[Federal Register Volume 78, Number 221 (Friday, November 15, 2013)]
[Rules and Regulations]
[Pages 68748-68757]
[FR Doc No: 2013-27105]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2009-0189]
RIN 2127-AL13

Federal Motor Vehicle Safety Standards; Designated Seating
Positions

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document completes the agency's response to petitions for
reconsideration of an October 2008 final rule that amended the
definition of the term, ``designated seating position,'' as used in the
Federal motor vehicle safety standards, to facilitate the determination
of which areas within the interior of a vehicle meet that definition.
The final rule made the new definition applicable to vehicles
manufactured on and after September 1, 2010. Previously, the agency
granted petitions requesting one year of additional lead time until the
new definition became applicable, removal the portion of the regulatory
text stating that State tort law requirements are preempted, and
technical corrections. This final rule addresses the remaining issues
raised in the petitions for reconsideration and makes clarifying
changes to the manner in which designated seating positions are
measured. We are also including technical corrections addressing side-
facing seats and longer seating surfaces.

DATES: The effective date of this final rule is December 16, 2013.
    Petitions for reconsideration must be received not later than
December 30, 2013.

ADDRESSES: Petitions must be submitted to: Administrator, National
Highway Traffic Safety Administration, 1200 New Jersey Avenue SE.,
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact
Louis Molino of the NHTSA Office of Crashworthiness Standards by
telephone at<PHONE_NUMBER>, and by fax at<PHONE_NUMBER>.
    For legal issues, you may contact David Jasinski of the NHTSA
Office of Chief Counsel by telephone at<PHONE_NUMBER>, and by fax at
(202) 366-3820.
    You may send mail to both of these officials at the National
Highway Traffic Safety Administration, 1200 New Jersey Avenue SE.,
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Petitions for Reconsideration
III. Analysis of Petitions for Reconsideration
    A. Definition of DSP
    B. Analysis of Safety Problem
    C. Seating Surface Measuring Procedure
    1. Determination of the ``Front Leading Surface''
    2. Determination of Seating Surface Width
    3. Interior Trim at the Seating Surface Outer Edges
    4. Seating Surface Interrupted by Interior Trim
    5. Voids and Seat Separation
    6. H-Point Interruptions
    7. Folding, Removable, and Adjustable Seats
    8. Closely Adjoining Seat Belt Buckles
    D. Calculating the Number of DSPs
    E. Consumer Information Label
    F. SAE J1100
    G. Technical Correction for Side-Facing Seats
IV. Rulemaking Analyses and Notices

I. Background

    On October 8, 2008, NHTSA published in the Federal Register a final
rule (October 2008 final rule) revising the definition of ``designated
seating position'' (DSP), as that term is used in the Federal motor
vehicle safety standards (FMVSS), and providing a calculation procedure
for determining the number of seating positions at a seat location.\1\
The revised definition specifies more clearly the areas within the
interior of a vehicle that are regarded as being designated seating
positions for trucks, multipurpose passenger vehicles, passenger cars,
and buses. The rule also established a calculation procedure for
determining the number of DSPs at a seat location for trucks and
multipurpose passenger vehicles with a gross vehicle weight rating less
than 4,536 kilograms (10,000 pounds), passenger cars, and buses.
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    \1\ 73 FR 58887 (Oct. 8, 2008) (Docket No. NHTSA-2008-0059).
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    The designation of a seating position has important safety
consequences. Under the FMVSSs, motor vehicle manufacturers must meet
various performance requirements for each interior location designated
as a seating position. For example, FMVSS No. 208, Occupant Crash
Protection, requires that each DSP in a light vehicle be provided with
the appropriate occupant crash protection system (e.g., air bag, seat
belts or both). Clarity in the definition of DSP is important for the
purposes of that standard because if a vehicle has fewer DSPs than the
number of individuals able to sit in it, one or more of those
individuals would not be protected by seat belts and/or other crash
protection systems.
    In the October 2008 final rule, the agency stated that the revised
definition of ``designated seating position'' added clarity to the
existing definition and was not expected to have a substantial impact
on current vehicle designs. The degree to which seat designs exhibited
the characteristics that gave rise to the agency's concerns had
significantly lessened in the fleet. Manufacturers had either reduced
the width of the seating area to more accurately reflect the intended
occupancy or had provided additional DSPs.
    The October 2008 final rule noted that the inclusion of auxiliary
seats in the definition of ``designated seating position'' and the
newly established procedure for determining the number of DSPs would
require minor redesign of a small number of vehicles. To allow
manufacturers the opportunity to make such redesigns, the agency
provided approximately two years of lead time, such that, on September
1, 2010, all vehicles would need to comply with the new requirements.

II. Petitions for Reconsideration

    We received ten petitions for reconsideration of the October 2008
final rule. The petitioners are SAE International (SAE), BMW North
America (BMW), the Alliance of

Automobile Manufacturers (Alliance), Volkswagen of America
(Volkswagen), the Association of International Automobile Manufacturers
(now Global Automakers), the American Association for Justice (AAJ),
Safety Research and Strategies (SRS), Toyota Motor North America
(Toyota), Mitsubishi Motors R&D of America (Mitsubishi), and Public
Citizen.\2\ Toyota also expressed its support for the Alliance's
petition. The petitions filed by SAE International and Toyota were
styled both as requests for interpretation and, alternatively if the
agency did not agree with their suggested interpretation, as petitions
for reconsideration.
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    \2\ The AAJ petition was jointly filed by the AAJ, the
Association of Trial Lawyers of America--New Jersey, Consumer
Attorneys of California, Consumers for Auto Reliability and Safety,
the New York State Trial Lawyers Association, the Pennsylvania
Association for Justice, and the Washington State Trial Lawyers
Association. Public Citizen's petition was filed jointly by Public
Citizen and the Consumer Federation of America.
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    In a December 23, 2009 final rule,\3\ we provided a partial
response to these petitions. In response to petitions by the Alliance,
Global Automakers, Mitsubishi, and Volkswagen that sought additional
lead time for implementing the new definition of ``designated seating
position'' via a phase-in, we provided one year additional lead time so
that vehicle manufacturers would need to comply with the new rule on
September 1, 2011. In response to petitions from the AAJ and Public
Citizen, we removed language from the text of the DSP definition
stating that any State requirement, including any determination under
State tort law, premised on there being more DSPs than the number
contemplated in the definition, was preempted. We also addressed a
technical error pointed out in petitions from SAE, the Alliance, and
Global Automakers by correcting an erroneous cross reference.
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    \3\ 74 FR 68185.
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III. Analysis of Petitions for Reconsideration

A. Definition of DSP

    Prior to September 1, 2011, the basis for determining whether a
location was considered a designated seating position was whether it
was a plan (i.e., side) view location capable of accommodating a person
at least as large as a 5th percentile adult female if the configuration
and design of the vehicle were such that it was likely to be used as a
seating position while the vehicle is in motion. The October 2008 final
rule replaced this definition with one setting forth a more objective
manner of determining whether a seating surface is considered a DSP. As
defined in the October 2008 final rule, a designated seating position
is a seat location with a seating surface width of at least 330 mm.
    Global Automakers petitioned the agency to replace the 330 mm seat
cushion width specification with the prior language relying on the
capability of accommodating a 5th percentile adult female. Global
Automakers stated that this prior definition would achieve the agency's
intended goal because the formula for counting DSPs would still be
specified in section 571.10.
    The agency is denying the petition to amend section 571.3 to revert
to the prior definition. We continue to believe that the seating
surface width measurement better reflects a location's ability to
accommodate an occupant. We also believe that the new definition is
more consistent with the seating width-based manner for calculating the
number of DSPs in section 571.10.
    Global Automakers did not provide a compelling reason to revert to
the old definition. Its only assertion is that the DSP definition would
explain the agency's concept of a DSP. It is true that the 330 mm
specification for a DSP in the new definition was consistent with the
hip measurement of a 5th percentile adult female. However, as we stated
in the October 2008 final rule, our intent was to provide both a more
objective definition of DSP and a more objective method for determining
the number of DSPs at a seating location.\4\ The current 330 mm
specification better implements the agency's intent. Accordingly, we
are denying Global Automakers' request.
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    \4\ See 73 FR 58888.
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B. Analysis of Safety Problem

    Two petitioners, Public Citizen and SRS, petitioned the agency to
amend the DSP definition, asserting that adequately updated data and
sound scientific techniques were not employed in developing the final
rule.
    Public Citizen expressed its belief that the October 2008 final
rule did not close the regulatory gap regarding the provision of enough
seat belts for the number of designated seating positions. Public
Citizen asserted that the agency has not provided sufficient analysis
to support its assertions that the change in average seat width between
2001 and 2006 has reduced the safety problem. Public Citizen also
stated that the agency did not consider human factors related to
reduced seat belt use rates when a third occupant is seated in a
seating area with two DSPs. Public Citizen claimed that the agency did
not investigate whether the options of a void space or impediment would
discourage occupants from sitting in a space that is not a DSP, nor did
the agency have sufficient data to conclude that the reduction in
seating width has solved the problem of too many occupants sitting in a
seating area.
    SRS also questioned the data that NHTSA used to reach its
conclusions. SRS reiterated concerns expressed in its comments on the
NPRM that the proposed impediment and void specifications were based on
inaccurate data. SRS also questioned the agency's reliance on these
measures in the absence of any scientific human factors analysis of the
potential effectiveness of designs to keep occupants from occupying a
non-DSP.
    NHTSA addressed many of these issues in the October 2008 final
rule. Public Citizen and SRS did not provide any additional information
to the agency nor did they provide any suggested changes to the
requirements. In response to SRS's comments regarding the accuracy of
the data related to the Acura Integra 2-Door, the agency stated:

Safety Research and Strategies also stated that its analysis of the
data indicated that the incident rate of three occupants seated at
the 2-DSP rear seat of the Acura Integra 2-Door was twice as high as
presented in the PRE. The incident rates of the Acura were relied
upon by the agency in developing the impediment countermeasure.
However, it is unclear whether Safety Research and Strategies
evaluated data from the same period as in the agency's analysis.\5\
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    \5\ 73 FR 58889 n.2.

