92
per contract, Tier 8 would increase from $0.85 to $1.03 per contract,
Tier 9 would increase from $0.86 to $1.04 per contract, and Tier 10
would increase from $0.88 to $1.05 per contract. The Exchange believes
that these increased Complex Order Priority Customer Rebates will
attract more Complex Order flow to ISE.
Complex Order Maker and Taker Fees
    Today, the Exchange assesses the following Complex Order Maker and
Taker Fees:

                                              Maker and Taker Fees
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                                                                           Maker fee for
                                                           Maker fee for    non-select
                                  Maker fee   Maker fee   select symbols   symbols when   Taker fee   Taker fee
       Market participant            for       for non-    when trading       trading        for       for non-
                                    select      select        against         against       select      select
                                   symbols     symbols       priority        priority      symbols     symbols
                                                             customer        customer
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Market Maker....................      $0.10        $0.20           $0.50           $0.86      $0.50        $0.86
Non-Nasdaq ISE Market Maker            0.20         0.20            0.50            0.88       0.50         0.88
 (FarMM)........................
Firm Proprietary/Broker-Dealer..       0.10         0.20            0.50            0.88       0.50         0.88
Professional Customer...........       0.10         0.20            0.50            0.88       0.50         0.88
Priority Customer...............       0.00         0.00            0.00            0.00       0.00         0.00
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    The Exchange proposes to increase the Complex Order Taker Fees for
Non-Select Symbols. Specifically, the Exchange proposes to increase the
Complex Order Taker Fees for Non-Select Symbols as follows: Market
Maker \9\ from $0.86 to $0.98 per contract, Non-Nasdaq ISE Market Maker
(FarMM) \10\ from $0.88 to $0.98 per contract, Firm Proprietary \11\/
Broker-Dealer \12\ from $0.88 to $0.98 per contract, and Professional
Customer \13\ from $0.88 to $0.98 per contract. Priority Customers
would continue to be assessed no Complex Order Taker Fees for Non-
Select Symbols. The Exchange's proposal would increase Complex Order
Taker Fees in Non-Select Symbols for Non-Priority Customers \14\ to
afford Complex Order Priority Customers greater rebates.
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    \9\ The term ``Market Makers'' refers to ``Competitive Market
Makers'' and ``Primary Market Makers'' collectively. See Options 1,
Section 1(a)(21).
    \10\ A ``Non-Nasdaq ISE Market Maker'' is a market maker as
defined in Section 3(a)(38) of the Securities Exchange Act of 1934,
as amended, registered in the same options class on another options
exchange. See ISE Options 7, Section 1(c).
    \11\ A ``Firm Proprietary'' order is an order submitted by a
member for its own proprietary account. See ISE Options 7, Section
1(c).
    \12\ A ``Broker-Dealer'' order is an order submitted by a member
for a broker-dealer account that is not its own proprietary account.
See ISE Options 7, Section 1(c).
    \13\ A ``Professional Customer'' is a person or entity that is
not a broker/dealer and is not a Priority Customer. See ISE Options
7, Section 1(c).
    \14\ ``Non-Priority Customers'' include Market Makers, Non-
Nasdaq ISE Market Makers (FarMMs), Firm Proprietary/Broker-Dealers,
and Professional Customers. See ISE Options 7, Section 1(c).
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    The Exchange also proposes to amend notes 3 and 8 within Options 7,
Section 4 related to Complex Orders. Currently, note 3 applies to a
Market Maker's Maker Fee for Select Symbols when trading against a
Priority Customer in Complex Orders and to a Market Maker's Taker Fee
for Select Symbols in Complex Orders. Current note 3 provides, ``This
fee is $0.49 per contract for Market Makers that achieve Priority
Customer Complex Tier 8, $0.47 per

contract for Market Makers that achieve Priority Customer Complex Tier
9, and $0.44 per contract for Market Makers that achieve Priority
Customer Complex Tier 10.''
    The Exchange proposes to eliminate the current note 3 and no longer
offer lower Complex Order Maker Fees for Select Symbols when trading
against Priority Customer or Complex Order Taker Fees in Select Symbols
to Members who achieve Priority Customer Complex Order Rebate Tiers 8,
9 or 10. Instead, the Exchange proposes to offer Members an opportunity
to lower the Non-Priority Customer Complex Order Taker Fees in Select
Symbols from $0.50 to $0.38 per contract on orders that execute against
Priority Customer Complex Orders entered by an Affiliated Member \15\
or Affiliated Entity.\16\ Today, Affiliated Members and Affiliated
Entities may aggregate certain volume for purposes of receiving
increased rebates or discounted fees including Complex Order Priority
Customer Rebates. The Exchange's proposal would offer Members an
opportunity to lower their Complex Order Taker Fee in Select Symbols
provided the order that executes against Priority Customer Complex
Orders in Select Symbols was entered by an Affiliated Member or
Affiliated Entity. Note 3 would incentivize Members to execute orders
on ISE in an effort to pay lower Non-Priority Customer Complex Order
Taker Fees in Select Symbols. Additionally, note 3 would exclude
Complex Orders executed in the Facilitation Mechanism,\17\ the
Solicited Order Mechanism \18\ and the Price Improvement Mechanism \19\
where these auction mechanisms have separate pricing. As proposed, note
3 would provide, ``This Taker Fee is $0.38 per contract when executed
against Priority Customer Complex Orders in Select Symbols entered by
an Affiliated Member or Affiliated Entity, excluding Complex Orders
executed in the Facilitation Mechanism, Solicited Order Mechanism, and
Price Improvement Mechanism.''
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    \15\ An ``Affiliated Member'' is a Member that shares at least
75% common ownership with a particular Member as reflected on the
Member's Form BD, Schedule A. See Options 7, Section 1(c).
    \16\ An ``Affiliated Entity'' is a relationship between an
Appointed Market Maker and an Appointed OFP for purposes of
qualifying for certain pricing specified in the Schedule of Fees.
Market Makers and OFPs are required to send an email to the Exchange
to appoint their counterpart, at least 3 business days prior to the
last day of the month to qualify for the next month. The Exchange
will acknowledge receipt of the emails and specify the date the
Affiliated Entity is eligible for applicable pricing, as specified
in the Pricing Schedule. Each Affiliated Entity relationship will
commence on the 1st of a month and may not be terminated prior to
the end of any month. An Affiliated Entity relationship will
automatically renew each month until or unless either party
terminates earlier in writing by sending an email to the Exchange at
least 3 business days prior to the last day of the month to
terminate for the next month. Affiliated Members may not qualify as
a counterparty comprising an Affiliated Entity. Each Member may
qualify for only one (1) Affiliated Entity relationship at any given
time. See Options 7, Section 1(c).
    \17\ The Facilitation Mechanism is a process by which an
Electronic Access Member can execute a transaction wherein the
Electronic Access Member seeks to facilitate a block-size order it
represents as agent, and/or a transaction wherein the Electronic
Access Member solicited interest to execute against a block-size
order it represents as agent. See Options 3, Section 11(b).
    \18\ The Solicited Order Mechanism is a process by which an
Electronic Access Member can attempt to execute orders of 500 or
more contracts it represents as agent (the ``Agency Order'') against
contra orders that it solicited. Each order entered into the
Solicited Order Mechanism shall be designated as all-or-none. See
Options 3, Section 11(d).
    \19\ The Price Improvement Mechanism is a process by which an
Electronic Access Member can provide price improvement opportunities
for a transaction wherein the Electronic Access Member seeks to
facilitate an order it represents as agent, and/or a transaction
wherein the Electronic Access Member solicited interest to execute
against an order it represents as agent (a ``Crossing
Transaction''). See Options 3, Section 13.
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    The Exchange believes that the proposed note 3 reduced Non-Priority
Customer Complex Order Taker Fees for Select Symbols will attract order
flow to ISE. As proposed, Priority Customers are eligible for increased
Complex Order Rebates and continue to pay no Complex Order Taker Fees.
The Exchange believes that the increased Complex Order Priority
Customer Rebates and $0.00 per contract Complex Order Priority Customer
Taker Fee taken together with the opportunity for lower Non-Priority
Customer Complex Order Taker Fees for Select Symbols will continue to
encourage an active and liquid market in Complex Order Select Symbols
on ISE.
    The Exchange proposes to amend note 8 within Options 7, Section 4
related to Complex Orders. Currently, note 8 applies to Complex Order
Non-Priority Customer Taker Fees for Non-Select Symbols. Current note 8
provides, ``A $0.05 per contract surcharge will be assessed to non-
Priority Customer Complex Orders that take liquidity from the Complex
Order Book, excluding Complex Orders executed in the Facilitation
Mechanism, Solicited Order Mechanism, Price Improvement Mechanism and
``exposure'' auctions pursuant to Options 3, Section 14(c)(3).'' The
Exchange proposes to amend note 8 to increase the surcharge from $0.05
to $0.12 per contract. The surcharge was originally adopted to offset
the costs of providing the Complex Order Priority Customer Rebates.
With the proposed increased to Complex Order Priority Customer Rebates
described herein, the Exchange proposes to increase the surcharge from
$0.05 to $0.12 per contract. The Exchange believes that it is
appropriate to revisit this surcharge and increase it at this time.
Additionally, the Exchange proposes to continue to assess the surcharge
to non-Priority Customer Complex Orders that take liquidity from the
Complex Order Book, but now proposes to assess the surcharge when those
orders are executed against Priority Customer Complex Orders. The
proposed change is intended to align more closely the surcharge to the
Complex Order Priority Customer Rebates. Finally, the Exchange proposes
to continue to exclude Complex Orders entered in the Facilitation
Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism,
but include Exposure Complex Orders \20\ and Exposure Only Complex
Orders \21\ pursuant to Options 3, Section 14(b)(13) and (14)).\22\ The
Exchange notes that there is separate pricing for the auction
mechanisms, however Exposure Complex Orders and Exposure Only Complex
Orders do not have separate pricing and these orders