Although SRS characterized the agency's response as inadequate, in
response to SRS's comment, the agency's technical staff reviewed the
data in question for the inaccuracies cited by SRS and concluded that
the agency's original analysis was valid. Our position has not changed.
We do not believe any type of measure is necessary for all rows with
two DSPs. A measure, including an impediment, is only required if a
seating surface area is otherwise wide enough to be considered to have
three DSPs and the manufacturer does not want to add a third seat belt.
The purpose of the measure is to make clear to the consumer that the
seating surface is only intended for two occupants at a time.
    We also believe that Public Citizen's and SRS's expectations for
the effectiveness of measures are overstated. In our Final Regulatory
Evaluation (FRE), we stated that we could not estimate the benefit of
the impediment/

void option.\6\ However, we do believe that impediments and voids could
reduce the risk of crash injuries because passengers would be less
likely to occupy unprotected spaces that are either unavailable
(because of a void between seating positions) or uncomfortable (because
of an impediment).
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    \6\ Docket No. NHTSA-2008-0059-0002.
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    The agency did not conduct a human factors analysis because we
identified a small target population in the FRE. The specifications
proposed in the NPRM and adopted in the final rule were largely based
upon vehicles that were identified as having low fatality rates and
employed an impediment or void in the second row. The agency attributed
the lower fatality rate to the impediment installed in the seating
surface, which deterred overcapacity and misuse. We continue to believe
that a human factors study is not necessary to achieve the aim of the
final rule, which is the identification of DSPs and improved
enforceability.
    Based upon the agency's fleet survey, we did not expect impediments
or voids to be used in many vehicles. However, when used, we believed
their function was to provide consumers with information regarding the
vehicle's seating capacity. It was not the agency's intent for
impediments and voids to act as physical barriers or make it impossible
for a vehicle to be overloaded or misused. In the unlikely event that
an occupant considers sitting on an impediment or void and then cannot
locate a seat belt, we believe that it should be reasonably obvious to
the occupant that the location is not intended for occupancy while the
vehicle is in motion.
    In the FRE, the agency identified a significant decrease in the
seat belt usage rate when comparing incidents in which two passengers
occupied a two-DSP seating area compared to incidents in which three
passengers occupied a two-DSP seating area. We believe this explains a
drop in the seat belt usage rate in these cases from 53.25 percent to
27.67 percent. It is reasonable to assume that this drop in usage rate
was due to the unavailability of a third seat belt in the row and the
possible inability of other passengers to use the seat belts that are
provided because of lack of physical space. We do not believe a human
factors study is necessary to explain this reduced seat belt use rate.
    Public Citizen asserted that second rows of two-door SUVs had two-
DSP second rows. However, this is contrary to the agency's findings.
Most existing vehicles that did not comply with the new requirements
were sport coupes with non-traditional second row bench seats and
third-row seats on SUVs that were intended to have two DSPs, but the
seating surface width was sufficient to have three DSPs. The agency did
not identify any sedans or SUVs with a bench seating surface that had a
second row with two DSPs.
    It remains the view of the agency that the reduced seat size
combined with the presence of only two seat belts will more clearly
indicate to occupants the capacity for which crash protection is
provided. This will prevent manufacturers from including wide bench
seats with only two seat belts unless an impediment or void is used
that will interrupt the seating surface. Although we expect the new
definition and requirements for seat separation to aid in eliminating
uncertainty as to the number of DSPs at a seating location, it is not
practical to require designs that would completely prevent consumers
from attempting to seat more occupants than a row or seat is designed
for.

C. Seating Surface Measuring Procedure

    A number of the petitions raised issues related to the seating
surface measuring procedure. We have grouped these petitions into seven
separate issues, which we address below.
1. Determination of the ``Front Leading Surface''
    SAE requested clarification on how the agency intends to determine
the ``front leading surface.'' The front leading surface is referenced
in determining the boundaries of the area in which the seating surface
width is measured. Specifically, section 571.10(c)(1) provides that the
``seating surface width'' is the maximum width of a seating surface in
a zone extending from a transverse vertical plane 150 mm (5.9 inches)
behind the front leading surface of a seating surface to a transverse
vertical plane 250 mm (9.8 inches) behind that front leading surface,
measured horizontally and longitudinally.
    SAE stated that it interpreted the ``front leading surface'' as the
frontmost edge of the soft trim of the seat cushion, but would not
include the forward edge of unpadded components such as seat shields,
seat adjusters, or adjuster covers. SAE asked for confirmation of its
interpretation.
    We agree with SAE that the ``front leading surface'' would include
soft trim, but would not include the unpadded trim components such as
decorative seat shields, seat adjusters, or adjuster covers. To reflect
this intent, we are amending the language of section 571.10(c) to make
clear that these unpadded trim components would not be considered part
of the seating surface for the purpose of determining the ``front
leading surface.''
    Furthermore, SAE requested the agency's position on how the ``front
leading surface'' would be defined when seats are angled such that the
centerline of the seat is not parallel with the centerline of the
vehicle. SAE asked the agency for confirmation of its interpretation
that an ``X'' plane tangent to the frontmost edge of the seat cushion
is used to measure the 150 mm and 250 mm distance from the front
leading edge.
    With respect to angled seats, the agency did not intend the ``front
leading surface'' to be defined in the manner described by SAE. Rather,
the agency intended the measurement zone to be determined from the
front leading surface of the seat in its ``forward'' facing direction
as defined in S4.3 of FMVSS No. 210, regardless of how the seat may be
oriented in the vehicle. That is, ``forward'' refers to the direction
in which the seat faces, rather than the direction the vehicle faces,
and the measurement zone would be oriented perpendicular to that
direction.
    To reflect this interpretation, we are making an amendment to
section 571.10(c)(1). We believe the effects from this amendment will
be minimal because angled seats are not common.
2. Determination of Seating Surface Width
    Global Automakers and Toyota requested that the agency clarify its
position on how the seating surface width is measured. Global
Automakers raised two specific scenarios. The first scenario involves
seat cushions whose outer edge slopes downward. Global Automakers was
not certain whether the measurement will be made from the outer edge of
the seat cushion (identified in A in Figure 1) or the point where the
top surface of the cushion begins sloping downward toward the side of
the seat (identified as B in Figure 1). Toyota interprets the language
as contemplating the seating surface width measurement to take place
between the vertical planes tangent to the outboard edges of the seat,
as indicated in Figure 2. Toyota stated that if its interpretation is
not correct, it was petitioning the agency to adopt its position.

[GRAPHIC] [TIFF OMITTED] TR15NO13.000

    NHTSA agrees with Toyota's interpretation that the seating surface
width will be determined from the maximum width between the vertical
planes tangent to the outboard edges of the seat. We note that in the
context of seat width measurement, the determination of what is
outboard is made with respect to the seat orientation and may not align
with what is outboard with respect to the vehicle. This measurement
procedure is more objective than the other measurement procedure
suggested by Global Automakers. It is not always clear at what point
the top surface of the seat cushions begin to slope downward to the
side because such surfaces may be rounded or uneven and seat cushions
can be pliable.
3. Interior Trim at the Seating Surface Outer Edges
    Global Automakers also requested that the agency clarify its
interpretation on how the measurement will be taken for seat cushions
whose outer edge extends underneath interior trim. Global Automakers
noted that, in some cases (one of which is illustrated in Figure 3
below), the interior trim interrupts the ``nominal hip room'' using the
SAE H-point machine and that an occupant could not use the seating
surface under the trim.

[GRAPHIC] [TIFF OMITTED] TR15NO13.001

    Although the agency agrees that, in Global Automakers' example,
some portion of the ``seating surface'' may not be a location where an
occupant could actually sit, the amendment to the DSP definition was
designed to make the definition more objective. The new definition is
not based upon non-objective concepts such as the usability of the
seating surface by the occupant or ``nominal hip room.'' Manufacturers
will have to consider the usability of the space in designing the
vehicle; however, the DSP definition and measuring procedure make no
allowance for seating space that is made unusable by the positioning of
trim components such as body-side armrests.
    NHTSA would measure the seating surface width from the plane
indicated in drawing A on Figures 1 and 3 above. NHTSA would only
consider a trim component in the determination of the seating surface
width if the trim makes contact with the top of the seat within the
measurement zone. To make this clearer, we are adding specificity to
the determination of the ``seating surface width.''
    We clarify that the determination of the seating surface width is a
comparative measurement of all possible width measurements within the
measurement zone, given specific constraints. The seating surface width
is the maximum width determined by these comparisons. The constraints
on the measurements are that they are made between vertical planes that
intersect the outboard seat edges, unless the outboard edge is
interrupted by interior trim in contact with the top edge of the seat.
    If the seating surface is interrupted by outboard interior trim in
contact with the top edge of the seat, the vertical plane used in
determining the seating surface width will be the plane that intersects
the most inboard point of contact between the interior trim and the
point of contact with the top of the seat. We have also added a figure
to the regulatory text to illustrate the measurement procedure,
including how trim components making contact with the seating surface
affect the measurement.
4. Seating Surface Interrupted by Interior Trim
    Section 571.10(c)(2)(i)(A) provides an exception to the general
rule that adjacent seating surfaces are considered to form a single,
continuous seating surface. If adjacent seating surfaces are separated
by a fixed trimmed surface that has an unpadded top surface and a width
of not less than 140 mm (5.5 inches), those surfaces will not be
considered to be continuous.
    Public Citizen petitioned the agency to eliminate the option to
separate adjacent seating surfaces with unpadded fixed trim. Public
Citizen stated its belief that, if a seat contains three 330 mm seating
spaces, the manufacturer should be required to have three DSPs with
three seat belt assemblies. Otherwise, Public Citizen argued that
manufacturers should be required to use voids to interrupt a seating
surface.
    We are denying Public Citizen's request to remove the option to
separate seating surfaces with unpadded fixed trim. It is not
practicable in all vehicle types with a bench seat where the seating
cushion width would require three DSPs to provide restraints for three
DSPs, particularly in the case of rear seats of convertibles and sport
coupes. These seats are often close to the vehicle floor, where it
would be impractical or impossible to include a void in the seat
cushion. We also believe that a child seat positioned in the rear seat,
which may extend over the void, could be unstable during use and in a
crash. We are also concerned that, if such seats were required to have
three DSPs, three occupants would not be able to be seated comfortably,
which could reduce seat belt usage at such seating positions. We
believe that allowing manufacturers options for interrupting otherwise
continuous seating surfaces is the best approach to improving the
identification of DSPs by consumers.
    SAE requested clarification on how the agency would consider trim
when measuring the seating surface. SAE provided two illustrated
examples, shown below, and asked for NHTSA's clarification on how
``trim'' would be defined.

[GRAPHIC] [TIFF OMITTED] TR15NO13.002

    In Example 1, SAE described an impediment in the middle of the seat
as an ``embedded convenience system.'' During the seating surface
measurement, the agency would first determine if the impediment meets
the requirements of sections 571.10(c)(2)(i)(A) or 571.10(c)(2)(ii).
SAE stated in its request that it was assumed that the conditions of
section 571.10(c)(2)(ii) were not met by the impediment.\7\ Therefore,
a determination would need to be made as to whether the impediment was
``a fixed trimmed surface whose top surface is unpadded and that has a
width not less than 140 mm (5.5 inches), as measured in each transverse
vertical plane within that measurement zone.'' Such a determination is
impossible to make from the schematic provided and may only be possible
from a physical examination of the impediment. If the impediment
satisfied the criteria, the seating width would end at the impediment's
edge, as shown by dimension ``B'' and ``C.'' However, if the impediment
did not satisfy the criteria, the agency would define the maximum
seating surface width as shown by distance ``A'' in Example 1. We think
this is clear from a reading of section 571.10(c)(2).
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    \7\ We address issues related to section 571.10(c)(2)(ii) in
section III.C.5.
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    SAE asked about the measurement procedure with respect to Example
2. We believe this has been made clear both in the regulation and the
agency's test procedure. Assuming the shaded area is fixed, unpadded
trim surface, the determination of seat surface width depends on
whether the length of ``D'' is less than 140 mm. If ``D'' is less than
140 mm, then seating surfaces ``B'' and ``C'' form a continuous seating
surface and the number of DSPs would be calculated using measurement
``A.'' If ``D'' is at least 140 mm, seating surfaces ``B'' and ``C''
would have sufficient separation such that the number of DSPs for
seating surfaces ``B'' and ``C'' would be calculated separately based
on the length of ``B'' and ``C.''
    SAE also asked whether the use of the word ``unpadded'' meant the
trim had to be uncovered or whether a fabric with minimal foam backing
would be considered unpadded. In the October 2008 final rule, the
agency merely defined the footprint that a trim impediment must cover
to allow manufacturers a degree of flexibility in assigning this
space.\8\ For example, a fixed unpadded trim surface could be used for
a convenience function such as a cup holder, tray, or storage and also
serve to divide seating surfaces.
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    \8\ See 73 FR 58891.
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    The agency did not define the term ``unpadded trim'' or provide
examples in the October 2008 final rule. This was intentional. We did
not want to be unnecessarily design restrictive or prevent
manufacturers from implementing creative solutions that would appeal to
consumers and still provide visual cues regarding the number of DSPs in
a given row. To address SAE's question, we do not intend the term
``unpadded'' to mean that the trim cannot be covered. Unpadded trim,
even if covered with material such as fabric, leather, or vinyl solely
for aesthetic purposes, will be significantly harder than the more
pliable foam and covering used for the seat cushion and would make
sitting on the surface unwelcoming, which would deter its use as a
seating surface.
5. Voids and Seat Separation
    Toyota requested clarification regarding the width measurement of a

void defined in section 571.10(c)(2)(i)(B). That section states that
seating surfaces can be separated by

[a] void whose cross section in each transverse vertical plane
within that measurement zone is a rectangle that is not less than
140 mm (5.5 inches) wide and not less than 140 mm (5.5 inches) deep.
The top edge of the cross section in any such plane is congruent
with the transverse horizontal line that intersects the lowest point
on the portion of the top profile of the seating surfaces that lie
within that plane.

Toyota interpreted this language to mean that the width measurement of
the void is taken between planes tangent to the seat edges on either
side of the void. This means that, where the seat edges adjacent to a
void are sloped downward toward the edge of the seat before turning
downward, the measurement between the seat edges would be made from the
outer edge of the seat rather than from where the seat surface begins
to slope downward.

    This issue has been clarified in NHTSA's test procedure with
illustrated examples. We believe it is clear that the width of the void
area would be measured between the adjacent edges of the two adjacent
seating surfaces.
    SAE also requested clarification regarding voids. It interpreted
section 571.10(c)(2)(i)(B) as applicable to seating rows that have
three or more seats. It reasoned that, when two or more seats are at
least 140 mm apart, section 571.10(c)(2)(iii) would apply, which
relates specifically to the seat cushion separation requirement for
outboard seats. SAE asked for clarification on how NHTSA would
interpret two adjacent seating surfaces that are not separated by 140
mm.
    We do not agree with SAE's interpretation of the applicability of
section 571.10(c)(2)(i)(B). The applicability of section
571.10(c)(2)(i)(B) is not limited to rows with certain numbers of DSPs.
Rather, we anticipate that seating surfaces with ``voids'' would
generally be used by a manufacturer when otherwise there would be a
single seating surface that would require more DSPs than the
manufacturer intends. In contrast, the seat cushion separation in
section 571.10(c)(2)(iii) only applies to adjacent outboard seating
surfaces and does not limit the measurement zone. However, when
adjacent seating surfaces are not separated by 140 mm, the agency would
consider the seating surface between the two seats to be continuous. We
believe this issue has been addressed by specific examples in the
agency's test procedure.
6. H-Point Interruptions
    SAE and Toyota requested clarification of section 571.10(c)(2)(ii)
as it applies to interrupting the H-point between two adjacent DSPs.
SAE expressed uncertainty as to whether the agency intended that the
interruption be at the location of the H-point or within a larger area
such as the 101 mm height or 76 mm fore-aft distance of the hip room
zone. We believe the regulatory text is clear that the actual location
of the H-point must be interrupted by interior trim. This was further
illustrated in the agency's test procedure, which was published after
we received SAE's request for clarification.
    Toyota interpreted the measurement procedure as using the two
outboard seating position H-points to determine the ``X'' plane
location. We agree with Toyota that we would use the outboard DSPs to
determine the ``X'' plane location. However, we would also define the
H-point for any adjacent DSPs, even if they are not both outboard. To
clarify this, we are amending section 571.10(c)(2)(ii). Furthermore,
the H-point for adjacent DSPs may not necessarily fall on the same
plane, or even planes that pass through each other. In such a case,
interior trim can interrupt the ``X'' plane if it interrupts the ``X''
planes of both adjacent seating positions.
7. Folding, Removable, and Adjustable Seats
    SAE requested that the agency clarify the applicability of section
571.10(c)(3), which specifies the manner in which folding, removable,
and adjustable seats are considered. This section provides that
folding, removable, and adjustable seats are measured in the
configuration that results in the single largest maximum seating
surface width.
    First, SAE questioned what effect folding or removable seats have
on the seating surface width. That is, SAE noted that when such seats
are folded or removed, manufacturers do not intend for people to sit on
the back of the seat or in the area where the seat previously occupied.
The agency's intent, with respect to seats that are designed to fold or
be removed from the vehicle, such as seats in the second or third row
of minivans or sport utility vehicles, was that the seats be configured
such that the maximum possible seating surface width is measured for
that row when measuring seating surface width.
    Second, SAE noted that seats that adjust backwards and forwards or
up and down do not cause the seat cushion itself to become wider. SAE
asked what range, including seat rotation, in the case of swiveling
seats, to take into account when measuring surface width. We recognize
that adjusting split bench seats or seats that can slide, depending on
how the seats are positioned, may result in changes to the total
seating surface width, and consequently may alter the calculated number
of DSPs. When adjusting seat positions that may result in changing the
number of DSPs, as with folding seats, we would determine the number of
DSPs by adjusting the seats in a manner that produces the maximum
number of DSPs. With respect to seats that adjust up and down, we note
that the height of the seat is not taken into account.
    Third, SAE suggested that, if NHTSA intends to use section
571.10(c)(3) to determine whether a seat is adjacent, the language
would be better placed within the list specified under paragraph (c)(2)
of that section. We disagree. Paragraph (c)(2) states the general rule
that adjacent seating surfaces are considered to be a single,
continuous seating surface and then lists three exceptions. The
language in paragraph (c)(3) sets forth the configuration of certain
types of seats, but does not itself define when a seating surface is
(or is not) a continuous seating surface. Thus, we believe it is better
to separate the rules for considering folding and adjustable seats from
the exceptions stated in paragraph (c)(2).
8. Closely Adjoining Seat Belt Buckles
    BMW petitioned the agency to allow two ``closely adjoining'' seat
belt buckles at the center of a seating row with a seating surface
width of less than 1,200 mm to be considered a seating surface with two
DSPs. Under section 571.10, as currently written, such a seating
surface, if at least 1050 mm, would have three DSPs. BMW reasoned that
such closely adjoining seat belt buckles, which are raised from the
surface of the seat, would serve as a visual cue and an impediment to
using the area in between as a seat.
    We are denying BMW's request. Although it is possible that
adjoining seat belt buckles may provide a visual cue to some occupants
as to what is or is not a DSP, BMW provided no data to establish the
validity of this assumption. We are also not convinced that adjacent
seat belt buckles will provide an impediment to seating, as suggested
by BMW. Therefore, we do not believe that adopting BMW's suggested
language will solve the safety problem that the new DSP definition was
intended to resolve. In the October 2008 final rule, we noted that the
agency received a