are exposed upon entry and may not be entered on the Complex Order
Book. The Exchange proposes to subject Exposure Complex Orders and
Exposure Only Complex Orders to the same pricing as other orders
entered into the Complex Order Book. The Proposed note 8 would provide,
``A $0.12 per contract surcharge will be assessed to Non-Priority
Customer Complex Orders that take liquidity from the Complex Order Book
(including Exposure Complex Orders and Exposure Only Complex Orders
pursuant to Options 3, Section 14(b)(13) and (14)) when executed
against Priority Customer Complex Orders, excluding Complex Orders
executed in the Facilitation Mechanism, Solicited Order Mechanism, and
Price Improvement Mechanism.'' With this amendment, the Exchange seeks
to fortify Member participation in the Complex Order Priority Customer
rebate program and incentivize increased Complex Order volume on the
Exchange. Note 8 would continue to apply to Complex Order Non-Priority
Customer Taker Fees for Non-Select Symbols and, as proposed, would also
apply to Non-Priority Customer Taker Fees for Select Symbols.
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    \20\ An Exposure Complex Order is an order that will be exposed
upon entry as provided in Supplementary Material .01 to this Options
3, Section 12 if eligible, or entered on the Complex Order Book if
not eligible. Any unexecuted balance of an Exposure Complex Order
remaining upon the completion of the exposure process will be
entered on the Complex Order Book. See Options 3, Section 14(b)(13).
    \21\ An Exposure Only Complex Order is an order that will be
exposed upon entry as provided in Supplementary Material .01 to this
Rule if eligible, or cancelled if not eligible. Any unexecuted
balance of an Exposure Only Complex Order remaining upon the
completion of the exposure process will be cancelled. See Options 3,
Section 14(b)(14).
    \22\ Today, note 8 within Options 7, Section 4 excludes
``exposure'' auctions pursuant to Options 3, Section 14(c)(3). The
Exchange notes that Exposure Complex Orders and Exposure Only
Complex Orders are the two order types that are utilized by Members
to designate an order as eligible for the Complex Order Exposure
described within Supplementary Material .01 to Options 3, Section
14. The original rule change cited ``exposure'' auctions pursuant to
ISE Rule 722(b)(3)(iii) which rule text was relocated to 722(b)
Supplementary Material .01 to Rule 722 and later became
Supplementary .01 to Options 3, Section 14. See Securities Exchange
Act Release Nos. 82644 (February 6, 2018), 83 FR 6069 (February 12,
2018) (SR-ISE-2018-10) (Notice of Filing and Immediate Effectiveness
of Proposed Rule Change To Amend the Exchange's Schedule of Fees To
Modify Complex Order Fees and Rebates); 84373 (October 5, 2018), 83
FR 51730 (October 12, 2018) (SR-ISE-2018-56) (Notice of Filing of
Amendment No. 1 and Order Granting Accelerated Approval of a
Proposed Rule Change, as Modified by Amendment No. 1, To Amend Its
Rules Relating to Complex Orders); and 86138 (June 18, 2019), 84 FR
29567 (June 24, 2019) (SR-ISE-2019-17) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change To Relocate ISE's
Rules From Their Current Place in the Rulebook Into the New Rulebook
Shell).
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Technical Amendment
    The Exchange also proposes to amend ``non-Priority Customer'' to
``Non-Priority Customer'' within notes 1 and 8 of Options 7, Section 4.
This term is defined within Options 7, Section 1(c).
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\23\ in general, and furthers the objectives of
Sections 6(b)(4) and 6(b)(5) of the Act,\24\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees, and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \23\ 15 U.S.C. 78f(b).
    \24\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposal Is Reasonable
    The proposed changes to its Pricing Schedule are reasonable in
several respects. As a threshold matter, the Exchange is subject to
significant competitive forces in the market for options transaction
services that constrain its pricing determinations in that market. The
fact that this market is competitive has long been recognized by the
courts. In NetCoalition v. Securities and Exchange Commission \25\
(``NetCoalition''), the D.C. Circuit stated, ``[n]o one disputes that
competition for order flow is `fierce.' . . . As the SEC explained,
`[i]n the U.S. national market system, buyers and sellers of
securities, and the broker-dealers that act as their order-routing
agents, have a wide range of choices of where to route orders for
execution'; [and] `no exchange can afford to take its market share
percentages for granted' because `no exchange possesses a monopoly,
regulatory or otherwise, in the execution of order flow from broker
dealers'. . . .'' \26\
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    \25\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \26\ Id. at 539 (quoting Securities Exchange Act Release No.
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008)
(SR-NYSEArca-2006-21)).
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    Numerous indicia demonstrate the competitive nature of this market.
For example, clear substitutes to the Exchange exist in the market for
options transaction services. The Exchange is only one of sixteen
options exchanges to which market participants may direct their order
flow. Within this environment, market participants can freely and often
do shift their order flow among the Exchange and competing venues in
response to changes in their respective pricing schedules. Within the
foregoing context, the proposal represents a reasonable attempt by the
Exchange to attract additional order flow to the Exchange and increase
its market share relative to its competitors.
Complex Order Priority Customer Rebates
    The Exchange's proposal to increase Complex Order Priority Customer
Rebate Tiers 6 through 10 for Select Symbols and Non-Select Symbols is
reasonable because the increased Priority Customer Rebates would
attract additional Complex Order Priority Customer order flow to ISE in
both Select Symbols and Non-Select Symbols. All Members may interact
with the Complex Order Priority Customer order flow attracted by these
higher rebates. Specifically, the Exchange believes that its proposal,
which, among other things, increases rebate amounts where Members can
qualify for larger rebates, is reasonable as it will encourage Members
to increase the amount of Priority Customer Complex Orders that they
send to the Exchange instead of sending this order flow to a competing
options exchange. The Exchange believes that with the proposed rebate
levels, Members who submit the same amount of order flow as they do
today for Complex Order Priority Customer Rebate Tiers 6 through 10 for
Select Symbols and Non-Select Symbols would receive larger rebates.
    The Exchange's proposal to amend Complex Order Tiers 6 through 10
of the Priority Customer Rebates for Select Symbols and Non-Select
Symbols is equitable and not unfairly discriminatory. Today, Complex
Order Rebates are only offered to Priority Customer Complex Orders.
Priority Customer liquidity is the most sought after liquidity.
Priority Customer liquidity benefits all market participants by
providing more trading opportunities, which attracts Market Makers. An
increase in the activity of these market participants in turn
facilitates tighter spreads, which may cause an additional
corresponding increase in order flow from other market participants.
Paying Complex Order Priority Customer Rebates is consistent with the
treatment of Priority Customers on MIAX Emerald, LLC.\27\
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    \27\ See MIAX Emerald's Fee Schedule. MIAX Emerald pays complex
orders from Priority Customers the highest rebates.
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Maker and Taker Fees
    The Exchange's proposal to increase the Complex Order Taker Fees
for Non-Select Symbols is reasonable because the proposal would permit
ISE to offer higher Complex Order Priority Customer Rebates to attract
additional Priority Customer order flow to ISE in both Select Symbols
and Non-Select Symbols. All Members may interact with the Complex Order
Priority Customer order flow attracted by these higher rebates. While
the Exchange is increasing the Complex Order Taker Fees for Non-Select
Symbols, the Exchange believes that market participants will continue
to be incentivized to send Complex Order Priority Customer order flow
to ISE to obtain the Priority Customer Complex Order Rebates offered by
the Exchange. Additionally, the increased Complex Order Taker Fees
remain competitive with BOX Exchange LLC (``BOX'').\28\ Overall,
combined with the proposed larger Priority Customer Complex Order
rebates, the Exchange believes that the proposed change will generally
allow the Exchange and its Members to better compete for Complex Order
flow by increasing Priority Customer liquidity thus enhancing
competition.
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    \28\ See BOX complex orders fees for non-public customers which
range from $0.98 to $1.00 per contract.
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    The Exchange's proposal to increase the Complex Order Taker Fees
for Non-Select Symbols is equitable and not unfairly discriminatory.
The Exchange