complaint regarding the 2-door 2001 Ford Explorer, where consumers had
believed the rear seating was sufficient for three people, even though
there were only two DSPs and, consequently, two seat belt buckles.\9\
The seating surface width of the 2001 Ford Explorer is 1,270 mm, which
is only 70 mm more than the maximum seating surface width that BMW
proposes to allow. It is reasonable to believe that a situation similar
to the 2001 Ford Explorer could occur again if NHTSA adopts BMW's
suggested regulatory text.
---------------------------------------------------------------------------

    \9\ See 73 FR 58889.
---------------------------------------------------------------------------

D. Calculating the Number of DSPs

    The new procedure for calculating the number of DSPs uses one of
two calculations depending on the overall seating surface width. For
adjacent seats with a continuous seating surface with a width less than
1,400 mm, the seating surface width is divided by 350 mm and rounded
down to the nearest whole number to determine the number of DSPs. For
adjacent seats with a continuous seating surface width of 1,400 mm or
more, the measured surface is divided by 450 mm and rounded down to the
nearest whole number.
    Volkswagen questioned the use of the 350 mm divisor because the
petitioner stated that the value is inconsistent with the prior DSP
definition and manufacturer design parameters. The prior definition of
designated seating position stated that seats with more than 127 cm
(1,270 mm) of hip room shall not have less than three DSPs. Volkswagen
reasoned that, applying this width to the new DSP definition, a divisor
of 423 mm (1,270 mm divided by 3) would be appropriate. Volkswagen also
stated that the design program used by many manufacturers provides 354
mm as the ergonomic design value for the 5th percentile female seating
hip room. Volkswagen believes that a divisor in the range of 360 to 400
mm should be established for seating surface widths less than 1,400 mm.
    We are denying Volkswagen's petition to change the divisor for
determining the number of DSPs. In the October 2008 final rule, the
agency noted that a survey of the model year 2006 fleet supported the
use of a 350 mm divisor.\10\ The average width of a two-DSP seating
surface location in a vehicle dropped from 1,118 mm in model year 2001
sport-utility vehicles to 979 mm in comparable model year 2006
vehicles. We observed that the reduced seat size more clearly indicated
to occupants the capacity for which crash protection is provided. Based
upon this survey, we continue to believe that a 350 mm divisor is
consistent with existing design practice.
---------------------------------------------------------------------------

    \10\ See 73 FR 58889.
---------------------------------------------------------------------------

    Global Automakers petitioned the agency to correct an anomaly in
the calculation for the number of DSPs in a seating surface width
between 330 and 349 mm. Using the formula for seating surface widths
less than 1,400 mm specified in section 571.10(b)(1), the number of
DSPs for such a seating surface would be zero (330 mm divided by 350
mm, rounded down to the nearest whole number). Global Automakers
believes that the agency intended such seating surfaces to have one
DSP.
    We agree with Global Automakers and are adopting their suggested
regulatory text correction. Although the definition of DSP in section
571.3 states that a DSP is a seating location with a seating surface
width at least 330 mm, the formula for calculating the number of DSPs
for a seating location with a seating surface width of at least 330 mm,
but less than 350 mm, would produce a value of zero. This was not the
agency's intended result. To correct this anomaly, we are amending
section 571.10(b)(1) to establish a minimum of one DSP.
    We are also making a technical correction to the calculation of the
number of DSPs for seating locations with a seating surface width of
1,400 mm. This issue arose in interpretation requests received by the
agency from Nissan North America, Inc. (Nissan) and Girardin Minibus
(Girardin).\11\ Nissan and Girardin both raised the issue of seating
surfaces longer than 1,400 mm (1,700 mm and 1,778 mm, respectively) and
asked NHTSA to confirm that such a seating surface could have four
DSPs. Using the formula set forth in section 571.10(b)(2), the seating
surfaces would have three DSPs.\12\
---------------------------------------------------------------------------

    \11\ NHTSA's response to these interpretation requests can be
found at http://isearch.nhtsa.gov/files/09-003169%20nissan.draft.dj.aug20.htm and http://isearch.nhtsa.gov/files/09-000724%20fortin.draft.dj.aug20.htm.
    \12\ A seating surface width of at least 1,800 mm would be
required to have four DSPs.
---------------------------------------------------------------------------

    In response, the agency noted that the definition of ``designated
seating position'' was changed because of a concern that, in certain
situations, the number of people occupying a seating surface area
exceeded the number of DSPs for that area. Particularly, the agency was
concerned with seating surfaces that could accommodate three people,
but had only two DSPs. Nissan and Girardin put forward a scenario in
the opposite direction, a scenario in which a manufacturer wants to
designate more DSPs than the number required by the formula in section
571.10(b) and where the seating area is specifically designed for that
greater number of occupants. We stated that it was not our intent to
limit manufacturers from designating more DSPs than specified by the
formula in section 571.10(b)(2). Moreover, we noted that the data do
not demonstrate a problem with four people occupying a seat with three
DSPs.\13\ The agency chose the 450 mm divisor for such seats based on
the width typically used by seating manufacturers.
---------------------------------------------------------------------------

    \13\ See 73 FR 58892.
---------------------------------------------------------------------------

    In light of the issue raised by Nissan and Girardin, we are
clarifying that the calculation procedure in section 571.10(b)(2) for
seating surfaces of 1,400 mm or more is intended to be a minimum and
manufacturers can provide more DSPs than the number calculated by the
formula for these longer seating surfaces.

E. Consumer Information Label

    Public Citizen petitioned the agency to require labeling of non-DSP
locations, such as voids separating adjacent DSPs, to reflect that the
location is not a seat and that sitting in the location while the
vehicle is in motion is dangerous. Public Citizen believes that the
label would provide a clear and unambiguous indication that such an
area is not a seat.
    We are denying Public Citizen's request. Although we agree that the
labeling of non-DSP locations is consistent with the agency's intent of
providing visual cues that a non-DSP location should not be used as a
seat, we believe that this suggestion is outside of the scope of this
rulemaking procedure. We did not propose labels as a countermeasure in
the NPRM and did not seek public comment on the use of labels.
    In the October 2008 final rule, we discussed an option in FMVSS No.
207, Seating Systems, that allows manufacturers of motor homes to place
a label on a seating location that is not to be used while the vehicle
is in motion, instead of identifying the seating location as a DSP and
installing a seat belt. The Recreational Vehicle Industry Association
had expressed its concern that the agency's NPRM had proposed
eliminating this option.
    We believe that the labeling of non-DSP locations for passenger
vehicles is different because the FMVSS No. 207 option for labeling
applies to actual seats and chairs intended to be used as such by
occupants, albeit when the vehicle is not in motion. In the case of
light vehicles, we believe that the

locations in which one of the agency's specified impediment
countermeasures is used would be locations that would not comfortably
seat an occupant.

F. SAE J1100

    SAE stated that it would like to include new definitions and
dimensions related to the October 2008 final rule in the newest version
of SAE J1100--Motor Vehicle Dimensions. In addition, SAE stated that it
would like SAE J1100 to be consistent with the agency's intentions
regarding the new DSP definition. SAE created draft definitions of
``seating surface'' and ``seating surface width'' and requested that
the agency express its agreement with these definitions. We believe our
response to the specific concerns and questions raised by SAE and other
petitioners and information in the agency's published test procedure
offer the guidance SAE seeks on the definitions of ``seating surface''
and ``seating surface width.'' In the event that SAE desires NHTSA's
interpretation regarding specific examples, SAE can request the
agency's interpretation.

G. Technical Correction for Side-Facing Seats

    The revised DSP definition eliminated the exclusion of auxiliary
seat accommodations such as temporary or folding jump seats. In the
October 2008 final rule, we amended the test procedure in S5 of FMVSS
No. 210, Seat Belt Assembly Anchorages, to specify that, for side-
facing seats, the specified force would be applied in the direction
that the seat faces in a vertical plane perpendicular to the
longitudinal centerline of the vehicle. However, we did not amend the
strength requirement itself to remove the exception for side-facing
seats. We were clear in both the NPRM and final rule that side-facing
seats would need to comply with the seat belt anchorage requirements of
FMVSS No. 210.\14\ We are including in this response a technical
correction to S4.2.1 and S4.2.2 of FMVSS No. 210 to correct this
oversight.
---------------------------------------------------------------------------

    \14\ See 70 FR 36097-98; 73 FR 58892-93.
---------------------------------------------------------------------------

IV. Rulemaking Analyses and Notices

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures

    The agency has considered the impact of this rulemaking action
under Executive Orders 12866 and 13563 and the DOT's regulatory
policies and procedures. This action was not reviewed by the Office of
Management and Budget under Executive Order 12866. The agency has
considered the impact of this action under the Department of
Transportation's regulatory policies and procedures (44 FR 11034;
February 26, 1979), and has determined that it is not ``significant''
under them.
    This action completes the agency's response to petitions for
reconsideration of the October 2008 final rule amending the definition
of ``designated seating position.'' This final rule merely clarifies
existing regulatory text to be more clear and consistent with the
agency's intention. Today's action will not have any cost impacts for
vehicle manufacturers. This action will not have any safety impacts.

B. Privacy Act

    Anyone is able to search the electronic form of all documents
received into any of our dockets by the name of the individual
submitting the document (or signing the document, if submitted on
behalf of an association, business, labor union, etc.). You may review
DOT's complete Privacy Act Statement in the Federal Register published
on April 11, 2000 (65 FR 19477-78) or you may visit http://docketsinfo.dot.gov/.

C. Other Rulemaking Analyses and Notices

    In the October 2008 final rule and in the December 2009 final rule
providing a partial response to the petitions for reconsideration, the
agency discussed relevant requirements related to the Regulatory
Flexibility Act, Executive Order 13132 (Federalism),\15\ Civil Justice
Reform, the National Environmental Policy Act, the Paperwork Reduction
Act, the National Technology Transfer and Advancement Act, and
Executive Order 13045 (Protection of Children from Environmental Health
and Safety Risks). As today's final rule merely clarifies regulatory
text to reflect the agency's intent in the October 2008 final rule, it
will not have any effect on the agency's analyses in those areas.
---------------------------------------------------------------------------

    \15\ The issue of preemption was addressed in the preamble of
the December 2009 final rule. See 74 FR 68187-89.
---------------------------------------------------------------------------

List of Subjects in 49 CFR Parts 571

    Imports, Motor vehicle safety, Reporting and recordkeeping
requirements, Tires.

    In consideration of the foregoing, NHTSA amends 49 CFR part 571 as
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of Title 49 continues to read as
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.95.

0
2. In Sec.  571.10, revise paragraphs (b)(1), (b)(2), (c)(1), and
(c)(2)(ii) and add paragraphs (c)(1)(i) through (iii) and Figure 1 to
read as follows:

Sec.  571.10  Designation of seating positions.

* * * * *
    (b) * * *
    (1) For seat locations with a seating surface width, as described
in paragraph (c), of less than 1400 mm (55.2 inches): N = The greater
of 1 or [seating surface width (in mm)/350] rounded down to the nearest
whole number;
    (2) For seat locations with a seating surface width, as described
in paragraph (c), greater than or equal to 1400 mm (55.2 inches): N =
No less than [seating surface width (in mm)/350] rounded down to the
nearest whole number.
    (c) * * *
    (1) As used in this section, ``seating surface'' only includes the
seat cushion and soft trim and excludes unpadded trim components such
as a decorative seat shield, seat adjusters, or adjuster covers. As
used in paragraphs (c)(1)(ii) and (iii) of this section, ``outboard''
and ``inboard'' are determined with respect to the measurement zone
established in paragraph (c)(1)(i) of this section. As used in this
section, ``seating surface width'' is the maximum horizontal width of a
seating surface determined by the following procedure:
    (i) Establish a measurement zone bounded by two vertical planes
oriented perpendicular to the direction the seat is facing. One is
located 150 mm (5.9 inches) behind the front leading surface of the
seat and the other is located 250 mm (9.8 inches) behind the front
leading surface of the seat. A measurement location within this zone is
any vertical plane parallel to the planes establishing the boundary of
the zone.
    (ii) For each measurement location within the zone, establish
vertical reference planes parallel to the direction the seat faces that
intersect the most outboard point on each side of the seating surface
at that measurement location. If outboard interior trim contacts the
top surface of the seat cushion, establish another vertical plane
parallel to the direction the seat faces that intersects the most
inboard point of contact between outboard interior trim and the top
surface of the seat cushion.

    (iii) For measurement within the zone, measure horizontally between
and perpendicular to the most inboard vertical reference planes
established in (ii), as shown in Figure 1 (provided for illustration
purposes).
    (2) * * *
    (i) * * *
    (ii) Interior trim interrupts the measurement of the nominal hip
room between adjacent seating surfaces, measured laterally along the
``X'' plane through the H-point. For purposes of this paragraph, the H-
point is located using the SAE three-dimensional H-point machine per
Society of Automotive Engineers (SAE) Surface Vehicle Standard J826,
revised July 1995, ``Devices for Use in Defining and Measuring Vehicle
Seating Accommodation'' (incorporated by reference, see section 571.5)
with the legs and leg weights removed, or
* * * * *
[GRAPHIC] [TIFF OMITTED] TR15NO13.003

0
3. Amend Sec.  571.210 by revising the introductory paragraphs to
S4.2.1 and S4.2.2 to read as follows:

Sec.  571.210  Standard No. 210; Seat belt assembly anchorages.

* * * * *
    S4.2.1 Except as provided in S4.2.5, the anchorages, attachment
hardware, and attachment bolts for any of the following seat belt
assemblies shall withstand a 5,000 pound force when tested in
accordance with S5.1 of this standard:
* * * * *
    S4.2.2 Except as provided in S4.2.5, the anchorages, attachment
hardware, and attachment bolts for any of the following seat belt
assemblies shall withstand a 3,000 pound force applied to the lap belt
portion of the seat belt assembly simultaneously with a 3,000 pound
force applied to the shoulder belt portion of the seat belt assembly,
when tested in accordance with S5.2 of this standard:
* * * * *

    Issued in Washington, DC, on November 5, 2013 under authority
delegated in 49 CFR 1.95.
David L. Strickland,
Administrator.
[FR Doc. 2013-27105 Filed 11-14-13; 8:45 am]
BILLING CODE 4910-59-P


[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Notices]
[Pages 55442-55443]
[FR Doc No: 2023-17478]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 15006-001]

Owyhee Energy Storage, LLC; Notice of Intent To File License
Application, Filing of Pre-Application Document (PAD), Commencement of
ILP Pre-Filing Process and Scoping; Request for Comments on the PAD and
Scoping Document, and Identification of Issues and Associated Study
Requests

    a. Type of Filing: Notice of Intent to File License Application for
an Original License, Commencing Pre-filing Process, and Denial of
Request to Use the Traditional Licensing Process.
    b. Project No.: 15006-001.
    c. Dated Filed: April 14, 2023.
    d. Submitted By: Owyhee Energy Storage, LLC (OES).
    e. Name of Project: Owyhee Pumped Storage Project (Owyhee Project)
    f. Location: On the northeast side of U.S. Bureau of Reclamation's
(Reclamation) Owyhee Reservoir on the Owyhee River approximately 10
miles southwest of Adrian in Malheur County, Oregon. The project would
be located on Federal lands owned and/or administered by Reclamation
and Bureau of Land Management.
    g. Filed Pursuant to: 18 CFR part 5 of the Commission's
regulations.
    h. Applicant Contact: Mr. Matthew Shapiro, rPlus Hydro LLLP, 800
West Main Street, Suite 640, Boise, Idaho 83702; phone:<PHONE_NUMBER>.
    i. FERC Contact: John Matkowski,<PHONE_NUMBER>,
[email protected].
    j. OES filed its Pre-Application Document (PAD) and request to use
the Traditional Licensing Process (TLP) on April 14, 2023. OES
published public notice of its Notice of Intent to file a license
application, PAD, and request to use the TLP on the same day. After
reviewing comments submitted by stakeholders, Commission staff denied
OES's request to use the TLP on June 13, 2023. OES must use the
Integrated Licensing Process to prepare a license application for the
Owyhee Project.
    k. Cooperating agencies: Federal, State, local, and Tribal agencies
with jurisdiction and/or special expertise with respect to
environmental issues that wish to cooperate in the preparation of the
environmental document should follow the instructions for filing such
requests described in item o below. Cooperating agencies should note
the Commission's policy that agencies that cooperate in the preparation
of the environmental document cannot also intervene. See 94 FERC ]
61,076 (2001).
    l. With this notice, we are initiating informal consultation with:
(a) the U.S. Fish and Wildlife Service and/or NOAA Fisheries under
section 7 of the Endangered Species Act and the joint agency
regulations thereunder at 50 CFR part 402; and (b) the Oregon State
Historic Preservation Officer, as required by section 106, National
Historic Preservation Act, and the implementing regulations of the
Advisory Council on Historic Preservation at 36 CFR 800.2.
    m. With this notice, we are designating OES as the Commission's
non-Federal representative for carrying out informal consultation,
pursuant to section 7 of the Endangered Species Act, and section 106 of
the National Historic Preservation Act.
    n. A copy of the PAD is available for review on the Commission's
website (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. For assistance, contact FERC Online
Support at [email protected],<PHONE_NUMBER> (toll free), or
(202) 502-8659 (TTY). A copy of the PAD is also available for public
inspection during normal business hours at the office of rPlus Hydro,
800 W. Main Street, Suite 640, Boise, Idaho 83702.
    You may register online at https://ferconline.ferc.gov/FERCOnline.aspx to be notified via email of new filings and issuances
related to this or other pending projects. For assistance, contact FERC
Online Support.
    The Commission's Office of Public Participation (OPP) supports
meaningful public engagement and participation in Commission
proceedings. OPP can help members of the public, including landowners,
environmental justice communities, Tribal members and others, access
publicly available information and navigate Commission processes. For
public inquiries and assistance with making filings such as
interventions, comments, or requests for rehearing, the public is
encouraged to contact OPP at<PHONE_NUMBER>, or at [email protected].
    o. With this notice, we are soliciting comments on the PAD and
Commission staff's Scoping Document 1 (SD1), as well as study requests.
All comments on the PAD and SD1, and study requests should be sent to
the address above in paragraph h. In addition, all comments on the PAD
and SD1, study requests, requests for cooperating agency status, and
all communications to and from