would uniformly assess a $0.98 per contract Complex Order Taker Fee for
Non-Select Symbols to all Non-Priority Customers. Priority Customers
would continue to be assessed no Complex Order Taker Fee for Non-Select
Symbols. Priority Customer liquidity is the most sought after
liquidity. Priority Customer liquidity benefits all market participants
by providing more trading opportunities, which attracts Market Makers.
An increase in the activity of these market participants in turn
facilitates tighter spreads, which may cause an additional
corresponding increase in order flow from other market participants.
    The Exchange's proposal to amend note 3 within Options 7, Section 4
with respect to Complex Order Taker Fees for Select Symbols is
reasonable because the Exchange would assess a lower Non-Priority
Customer Complex Order Taker Fee ($0.38 vs. $0.50 per contract) in
Select Symbols when an order that was entered by an Affiliated Member
or Affiliated Entity executes against Priority Customer Complex Orders
in Select Symbols. While the proposal would eliminate the current note
3, thereby no longer offering lower Complex Order Maker Fees for Select
Symbols when trading against Priority Customers and Taker Fees for
Select Symbols to Members who achieve Priority Customer Complex Order
Rebate Tiers 8, 9 or 10, the Exchange would offer Members an
opportunity to lower Non-Priority Customer Complex Orders Taker Fees in
Select Symbols from $0.50 to $0.38 per contract when an order that
executed against Priority Customer Complex Orders is entered by an
Affiliated Member or Affiliated Entity. Today, Affiliated Members and
Affiliated Entities may aggregate certain volume for purposes of
receiving increased rebates or discounted fees.\29\ The Exchange's
proposal is reasonable because it would offer Members the opportunity
to lower their Non-Priority Customer Complex Order Taker Fee in Select
Symbols, provided they execute against Priority Customer Complex Orders
in Select Symbols that was entered by an Affiliated Member or
Affiliated Entity. The proposal to exclude Complex Orders executed in
the Exchange's various auction mechanisms from the proposed Non-
Priority Customer Complex Order surcharge is reasonable because those
auction mechanisms are subject to separate pricing. Proposed note 3
would incentivize Members to execute orders on ISE in an effort to pay
a lower Non-Priority Customer Complex Order Taker Fee in Select
Symbols. The Exchange believes that the proposed note 3 reduced Complex
Order Non-Priority Customer Taker Fee for Select Symbols will attract
order flow to ISE. As proposed, Priority Customers are eligible for
increased Complex Order Rebates and continue to pay no Complex Order
Taker Fees. The Exchange believes that the higher Complex Order
Priority Customer Rebates and the $0.00 per contract Complex Order
Priority Customer Taker Fee taken together with the opportunity for a
lower Complex Order Non-Priority Customer Taker Fee for Select Symbols,
will continue to encourage an active and liquid market in Non-Select
Symbols on ISE. Also, the Exchange proposes to continue to incentivize
certain Members, who are not Affiliated Members or Affiliated Entities,
to enter into such a relationship for the purpose of aggregating volume
executed on the Exchange to qualify to reduce their Complex Order Non-
Priority Customer Taker Fee in Select Symbols.
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    \29\ Affiliated Members may not qualify as a counterparty
comprising an Affiliated Entity. See Options 7, Section 1(c).
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    The Exchange's proposal to amend note 3 within Options 7, Section 4
with respect to Complex Order Taker Fees for Select Symbols is
equitable and not unfairly discriminatory because all Non-Priority
Customers would be assessed a lower Complex Order Taker Fee in Select
Symbols when executing against Priority Customer Complex Orders in
Select Symbols entered by an Affiliated Member or Affiliated Entity.
Priority Customers pay no Complex Order Taker Fees in Select Symbols
and, therefore, are not offered the lower fee. Additionally, offering
Members the opportunity to lower their Non-Priority Customer Complex
Order Taker Fee in Select Symbols provided they execute against
Priority Customer Complex Orders in Select Symbols that was entered by
an Affiliated Member or Affiliated Entity is equitable and not unfairly
discriminatory as it relates to Members who are not Affiliated Members
or Affiliated Entities because any Member may enter into such a
relationship for the purpose of aggregating volume executed on the
Exchange to qualify to reduce their Complex Order Non-Priority Customer
Taker Fee in Select Symbols. Finally, the criteria for assessing the
lower Non-Priority Customer Complex Orders Taker Fee would be uniformly
applied all Members.
    The Exchange's proposal to amend note 8 within Options 7, Section 4
related to Complex Orders to increase the surcharge from $0.05 to $0.12
per contract is reasonable because the Exchange is also increasing the
Complex Order Priority Customer Rebates. The surcharge was originally
adopted to offset the costs of providing the Complex Order Priority
Customer Rebates.\30\ Assessing this surcharge to only those orders
that take liquidity from the market is reasonable because the Exchange
wants to continue to encourage market participation for those
participants that seek to add liquidity on ISE. Additionally, the
Exchange's proposal to assess the surcharge to Non-Priority Customer
Complex Orders that take liquidity from the Complex Order Book when
those orders are executed against Priority Customer Complex Orders is
reasonable because it will more closely align the surcharge to the
Complex Order Priority Customer Rebates.
---------------------------------------------------------------------------