Commission staff related to the merits of the potential application
must be filed with the Commission.
    The Commission strongly encourages electronic filing. Please file
documents using the Commission's eFiling system at https://ferconline.ferc.gov/FERCOnline.aspx. Commenters can submit brief
comments up to 6,000 characters, without prior registration, using the
eComment system at https://ferconline.ferc.gov/QuickComment.aspx. You
must include your name and contact information at the end of your
comments. For assistance, please contact FERC Online. In lieu of
electronic filing, you may submit a paper copy. Submissions sent via
the U.S. Postal Service must be addressed to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street NE,
Room 1A, Washington, DC 20426. Submissions sent via any other carrier
must be addressed to: Kimberly D. Bose, Secretary, Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
All filings must clearly identify the project name and docket number on
the first page: Owyhee Pumped Storage Project (P-15006-001).
    All filings with the Commission must bear the appropriate heading:
``Comments on Pre-Application Document,'' ``Study Requests,''
``Comments on Scoping Document 1,'' ``Request for Cooperating Agency
Status,'' or ``Communications to and from Commission Staff.'' Any
individual or entity interested in submitting study requests,
commenting on the PAD or SD1, and any agency requesting cooperating
status must do so by October 7, 2023.
    p. Scoping Process
    In accordance with the National Environmental Policy Act (NEPA),
Commission staff will prepare either an environmental assessment (EA)
or an environmental impact statement (EIS) (collectively referred to as
the ``NEPA document''). The NEPA document will consider both site-
specific and cumulative environmental effects, and reasonable
alternatives to the proposed action. The Commission's scoping process
will help determine the required level of analysis and satisfy the NEPA
scoping requirements, irrespective of whether the Commission prepares
an EA or EIS.

Scoping Meetings

    Commission staff will hold two public scoping meetings to receive
input on the scope of the environmental issues that should be analyzed
in the NEPA document. The daytime scoping meeting will focus on
resource agency, Native American Tribes, and non-governmental
organization (NGO) concerns, while the evening scoping meeting will
focus on receiving input from the public. We invite all interested
agencies, Native American Tribes, NGOs, and individuals to attend one
of these meetings to assist us in identifying the scope of
environmental issues that should be analyzed in the NEPA document. The
dates, times and locations of these meetings are as follows:

Daytime Scoping Meeting

Date: Wednesday, September 6, 2023
Time: 2:00 p.m.-4:00 p.m. Mountain Daylight Time (MDT)
Place: Holiday Inn Express & Suites--Ontario Meeting Room
Address: 212 SE 10th St, Ontario, OR 97914

Evening Scoping Meeting

Date: Wednesday, September 6, 2023
Time: 6:00 p.m.-8:00 p.m. MDT
Place: Holiday Inn Express & Suites--Ontario Meeting Room
Address: 212 SE 10th St, Ontario, OR 97914

    Copies of SD1, outlining the subject areas to be addressed in the
environmental document, was mailed to the individuals and entities on
the Commission's mailing list and OES's PAD distribution list. Copies
of SD1 may be viewed on the web at http://www.ferc.gov, using the
``eLibrary'' link. Follow the directions for accessing information in
paragraph n. Based on all oral and written comments, a Scoping Document
2 (SD2) may be issued. SD2 may include a revised process plan and
schedule, as well as a list of issues, based on the scoping process.

Environmental Site Reviews

    The applicant and Commission staff will conduct an environmental
site review of the proposed project. All interested agencies, Native
American Tribes, NGOs, and individuals are invited to attend. All
participants are responsible for their own transportation and must wear
closed-toe shoes/boots for walking in uneven/sloped terrain around the
proposed project area. If you plan to attend the environmental site
review, please contact Matthew Shapiro with rPlus Hydro at (208) 246-
9925, or via email at [email protected], on or before August
25, 2023. If calling to RSVP, stakeholders should provide their name,
phone number, and an email address. The time and location of the
environmental site review is as follows:

Owyhee Project On-Site Environmental Site Review

Date: Thursday, September 7, 2023
Time: 9:30 a.m. to 2:30 p.m. (MDT)
Place: The location to meet for the Environmental Site Review will be
provided to those that RSVP

Meeting Objectives

    At the scoping meetings, Commission staff will: (1) initiate
scoping of the issues; (2) review and discuss existing conditions; (3)
review and discuss existing information and identify preliminary
information and study needs; (4) review and discuss the process plan
and schedule for pre-filing activity that incorporates the time frames
provided for in part 5 of the Commission's regulations and, to the
extent possible, maximizes coordination of Federal, State, and Tribal
permitting and certification processes; and (5) discuss the potential
of any Federal or State agency or Native American Tribe to act as a
cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/
or concerns. Please review the PAD in preparation for the scoping
meetings. Directions on how to obtain a copy of the PAD and SD1 are
included in item n of this document.

Meeting Procedures

    The scoping meetings will be recorded by a court reporter, and all
statements will become part of the Commission's public record for the
project.
    Agencies, Native American Tribes, NGOs, and individuals with
environmental expertise and concerns are encouraged to attend the
meetings and to assist Commission staff in defining and clarifying the
issues to be addressed in the NEPA document.

    Dated: August 8, 2023.
Kimberly D. Bose,
Secretary.
[FR Doc. 2023-17478 Filed 8-14-23; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Notices]
[Pages 67728-67729]
[FR Doc No: 2020-23652]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2615-048]

Brookfield White Pine Hydro, LLC, Merimil Limited Partnership,
Eagle Creek Kennebec Hydro, LLC; Notice of Application Accepted for
Filing and Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Revised Recreation Facilities Management Plan.
    b. Project No: 2615-048.
    c. Date Filed: September 28, 2020.
    d. Applicant: Brookfield White Pine Hydro, LLC, Merimil Limited
Partnership, and Eagle Creek Kennebec Hydro, LLC (licensees).
    e. Name of Project: Brassua Hydroelectric Project.
    f. Location: The project is located on the Moose River in Sumerset
County, ME.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Kyle Murphy, Brookfield Renewable, 150 Main
Street, Lewiston, ME, 04240; telephone<PHONE_NUMBER>; or email
<EMAIL_ADDRESS>    i. FERC Contact: Mark Ivy,<PHONE_NUMBER><EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene, and
protests: November 19, 2020.
    The Commission strongly encourages electronic filing. Please file
comments, motions to intervene, and protests using the Commission's
eFiling system at http://www.ferc.gov/docs-filing/efiling.asp.
Commenters can submit brief comments up to 6,000 characters, without
prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact
information at the end of your comments. For assistance, please contact
FERC Online Support at<EMAIL_ADDRESS>(866) 208-3676 (toll
free), or<PHONE_NUMBER> (TTY). In lieu of electronic filing, you may
submit a paper copy. Submissions sent via the U.S. Postal Service must
be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory
Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Submissions sent via any other carrier must be addressed to: Kimberly
D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins
Avenue, Rockville, Maryland 20852. The first page of any filing should
include the docket number P-2615-048. Comments emailed to Commission
staff are not considered part of the Commission record.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervenor files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency.
    k. Description of Request: The licensees filed a revised Recreation
Facilities Management Plan which incorporates changes required by the
Commission's April 15, 2020 Order Issuing New License and proposes
additional modifications, for Commission approval. The schedule for
recreation monitoring would be modified so that it would occur every
six years beginning in 2021. Additionally, the licensees propose to
provide the recreation related information required by 18 CFR 8.1 via a
local newspaper and on-site signage rather than posting it on a
website.
    l. 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://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 FERC at

<EMAIL_ADDRESS>or call toll-free,<PHONE_NUMBER> or TYY,
(202) 502-8659. Agencies may obtain copies of the application directly
from the applicant.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214, respectively. In determining the appropriate action to take, the
Commission will consider all protests or other comments filed, but only
those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    o. Filing and Service of Documents: Any filing must (1) bear in all
capital letters the title COMMENTS, PROTEST, or MOTION TO INTERVENE as
applicable; (2) set forth in the heading the name of the applicant and
the project number of the application to which the filing responds; (3)
furnish the name, address, and telephone number of the person
commenting, protesting or intervening; and (4) otherwise comply with
the requirements of 18 CFR 385.2001 through 385.2005. All comments,
motions to intervene, or protests must set forth their evidentiary
basis. Any filing made by an intervenor must be accompanied by proof of
service on all persons listed in the service list prepared by the
Commission in this proceeding, in accordance with 18 CFR 385.2010.