    \30\ See Securities Exchange Act Release No. 82644 (February 6,
2018), 83 FR 6069 (February 12, 2018) (SR-ISE-2018-10) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
the Exchange's Schedule of Fees To Modify Complex Order Fees and
Rebates).
---------------------------------------------------------------------------

    Continuing to exclude Complex Orders executed in the Facilitation
Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism
from the proposed Non-Priority Customer Complex Order surcharge is
reasonable because those auction mechanisms are subject to separate
pricing. The Exchange desires to continue to encourage participation
within those auction mechanisms. Subjecting Exposure Complex Orders and
Exposure Only Complex Orders pursuant to Options 3, Section 14(b)(13)
and (14) to the note 8 surcharge is reasonable because there is no
separate pricing for these order types that are entered into Complex
Exposure within Supplementary .01 to Options 3, Section 14. These order
types are exposed upon entry and may not be entered on the Complex
Order Book. The Exchange believes it is reasonable to subject Exposure
Complex Orders and Exposure Only Complex Orders to the same pricing as
other orders entered into the Complex Order Book which would include
the Non-Priority Customer Complex Order surcharge. With this amendment,
the Exchange seeks to fortify Member participation in the Complex Order
Priority Customer rebate program and incentivize increased Complex
Order volume on the Exchange. Finally, applying note 8 to Taker Fees
for Select Symbols as well as Non-Select Symbols is reasonable because
the Exchange offers Complex Order Priority Customer Rebates for both
Select Symbols and Non-Select Symbols. The surcharge is designed to
offset the costs of providing the

Complex Order Priority Customer Rebates.
    The Exchange's proposal to amend note 8 within Options 7, Section 4
related to Complex Orders to increase the surcharge from $0.05 to $0.12
per contract is equitable and not unfairly discriminatory because the
surcharge would be uniformly applied to all Members who transact Non-
Priority Customer Complex Orders that take liquidity from the Complex
Order Book, including Exposure Complex Orders and Exposure Only Complex
Orders, when executed against Priority Customer Complex Orders,
excluding Complex Orders executed in the Facilitation Mechanism,
Solicited Order Mechanism, and Price Improvement Mechanism.
Additionally, the criteria for assessing the surcharge would be
uniformly applied to all Members for Taker Fees in both Select and Non-
Select Symbols. Continuing to exclude Complex Orders executed in the
Facilitation Mechanism, Solicited Order Mechanism, and Price
Improvement Mechanism from the proposed Non-Priority Customer Complex
Order surcharge is equitable and not unfairly discriminatory because
those auction mechanisms are subject to separate pricing. The Exchange
desires to continue to encourage participation within those auction
mechanisms. Subjecting Exposure Complex Orders and Exposure Only
Complex Orders pursuant to Options 3, Section 14(b)(13) and (14) to the
note 8 surcharge is equitable and not unfairly discriminatory because
there is no separate pricing for these order types that are entered
into Complex Exposure within Supplementary .01 to Options 3, Section
14. These order types are exposed upon entry and may not be entered on
the Complex Order Book. The Exchange believes it is equitable and not
unfairly discriminatory to subject Exposure Complex Orders and Exposure
Only Complex Orders to the same pricing as other orders entered into
the Complex Order Book which would include the Non-Priority Customer
Complex Order surcharge. Any Member may utilize the Facilitation
Mechanism, the Solicited Order Mechanism, and the Price Improvement
Mechanism \31\ as well as Exposure Complex Orders and Exposure Only
Complex Orders.
---------------------------------------------------------------------------

    \31\ The Exchange notes that with respect to the Price
Improvement Mechanism, an Initiating Order may not be a solicited
order for the account of any Exchange Lead Market Maker, SQT, RSQT
or non-streaming Market Maker assigned in the affected series. See
Options 3, Section 13(a)(8).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.
Intermarket Competition
    The Exchange operates in a highly competitive market in which
market participants can readily favor competing venues if they deem fee
levels at a particular venue to be excessive, or rebate opportunities
available at other venues to be more favorable. In such an environment,
the Exchange must continually adjust its fees to remain competitive
with other exchanges. Because competitors are free to modify their own
fees in response, and because market participants may readily adjust
their order routing practices, the Exchange believes that the degree to
which pricing changes in this market may impose any burden on
competition is extremely limited because other options exchanges offer
similar rebate programs as well as maker/taker pricing.\32\
---------------------------------------------------------------------------

    \32\ See MIAX Emerald's Fee Schedule.
---------------------------------------------------------------------------

    Moreover, as noted above, price competition between exchanges is
fierce, with liquidity and market share moving freely between exchanges
in reaction to fee and rebate changes. In sum, if the changes proposed
herein are unattractive to market participants, it is likely that the
Exchange will lose market share as a result. Accordingly, the Exchange
does not believe that the proposed changes will impair the ability of
Members or competing order execution venues to maintain their
competitive standing in the financial markets.
Intramarket Competition
    The Exchange's proposal to amend Complex Order Tiers 6 through 10
of the Priority Customer Rebates for Select Symbols and Non-Select does
not impose an undue burden on competition. Today, Complex Order Rebates
are only offered to Priority Customer Complex Orders. Priority Customer
liquidity is the most sought after liquidity. Priority Customer
liquidity benefits all market participants by providing more trading
opportunities, which attracts Market Makers. An increase in the
activity of these market participants in turn facilitates tighter
spreads, which may cause an additional corresponding increase in order
flow from other market participants. Paying Complex Order Priority
Customer Rebates is consistent with the treatment of Priority Customers
on MIAX Emerald, LLC where orders from Priority Customers are also paid
the highest rebates.\33\
---------------------------------------------------------------------------

    \33\ See MIAX Emerald's Fee Schedule.
---------------------------------------------------------------------------

    The Exchange's proposal to increase the Complex Order Taker Fees
for Non-Select Symbols does not impose an undue burden on competition
because all Non-Priority Customers would uniformly be assessed a $0.98
per contract Complex Order Taker Fee for Non-Select Symbols. Priority
Customers would continue to be assessed no Complex Order Taker Fee for
Non-Select Symbols. Priority Customer liquidity is the most sought
after liquidity. Priority Customer liquidity benefits all market
participants by providing more trading opportunities, which attracts
Market Makers. An increase in the activity of these market participants
in turn facilitates tighter spreads, which may cause an additional
corresponding increase in order flow from other market participants.
    The Exchange's proposal to amend note 3 within Options 7, Section 4
with respect to Complex Order Taker Fees for Select Symbols does not
impose an undue burden on competition because all Non-Priority
Customers would be assessed a lower Complex Order Taker Fee in Select
Symbols when executing against Priority Customer Complex Orders in
Select Symbols entered by an Affiliated Member or Affiliated Entity.
Priority Customers pay no Complex Order Taker Fees in Select Symbols
and, therefore, are not offered the lower fee. Additionally, offering
Members the opportunity to lower their Non-Priority Customer Complex
Order Taker Fee in Select Symbols provided they execute against
Priority Customer Complex Orders in Select Symbols that was entered by
an Affiliated Member or Affiliated Entity does not impose an undue
burden on competition as it relates to Members who are not Affiliated
Members or Affiliated Entities because any Member may enter into such a
relationship for the purpose of aggregating volume executed on the
Exchange to qualify to reduce their Complex Order Non-Priority Customer
Taker Fee in Select Symbols. Finally, the criteria for assessing the
lower Non-Priority Customer Complex Orders Taker Fee would be uniformly
applied all Members.
    The Exchange's proposal to amend note 8 within Options 7, Section 4
related to Complex Orders to increase the surcharge from $0.05 to $0.12
per contract does not impose an undue burden on competition because the
surcharge would be uniformly applied

to all Members who transact Non-Priority Customer Complex Orders that
take liquidity from the Complex Order Book, including Exposure Complex
Orders and Exposure Only Complex Orders, when executed against Priority
Customer Complex Orders, excluding Complex Orders executed in the
Facilitation Mechanism, Solicited Order Mechanism, and Price
Improvement Mechanism. Additionally, the criteria for assessing the
surcharge would be uniformly applied to all Members for Taker Fees in
both Select and Non-Select Symbols. Continuing to exclude Complex
Orders executed in the Facilitation Mechanism, Solicited Order
Mechanism, and Price Improvement Mechanism from the proposed Non-
Priority Customer Complex Order surcharge is equitable and not unfairly
discriminatory because those auction mechanisms are subject to separate
pricing. The Exchange desires to continue to encourage participation
within those auction mechanisms. Subjecting Exposure Complex Orders and
Exposure Only Complex Orders pursuant to Options 3, Section 14(b)(13)
and (14) to the note 8 surcharge is equitable and not unfairly
discriminatory because there is no separate pricing for these order
types that are entered into Complex Exposure within Supplementary .01
to Options 3, Section 14. These order types are exposed upon entry and
may not be entered on the Complex Order Book. The Exchange believes it
is equitable and not unfairly discriminatory to subject Exposure
Complex Orders and Exposure Only Complex Orders to the same pricing as
other orders entered into the Complex Order Book which would include
the Non-Priority Customer Complex Order surcharge. Any Member may
utilize the Facilitation Mechanism, the Solicited Order Mechanism, and
the Price Improvement Mechanism \34\ as well as Exposure Complex Orders
and Exposure Only Complex Orders.
---------------------------------------------------------------------------

    \34\ The Exchange notes that with respect to the Price
Improvement Mechanism, an Initiating Order may not be a solicited
order for the account of any Exchange Lead Market Maker, SQT, RSQT
or non-streaming Market Maker assigned in the affected series. See
Options 3, Section 13(a)(8).
---------------------------------------------------------------------------

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act \35\ and Rule 19b-4(f)(2) \36\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is: (i) necessary or
appropriate in the public interest; (ii) for the protection of
investors; or (iii) otherwise in furtherance of the purposes of the
Act. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \36\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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 protected]. Please include
File Number SR-ISE-2022-29 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISE-2022-29. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-ISE-2022-29 and should be submitted on
or before January 25, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\37\
---------------------------------------------------------------------------

    \37\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-28544 Filed 1-3-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 87, Number 119 (Wednesday, June 22, 2022)]
[Notices]
[Pages 37344-37347]
[FR Doc No: 2022-13259]

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

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2022-0002; Internal Agency Docket No. FEMA-B-2246]

Changes in Flood Hazard Determinations

AGENCY: Federal Emergency Management Agency, Department of Homeland
Security.

ACTION: Notice.

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

SUMMARY: This notice lists communities where the addition or
modification of Base Flood Elevations (BFEs), base flood depths,
Special Flood Hazard Area (SFHA) boundaries or zone designations, or
the regulatory floodway (hereinafter referred to as flood hazard
determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and
where applicable, in the supporting Flood Insurance Study (FIS)
reports, prepared by the Federal Emergency Management Agency (FEMA) for
each community, is appropriate because of new scientific or technical
data. The FIRM, and where applicable, portions of the FIS report, have
been revised to reflect these flood hazard determinations through
issuance of a Letter of Map Revision (LOMR), in accordance with Federal
Regulations. The currently effective community number is shown in the
table below and must be used for all new policies and renewals.

DATES: These flood hazard determinations will be finalized on the dates
listed in the table below and revise the FIRM panels and FIS report in
effect prior to this determination for the listed communities.
    From the date of the second publication of notification of these
changes in a newspaper of local circulation, any person has 90 days in
which to request through the community that the Deputy Associate
Administrator for Insurance and Mitigation reconsider the changes. The
flood hazard determination information may be changed during the 90-day
period.

ADDRESSES: The affected communities are listed in the table below.
Revised flood hazard information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA

Map Service Center at https://msc.fema.gov for comparison.
    Submit comments and/or appeals to the Chief Executive Officer of
the community as listed in the table below.