    Dated: October 20, 2020.
Kimberly D. Bose,
Secretary.
[FR Doc. 2020-23652 Filed 10-23-20; 8:45 am]
BILLING CODE 6717-01-P


1/ 11/ 01 Concerned Citizen Requests Meeting with SRRD about Washington State SLN Registration of Carbaryl. A concerned citizen from Washington State has requested a meeting with SRRD, tentatively scheduled for January 16th, on the reregistration of carbaryl and its use on oyster beds in Washington State as a FIFRA 24( c) Special Local Need (SLN) registration. The concerned citizen lives on one of the two bays affected by carbaryl spraying and opposes the SLN registration. Concerns include spray drift of carbaryl onto the oyster beds of residents who oppose carbaryl, lethality to nontarget invertebrates such as Dungeness crabs, and the general impact of spraying on the bays' ecosystems. An area tribe, the Shoal Water Tribe, has also expressed concerns about carbaryl use in the bay and in nearby cranberry bogs. The bays' oyster farmers have been spraying carbaryl since 1963 to kill burrowing shrimp, which can loosen sediment on the beds and suffocate oyster larvae or "seed." Estimates by the bays' growers association in 1996 placed the annual value of the local industry at $15 to $30 million. Carbaryl spraying on oyster beds has been controversial within the state and the subject of many studies, including studies of potential impacts on endangered species. The state is now writing a draft NPDES permit for the SLN registration of carbaryl in response to the Talent Decision by the 9th Circuit Court of Appeals. (Tony Britten, 703 308 8179)

1/ 18/ 01 SRRD Meets with Concerned Citizen about Carbaryl SLN Use on WA State Oyster Beds. Carbaryl (brand name SEVIN) is used on oyster beds in two Washington State bays to kill species of burrowing shrimp that loosen sediment and cause loss of oyster crop. A concerned Washington State citizen who opposes this SLN use met with SRRD and requested information, including: (1) any administrative procedures available for aggrieved citizens to request removal of an SLN registration, (2) an explanation why only oysters have a food tolerance when other seafood products from the bays are exposed to carbaryl, and (3) whether states must send EPA new studies that show adverse effects from SLN use. FEAD also met with the citizen to discuss the Talent court decision and a state NPDES permit being issued for the SLN use. The citizen also stated a desire to meet with Aventis, the manufacturer of SEVIN, to discuss concerns about the SLN use. (Tony Britten, 308 8179).


[Federal Register: June 24, 2010 (Volume 75, Number 121)]
[Notices]
[Page 36134-36136]
[DOCID:fr24jn10-87]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62319; File No. SR-ISE-2010-57]

Self-Regulatory Organizations; International Securities Exchange,
LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule
Change Relating to Fees and Rebates for Adding and Removing Liquidity

June 17, 2010.

    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 June 1, 2010, the International Securities Exchange, LLC (the
``ISE'' or ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The ISE is proposing to amend its Schedule of Fees in order to
increase the number of options classes to be included in the Exchange's
current schedule of transaction fees and rebates for adding and
removing liquidity. The text of the proposed rule change is available
on the Exchange's Web site (http://www.ise.com), at the principal
office of the Exchange, at the Commission's Public Reference Room, and
on the Commission's Web site at http://www.sec.gov.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
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 increase liquidity and attract order flow
by amending its transaction fees and rebates for adding and removing
liquidity (``maker/taker fees'').\3\ The Exchange's maker/taker fees
currently apply to the following categories of market participants: (i)
Market Maker; (ii) Market Maker Plus; \4\ (iii) Non-ISE Market Maker;
\5\ (iv) Firm Proprietary; (v) Customer (Professional); \6\ (vi)
Priority Customer,\7\ 100 or more contracts; and (vii) Priority
Customer, less than 100 contracts.\8\
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    \3\ These fees are similar to the ``maker/taker'' fees currently
assessed by NASDAQ OMX PHLX (``PHLX''). PHLX currently charges a fee
for removing liquidity to the following class of market
participants: (i) Customer, (ii) Directed Participant, (iii)
Specialist, ROT, SQT and RSQT, (iv) Firm, (v) Broker-Dealer, and
(vi) Professional. PHLX also provides a rebate for adding liquidity
to the following class of market participants: (i) Customer, (ii)
Directed Participant, (iii) Specialist, ROT, SQT and RSQT, and (iv)
Professional. See Securities Exchange Act Release Nos. 61684 (March
10, 2010), 75 FR 13189 (March 18, 2010); 61932 (April 16, 2010), 75
FR 21375 (April 23, 2010); and 61961 (April 22, 2010), 75 FR 22881
(April 30, 2010).
    \4\ A Market Maker Plus is a market maker who is on the National
Best Bid or National Best Offer 80% of the time in that symbol
during the current trading month for series trading between $0.03
and $5.00 in premium. The Exchange determines whether a market maker
qualifies as a Market Maker Plus at the end of each month by looking
back at each market maker's quoting statistics during that month. If
at the end of the month, a market maker meets the 80% criteria, the
Exchange rebates $0.10 per contract for transactions executed by
that market maker during that month. The Exchange provides market
makers a report on a daily basis with quoting statistics so that
market makers can determine whether or not they are meeting the 80%
criteria. On May 26, 2010, the Exchange submitted a proposed rule
change, SR-ISE-2010-54, to be effective on June 1, 2010, to amend
the qualification standards for market makers to receive the $0.10
per contract rebate. Pursuant to that proposed rule change, a market
maker must be on the National Best Bid or National Best Offer 80% of
the time for series trading between $0.03 and $5.00 in premium in
each of the front two expiration months and 80% of the time for all
series trading between $0.03 and $5.00 in order to receive the
rebate.
    \5\ A Non-ISE Market Maker, or Far Away Market Maker
(``FARMM''), is a market maker as defined in Section 3(a)(38) of the
Securities Exchange Act of 1934, as amended (``Exchange Act''),
registered in the same options class on another options exchange.
    \6\ A Customer (Professional) is a person who is not a broker/
dealer and is not a Priority Customer.
    \7\ A Priority Customer is defined in ISE Rule 100(a)(37A) as 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).
    \8\ The Chicago Board Options Exchange (``CBOE'') currently
makes a similar distinction between large size customer orders that
are fee liable and small size customer orders whose fees are waived.
CBOE currently waives fees for customer orders of 99 contracts or
less in options on exchange-traded funds (``ETFs'') and Holding
Company Depositary Receipts (``HOLDRs'') and charges a transaction
fee for customer orders that exceed 99 contracts. See Securities
Exchange Act Release No. 59892 (May 8, 2009), 74 FR 22790 (May 14,
2009).
---------------------------------------------------------------------------

Current Transaction Charges for Adding and Removing Liquidity
    The Exchange currently assesses a per contract transaction charge
to market participants that remove, or ``take,'' liquidity from the
Exchange in the following 20 options classes: PowerShares QQQ trust
(``QQQQ''), Bank of America Corporation (``BAC''), Citigroup, Inc.
(``C''), Standard and Poor's Depositary Receipts/SPDRs (``SPY''),
iShares Russell 2000 (``IWM''), Financial Select Sector SPDR (``XLF''),
Apple, Inc. (``AAPL''), General Electric Company (``GE''), JPMorgan
Chase & Co. (``JPM''), Intel Corporation (``INTC''), Goldman Sachs
Group, Inc. (``GS''), Research in Motion Limited (``RIMM''), AT&T, Inc.
(``T''), Verizon

Communications, Inc. (``VZ''), United States Natural Gas Fund
(``UNG''), Freeport-McMoRan Copper & Gold, Inc. (``FCX''), Cisco
Systems, Inc. (``CSCO''), Diamonds Trust, Series 1 (``DIA''),
Amazon.com, Inc. (``AMZN'') and United States Steel Corporation
(``X''). The per contract transaction charge depends on the category of
market participant submitting an order or quote to the Exchange that
removes liquidity.\9\ Priority Customer Complex orders, regardless of
size, are not assessed a fee for removing liquidity.
---------------------------------------------------------------------------

    \9\ Although these options classes will no longer be subject to
the tiered market maker transaction fees, the volume from these
options classes will continue to be used in the calculation of the
tiers so that this new pricing does not affect a market maker's fee
in all other names.
---------------------------------------------------------------------------

    The Exchange also currently assesses transaction charges for adding
liquidity in options on QQQQ, BAC, C, SPY, IWM, XLF, AAPL, GE, JPM,
INTC, GS, RIMM, T, VZ, UNG, FCX, CSCO, DIA, AMZN and X. Priority
Customer orders, regardless of size, and Market Maker Plus orders are
not assessed a fee for adding liquidity.
Current Rebates
    In order to promote and encourage liquidity in options classes that
are subject to maker/taker fees, the Exchange currently offers a $0.10
per contract rebate for Market Maker Plus orders sent to the
Exchange.\10\ Further, in order to incentivize members to direct retail
orders to the Exchange, Priority Customer Complex orders, regardless of
size, currently receive a rebate of $0.15 per contract on all legs when
these orders trade with non-customer orders in the Exchange's Complex
Orderbook. Additionally, the Exchange's Facilitation Mechanism has an
auction which allows for participation in a trade by members other than
the member who entered the trade. To incentivize members, the Exchange
currently offers a rebate of $0.15 per contract to contracts that do
not trade with the contra order in the Facilitation Mechanism.
---------------------------------------------------------------------------