FOR FURTHER INFORMATION CONTACT: Rick Sacbibit, Chief, Engineering
Services Branch, Federal Insurance and Mitigation Administration, FEMA,
400 C Street SW, Washington, DC 20472,<PHONE_NUMBER>, or (email)
[email protected]; or visit the FEMA Mapping and Insurance
eXchange (FMIX) online at https://www.floodmaps.fema.gov/fhm/fmx_main.html.

SUPPLEMENTARY INFORMATION: The specific flood hazard determinations are
not described for each community in this notice. However, the online
location and local community map repository address where the flood
hazard determination information is available for inspection is
provided.
    Any request for reconsideration of flood hazard determinations must
be submitted to the Chief Executive Officer of the community as listed
in the table below.
    The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
    The FIRM and FIS report are the basis of the floodplain management
measures that the community is required either to adopt or to show
evidence of having in effect in order to qualify or remain qualified
for participation in the National Flood Insurance Program (NFIP).
    These flood hazard determinations, together with the floodplain
management criteria required by 44 CFR 60.3, are the minimum that are
required. They should not be construed to mean that the community must
change any existing ordinances that are more stringent in their
floodplain management requirements. The community may at any time enact
stricter requirements of its own or pursuant to policies established by
other Federal, State, or regional entities. The flood hazard
determinations are in accordance with 44 CFR 65.4.
    The affected communities are listed in the following table. Flood
hazard determination information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA Map Service Center at https://msc.fema.gov for
comparison.

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

Michael M. Grimm,
Assistant Administrator for Risk Management, Department of Homeland
Security, Federal Emergency Management Agency.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Chief executive                         Online location of
        State and county           Location and case       officer of         Community map        letter of map       Date of modification   Community
                                          No.               community          repository             revision                                   No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arizona:
    Maricopa....................  City of Surprise     The Honorable Skip  Public Works        https://msc.fema.gov/  Sep. 9, 2022.........       040053
                                   (21-09-1794P).       Hall,Mayor, City    Department,         portal/advanceSearch.
                                                        of Surprise,        Engineering
                                                        16000 North Civic   Development
                                                        Center Plaza,       Services, 16000
                                                        Surprise, AZ        North Civic
                                                        85374.              Center Plaza,
                                                                            Surprise, AZ
                                                                            85374.
    Maricopa....................  Unincorporated       The Honorable Bill  Flood Control       https://msc.fema.gov/  Sep. 9, 2022.........       040037
                                   Areas of Maricopa    Gates, Chair,       District of         portal/advanceSearch.
                                   County (21-09-       Board of            Maricopa County,
                                   1794P).              Supervisors         2801 West Durango
                                                        Maricopa County,    Street, Phoenix,
                                                        301 West            AZ 85009.
                                                        Jefferson Street,
                                                        10th Floor,
                                                        Phoenix, AZ 85003.
    Santa Cruz..................  Unincorporated       The Honorable       Santa Cruz County   https://msc.fema.gov/  Sep. 6, 2022.........       040090
                                   Areas of Santa       Manuel Ruiz,        Flood Control       portal/advanceSearch.
                                   Cruz County (21-09-  Chair, Board of     District,
                                   1881P).              Supervisors,        Gabilondo-
                                                        Santa Cruz          Zehentner
                                                        County, 2150        Building, 275 Rio
                                                        North Congress      Rico Drive, Rio
                                                        Street, Suite       Rico, AZ 85648.
                                                        119, Nogales, AZ
                                                        85621.
California:
    Los Angeles.................  Unincorporated       The Honorable       Los Angeles County  https://msc.fema.gov/  Sep. 6, 2022.........       065043
                                   Areas of Los         Holly J.            Public Works        portal/advanceSearch.
                                   Angeles County (21-  Mitchell, Chair,    Headquarters,
                                   09-0650P).           Board of            Watershed
                                                        Supervisors, Los    Management
                                                        Angeles County,     Division, 900
                                                        500 West Temple     South Fremont
                                                        Street, Room 866,   Avenue, Alhambra,
                                                        Los Angeles, CA     CA 91803.
                                                        90012.
    Riverside...................  City of Calimesa     The Honorable       Planning            https://msc.fema.gov/  Aug. 8, 2022.........       060740
                                   (21-09-0875P).       William             Department, 908     portal/advanceSearch.
                                                        Davis,Mayor, City   Park Avenue,
                                                        of Calimesa, 908    Calimesa, CA
                                                        Park Avenue,        92320.
                                                        Calimesa, CA
                                                        92320.
    Riverside...................  City of Desert Hot   The Honorable       Planning            https://msc.fema.gov/  Sep. 23, 2022........       060251
                                   Springs (21-09-      Scott Matas,        Department, 65950   portal/advanceSearch.
                                   1924P).              Mayor, City of      Pierson
                                                        Desert Hot          Boulevard, Desert
                                                        Springs, 11999      Hot Springs, CA
                                                        Palm Drive,         92240.
                                                        Desert Hot
                                                        Springs, CA 92240.
    Riverside...................  Unincorporated       The Honorable Jeff  Riverside County    https://msc.fema.gov/  Sep. 23, 2022........       060245
                                   Areas of Riverside   Hewitt, Chair,      Flood Control and   portal/advanceSearch.
                                   County (21-09-       Board of            Water
                                   1924P).              Supervisors,        Conservation
                                                        Riverside County,   District, 1995
                                                        4080 Lemon          Market Street,
                                                        Street,5th Floor,   Riverside, CA
                                                        Riverside, CA       92501.
                                                        92501.

    Ventura.....................  City of Oxnard (22-  The Honorable John  Development         https://msc.fema.gov/  Sep. 6, 2022.........       060417
                                   09-0194P).           C. Zaragoza,        Services Support    portal/advanceSearch.
                                                        Mayor, City of      Division, Service
                                                        Oxnard, 300 West    Center, 214 South
                                                        3rd Street,         C Street, Oxnard,
                                                        Oxnard, CA 93030.   CA 93030.
    Ventura.....................  Unincorporated       The Honorable       Ventura County      https://msc.fema.gov/  Sep. 6, 2022.........       060413
                                   Areas of Ventura     Carmen Ramirez,     Public Works        portal/advanceSearch.
                                   County (22-09-       Chair, Board of     Agency, 800 South
                                   0194P).              Supervisors,        Victoria Avenue,
                                                        Ventura County,     Ventura, CA 93009.
                                                        800 South
                                                        Victoria Avenue,
                                                        Ventura, CA 93009.
Idaho: Ada......................  City of Boise (21-   The Honorable       City Hall, 150      https://msc.fema.gov/  Sep. 14, 2022........       160002
                                   10-1267P).           Lauren McLean,      North Capitol       portal/advanceSearch.
                                                        Mayor, City of      Boulevard, Boise,
                                                        Boise, P.O. Box     ID 83701.
                                                        500, Boise, ID
                                                        83701.
Florida: St. Johns..............  Unincorporated       Chair Henry Dean,   St. Johns County    https://msc.fema.gov/  Sep. 13, 2022........       125147
                                   Areas of St. Johns   St. Johns County    Administration      portal/advanceSearch.
                                   County Florida (21-  Board of County     Building, 4020
                                   04-5482P).           Commissioners,      Lewis Speedway,
                                                        500 San Sebastian   St. Augustine, FL
                                                        View, St.           32084.
                                                        Augustine, FL
                                                        32084.
Idaho: Kootenai.................  Unincorporated       Chair Chris         Kootenai County     https://msc.fema.gov/  Sep. 14, 2022........       160076
                                   Areas of Kootenai    Fillios,            Assessors           portal/advanceSearch.
                                   County (21-10-       Commissioner        Department,
                                   0970P).              District 2,         Kootenai County
                                                        Kootenai County,    Court House, 451
                                                        451 Government      Government Way,
                                                        Way, Coeur          Coeur d'Alene, ID
                                                        d'Alene, ID 83816.  83816.
Illinois: Will..................  Village of           The Honorable John  Village Hall,       https://msc.fema.gov/  Sep. 7, 2022.........       170771
                                   Plainfield (22-05-   F.                  24401 West          portal/advanceSearch.
                                   0786P).              Argoudelis,Villag   Lockport Street,
                                                        e President,        Plainfield, IL
                                                        Village of          60544.
                                                        Plainfield, 24401
                                                        West Lockport
                                                        Street,
                                                        Plainfield, IL
                                                        60544.
Indiana: Tippecanoe.............  Unincorporated       Commissioner Tom    Tippecanoe County   https://msc.fema.gov/  Sep. 13, 2022........       180428
                                   Areas of             Murtaugh, Member,   Office, 20 North    portal/advanceSearch.
                                   Tippecanoe County    Tippecanoe County   3rd Street,
                                   (21-05-3329P).       Board of            Lafayette, IN
                                                        Commissioners, 20   47901.
                                                        North 3rd Street,
                                                        1st
                                                        Floor,Lafayette,
                                                        IN 47901.
Kansas: Johnson.................  City of Mission (21- Administrator       City Hall, 6090     https://msc.fema.gov/  Sep. 14, 2022........       200170
                                   07-1200P).           Laura Smith, City   Woodson             portal/advanceSearch.
                                                        of Mission, 6090    Road,Mission, KS
                                                        Woodson Road,       66202.
                                                        Mission, KS 66202.
Nevada: Douglas.................  Unincorporated       The Honorable Mark  Douglas County,     https://msc.fema.gov/  Sep. 8, 2022.........       320008
                                   Areas of Douglas     Gardner, Chair,     Community           portal/advanceSearch.
                                   County (21-09-       Board of            Development, 1594
                                   1466P).              Commissioners,      Esmeralda Avenue,
                                                        Douglas County,     Minden, NV 89423.
                                                        P.O. Box 218,
                                                        Minden, NV 89423.
Ohio: Lucas.....................  City of Toledo (21-  The Honorable Wade  Department of       https://msc.fema.gov/  Sep. 29, 2022........       395373
                                   05-2785P).           Kapszukiewicz,May   Inspection, 1       portal/advanceSearch.
                                                        or, City of         Government
                                                        Toledo, 1           Center, Suite
                                                        Government          1600, Toledo, OH
                                                        Center, 640         43604.
                                                        Jackson Street,
                                                        Toledo, OH 43604.
Oregon: Lane....................  Unincorporated       Commissioner Joe    Lane County,        https://msc.fema.gov/  Aug. 26, 2022........       415591
                                   Areas of Lane        Berney, Lane        Customer Service    portal/advanceSearch.
                                   County (22-10-       County Board of     Center, 3050
                                   0105P).              County              North Delta
                                                        Commissioners,      Highway, Eugene,
                                                        125 East 8th        OR 97408.
                                                        Avenue, Eugene,
                                                        OR 97401.
Texas: Travis...................  City of Austin (21-  The Honorable       Watershed           https://msc.fema.gov/  Sep. 22, 2022........       480624
                                   06-2164P).           Steve Adler,        Engineering         portal/advanceSearch.
                                                        Mayor, City of      Division, 505
                                                        Austin, P.O. Box    Barton Springs
                                                        1088, Austin, TX    Road, 12th Floor,
                                                        78767.              Austin, TX 78704.
Washington:
    King........................  City of Issaquah     The Honorable Mary  City Hall,1775      https://msc.fema.gov/  Sep. 26, 2022........       530079
                                   (21-10-1197P).       Lou Pauly, Mayor,   12th Avenue         portal/advanceSearch.
                                                        City of Issaquah,   Northwest,
                                                        130 East Sunset     Issaquah, WA
                                                        Way, Issaquah, WA   98027.
                                                        98027.
    Pierce......................  City of Puyallup     The Honorable Dean  City Hall,333       https://msc.fema.gov/  Sep. 8, 2022.........       530144
                                   (21-10-0191P).       Johnson,Mayor,      South Meridian,     portal/advanceSearch.
                                                        City of Puyallup,   Puyallup, WA
                                                        City Hall, 333      98371.
                                                        South Meridian,
                                                        Puyallup, WA
                                                        98371.

Wisconsin: Milwaukee............  City of Oak Creek    The Honorable       City Hall, 8640     https://msc.fema.gov/  Aug. 25, 2022........       550279
                                   (21-05-0691P).       Daniel Bukiewicz,   South Howell        portal/advanceSearch.
                                                        Mayor, City of      Avenue, Oak
                                                        Oak Creek, 8040     Creek, WI 53154.
                                                        South 6th Street,
                                                        Oak Creek, WI
                                                        53154.
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[FR Doc. 2022-13259 Filed 6-21-22; 8:45 am]
BILLING CODE 9110-12-P


[Federal Register Volume 83, Number 51 (Thursday, March 15, 2018)]
[Rules and Regulations]
[Pages 11418-11420]
[FR Doc No: 2018-05293]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2017-0509; FRL-9975-38-Region 3]

Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants; City of Philadelphia; Control of
Emissions From Existing Sewage Sludge Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to notify the public that it has
received a negative declaration for sewage sludge incineration (SSI)
units within the City of Philadelphia. This negative declaration
certifies that SSI units subject to the requirements of sections 111(d)
and 129 of the Clean Air Act (CAA) do not exist in Pennsylvania within
the jurisdictional boundaries of the Philadelphia Air Management
Service (AMS). EPA is accepting the negative declaration in accordance
with the requirements of the CAA.

DATES: This rule is effective on April 16, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R03-OAR-2017-0509. All documents in the docket are listed on
the http://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
http://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.

FOR FURTHER INFORMATION CONTACT: Mike Gordon,<PHONE_NUMBER>, or by
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d) and 129 of the CAA require states to submit plans
to control certain pollutants (designated pollutants) at existing solid
waste combustor facilities (designated facilities) whenever standards
of performance have been established under section 111(b) for new
sources of the same type, and EPA has established emission guidelines
(EG) for such existing sources. CAA section 129 directs EPA to
establish standards of performance for new sources and emissions
guidelines for existing sources for each category of solid waste
incineration unit. CAA section 129(a) and (b). EPA also must specify
numerical emissions limitations for particulate matter (total and
fine), opacity (as appropriate), sulfur dioxide, hydrogen chloride,
oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and
dioxins and dibenzofurans. CAA section 129(a)(4).
    On March 21, 2011 (76 FR 15372), EPA promulgated SSI unit new
source performance standards, 40 CFR part 60, subpart LLL, and EG at 40
CFR part 60, subpart MMMM. The designated facilities to which the EG
apply are existing SSI units that: (1) Commenced construction on or
before October 14, 2010; (2) meet the definition of a SSI unit as
defined in 40 CFR 60.5250; and (3) are not exempt under 40 CFR 60.5065.
    Subpart B of 40 CFR part 60 establishes procedures to be followed
and requirements to be met in the development and submission of state
plans for controlling designated pollutants. Also, 40 CFR part 62
provides the procedural framework for the submission of these plans.
When designated facilities are located in a state, the state must then
develop and submit a plan for the control of the designated pollutant.
However, 40 CFR 60.23(b) and 62.06 provide that if there are no
existing sources of the designated pollutant in the state, the state
may submit a letter of certification to that effect (i.e., negative
declaration) in lieu of a plan. The negative declaration exempts the
state from the requirements of subpart B that require the submittal of
a CAA section 111(d)/129 plan.
    On October 26, 2017 (82 FR 49563 and 82 FR 49511), EPA
simultaneously published a notice of proposed rulemaking (NPR) and a
direct final rule (DFR) for the City of Philadelphia approving a
negative declaration from Philadelphia AMS that there are no existing
SSI units subject to the requirements of sections 111(d) and 129 of the
CAA in its respective air pollution control jurisdiction. EPA received
an adverse comment on the rulemaking and withdrew the DFR prior to the
effective date on December 26, 2017 (82 FR 60872). In this final
rulemaking, EPA is responding to the comment submitted on the proposed
approval of the negative declaration and is approving the negative
declaration.

II. State Submittal and EPA Analysis

    Philadelphia AMS has determined that there are no existing SSI
units subject to the requirements of sections 111(d) and 129 of the CAA
in its respective air pollution control jurisdiction. Accordingly,
Philadelphia AMS submitted a negative declaration letter to EPA
certifying this fact on March 28, 2012. The negative declaration letter
and EPA's technical support document for this action are available in
the docket for this rulemaking and are available online at
www.regulations.gov.

III. Public Comments and EPA Responses

    EPA received one adverse comment on the proposed approval of the
negative declaration for SSI units submitted by Philadelphia AMS. All
other comments received were either supportive of or not specific to
this action and thus are not addressed here.
    Comment: The commenter stated that EPA must confirm that no
additional SSI units exist or have been constructed since the time of
Philadelphia's certification letter, citing the amount of time between
receipt of the negative declaration and the proposed approval.
    Response: EPA does not agree with the commenter's assertion that
EPA must ensure that no additional SSI units have been constructed
since Philadelphia AMS submitted the negative declaration in order to
finalize this action. As stated in the technical support document for
the NPR and in the EG for existing SSI units (40 CFR 60,

subpart MMMM), the designated facilities to which the EG apply are SSI
units that: (1) Commenced construction on or before October 14, 2010;
(2) meet the definition of a SSI unit as defined in 40 CFR 60.5250; and
(3) are not exempt under 40 CFR 60.5065. Thus, for EPA approval of
Philadelphia AMS' negative declaration regarding existing SSI,
Philadelphia only needed to assert no SSI units exist that commenced
construction on or before October 14, 2010. Because Philadelphia's
negative declaration was submitted on March 28, 2012--after the October
14, 2010 deadline to be considered an existing SSI unit--there is no
need to revisit the initial determination of Philadelphia AMS that no
existing SSI units exist within the jurisdictional boundaries of the
local air pollution control agency. Prior to Philadelphia's submission,
EPA worked with Philadelphia AMS and reviewed Philadelphia's inventory
of sources to ensure no existing SSI units existed within Philadelphia,
and the commenter has not provided any information to the contrary that
would cause EPA to reconsider the assessment of Philadelphia AMS's
negative declaration. EPA's acceptance of Philadelphia's negative
declaration therefore is appropriate. SSI units constructed after the
above cited date (i.e., October 14, 2010) would be considered ``new,''
as opposed to ``existing,'' and therefore would be subject to a
separate rule--40 CFR 60 subpart LLL, ``Standards of Performance for
new Sewage Sludge Incineration Units.'' EPA is therefore finalizing the
negative declaration for existing SSI units in this action.

IV. Final Action

    In this final action, EPA is amending 40 CFR part 62 to reflect
receipt of the negative declaration letter from Philadelphia AMS. EPA
is accepting the negative declaration in accordance with the
requirements of the CAA and 40 CFR 60.23(b) and 62.06.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely notifies the public of EPA receipt of a negative declaration
from an air pollution control agency without any existing SSI units in
their jurisdiction. This action imposes no requirements. Accordingly,
EPA certifies that this rule will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Because this action does not
impose any additional enforceable duty beyond that required by state
law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4). This action also does
not have tribal implications because it will not have a substantial
direct effect on one or more Indian tribes, on the relationship between
the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
tribes, as specified by Executive Order 13175 (65 FR 67249, November 9,
2000). This action also does not have Federalism implications because
it does not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely approves the negative declaration for
existing SSI units from the Philadelphia AMS and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. This action also is not subject to
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because
it is not economically significant.
    With regard to negative declarations for designated facilities
received by EPA from states, EPA's role is to notify the public of the
receipt of such negative declarations and revise 40 CFR part 62
accordingly. In this context, in the absence of a prior existing
requirement for the State to use voluntary consensus standards (VCS),
EPA has no authority to approve or disapprove a CAA section 111(d)/129
plan negative declaration submission for failure to use VCS. It would
thus be inconsistent with applicable law for EPA, when it reviews a CAA
section 111(d)/129 negative declaration, to use VCS in place of a
section 111(d)/129 negative declaration that otherwise satisfies the
provisions of the Clean Air Act. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This action does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 14, 2018. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action approving the negative declaration for SSI units
within the City of Philadelphia may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements, Waste treatment and disposal.

    Dated: February 23, 2018.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 62 is amended as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart NN--Pennsylvania

0
2. Subpart NN is amended by adding a new undesignated centerheading and
Sec.  62.9665 to read as follows:

Emissions From Existing Sewage Sludge Incineration Units

Sec.  62.9665  Identification of plan--negative declaration.

    Letter from the City of Philadelphia, Department of Public Health,
submitted March 28, 2012, certifying that there are no existing sewage
sludge incineration units within the City of Philadelphia, Pennsylvania
that are subject to 40 CFR part 60, subpart MMMM.

[FR Doc. 2018-05293 Filed 3-14-18; 8:45 am]
 BILLING CODE 6560-50-P