    \10\ The concept of incenting market makers with a rebate is not
novel. In 2008, the CBOE established a program for its Hybrid Agency
Liaison whereby it provides a $0.20 per contact rebate to its market
makers provided that at least 80% of the market maker's quotes in a
class during a month are on one side of the national best bid or
offer. Market makers not meeting CBOE's criteria are not eligible to
receive a rebate. See Securities Exchange Act Release No. 57231
(January 30, 2008), 73 FR 6752 (February 5, 2008). The CBOE has
since lowered the criteria from 80% to 60%. See Securities Exchange
Act Release No. 57470 (March 11, 2008), 73 FR 14514 (March 18,
2008).
---------------------------------------------------------------------------

Fee Changes
    The Exchange proposes to add the following 30 options classes to be
included in the Exchange's maker/taker fee schedule: Alcoa Inc.
(``AA''), American International Group, Inc. (``AIG''), American
Express Company (``AXP''), Best Buy Company (``BBY''), Caterpillar,
Inc. (``CAT''), Chesapeake Energy Corporation (``CHK''), Dendreon
Corporation (``DNDN''), iShares MSCI Emerging Markets Index Fund
(``EEM''), iShares MSCI EAFE Index Fund (``EFA''), iShares MSCI Brazil
Index Fund (``EWZ''), Ford Motor Company (``F''), Direxion Shares
Financial Bull (``FAS''), Direxion Shares Financial Bear (``FAZ''),
First Solar, Inc. (``FSLR''), Market Vectors ETF Gold Miners (``GDX''),
SPDR Gold Trust (``GLD''), iShares DJ US Real Estate Index Fund
(``IYR''), MGM Mirage (``MGM''), Morgan Stanley (``MS''), Microsoft
Corporation (``MSFT''), Micron Technology, Inc. (``MU''), Palm, Inc.
(``PALM''), Petroleo Brasileiro S.A. (``PBR''), The Procter & Gamble
Company (``PG''), Potash Corporation of Saskatchewan (``POT''),
Transocean Ltd. (``RIG''), ProShares UltraShort S&P 500 (``SDS''),
iShares Silver Trust (``SLV''), Energy Select Sector SPDR Fund
(``XLE''), and Exxon Mobil Corporation (``XOM'').
Other Fees
     Fees for orders executed in the Exchange's Facilitation,
Solicited Order, Price Improvement and Block Order Mechanisms are for
contracts that are part of the originating or contra order.
     Complex orders executed in the Facilitation and Solicited
Order Mechanisms are charged fees only for the leg of the trade
consisting of the most contracts.
     Payment for Order Flow fees will not be collected on
transactions on QQQQ, BAC, C, SPY, IWM, XLF, AAPL, GE, JPM, INTC, GS,
RIMM, T, VZ, UNG, FCX, CSCO, DIA, AMZN, X, AA, AIG, AXP, BBY, CAT, CHK,
DNDN, EEM, EFA, EWZ, F, FAS, FAZ, FSLR, GDX, GLD, IYR, MGM, MS, MSFT,
MU, PALM, PBR, PG, POT, RIG, SDS, SLV, XLE, and XOM options.\11\
---------------------------------------------------------------------------

    \11\ ISE currently has a payment-for-order-flow (``PFOF'')
program that helps the Exchange's market makers establish PFOF
arrangements with an Electronic Access Member (``EAM'') in exchange
for that EAM preferencing some or all of its order flow to that
market maker. This program is funded through a fee paid by Exchange
market makers for each customer contract they execute, and is
administered by both Primary Market Makers (``PMM'') and Competitive
Market Makers (``CMM''), depending to whom the order is preferenced.
---------------------------------------------------------------------------

     The Cancellation Fee will continue to apply in QQQQ, BAC,
C, SPY, IWM, XLF, AAPL, GE, JPM, INTC, GS, RIMM, T, VZ, UNG, FCX, CSCO,
DIA, AMZN, X, AA, AIG, AXP, BBY, CAT, CHK, DNDN, EEM, EFA, EWZ, F, FAS,
FAZ, FSLR, GDX, GLD, IYR, MGM, MS, MSFT, MU, PALM, PBR, PG, POT, RIG,
SDS, SLV, XLE, and XOM options.\12\
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    \12\ The Exchange assesses a Cancellation Fee of $2.00 to EAMs
that cancel at least 500 orders in a month, for each order
cancellation in excess of the total number of orders such member
executed that month. All orders from the same clearing EAM executed
in the same underlying symbol at the same price within a 300-second
period are aggregated and counted as one executed order for purposes
of this fee. This fee is charged only to customer orders.
---------------------------------------------------------------------------

     The Exchange has a $0.20 per contract fee credit for
members who, pursuant to Supplementary Material .02 to Rule 803,
execute a transaction in the Exchange's flash auction as a response to
orders from persons who are not broker/dealers and who are not Priority
Customers.\13\ For QQQQ, BAC, C, SPY, IWM, XLF, AAPL, GE, JPM, INTC,
GS, RIMM, T, VZ, UNG, FCX, CSCO, DIA, AMZN, X, AA, AIG, AXP, BBY, CAT,
CHK, DNDN, EEM, EFA, EWZ, F, FAS, FAZ, FSLR, GDX, GLD, IYR, MGM, MS,
MSFT, MU, PALM, PBR, PG, POT, RIG, SDS, SLV, XLE, and XOM options, the
Exchange proposes to lower the per contract fee credit for members who
execute a transaction in the Exchange's flash auction as a response to
orders from persons who are not broker/dealers and who are not Priority
Customers to $0.10 per contract.
---------------------------------------------------------------------------

    \13\ See Securities Exchange Act Release No. 61731 (March 18,
2010), 75 FR 14233 (March 24, 2010).
---------------------------------------------------------------------------

     The Exchange has a $0.20 per contract fee for market maker
orders sent to the Exchange by EAMs.\14\ Market maker orders sent to
the Exchange by EAMs will be assessed a fee of $0.25 per contract for
removing liquidity in QQQQ, BAC, C, SPY, IWM, XLF, AAPL, GE, JPM, INTC,
GS, RIMM, T, VZ, UNG, FCX, CSCO, DIA, AMZN, X, AA, AIG, AXP, BBY, CAT,
CHK, DNDN, EEM, EFA, EWZ, F, FAS, FAZ, FSLR, GDX, GLD, IYR, MGM, MS,
MSFT, MU, PALM, PBR, PG, POT, RIG, SDS, SLV, XLE, and XOM options and
$0.10 per contract for adding liquidity in QQQQ, BAC, C, SPY, IWM, XLF,
AAPL, GE, JPM, INTC, GS, RIMM, T, VZ, UNG, FCX, CSCO, DIA, AMZN, X, AA,
AIG, AXP, BBY, CAT, CHK, DNDN, EEM, EFA, EWZ, F, FAS, FAZ, FSLR, GDX,
GLD, IYR, MGM, MS, MSFT, MU, PALM, PBR, PG, POT, RIG, SDS, SLV, XLE,
and XOM options.
---------------------------------------------------------------------------

    \14\ See Securities Exchange Act Release No. 60817 (October 13,
2009), 74 FR 54111 (October 21, 2009).
---------------------------------------------------------------------------

    The Exchange has designated this proposal to be operative on June
1, 2010.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is
the requirement under Section 6(b)(4) that an exchange have an
equitable

allocation of reasonable dues, fees and other charges among its members
and other persons using its facilities. The impact of the proposal upon
the net fees paid by a particular market participant will depend on a
number of variables, the most important of which will be its propensity
to add or remove liquidity in QQQQ, BAC, C, SPY, IWM, XLF, AAPL, GE,
JPM, INTC, GS, RIMM, T, VZ, UNG, FCX, CSCO, DIA, AMZN, X, AA, AIG, AXP,
BBY, CAT, CHK, DNDN, EEM, EFA, EWZ, F, FAS, FAZ, FSLR, GDX, GLD, IYR,
MGM, MS, MSFT, MU, PALM, PBR, PG, POT, RIG, SDS, SLV, XLE, and XOM
options. The Exchange operates in a highly competitive market in which
market participants can readily direct order flow to another exchange
if they deem fee levels at a particular exchange to be excessive. The
Exchange believes that the proposed fees it charges for options
overlying QQQQ, BAC, C, SPY, IWM, XLF, AAPL, GE, JPM, INTC, GS, RIMM,
T, VZ, UNG, FCX, CSCO, DIA, AMZN, X, AA, AIG, AXP, BBY, CAT, CHK, DNDN,
EEM, EFA, EWZ, F, FAS, FAZ, FSLR, GDX, GLD, IYR, MGM, MS, MSFT, MU,
PALM, PBR, PG, POT, RIG, SDS, SLV, XLE, and XOM remain competitive with
fees charged by other exchanges and therefore continue to be reasonable
and equitably allocated to those members that opt to direct orders to
the Exchange rather than to a competing exchange.

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

    The proposed rule change does not impose any burden on competition
that is not necessary or appropriate in furtherance of the purposes of
the Act.

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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

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) of the Act \15\ and Rule 19b-4(f)(2) \16\ thereunder. At any
time within 60 days of the filing of such proposed rule change, the
Commission may summarily abrogate 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.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78s(b)(3)(A).
    \16\ 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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-ISE-2010-57 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISE-2010-57. 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 such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-ISE-2010-57 and should be
submitted on or before July 15, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-15280 Filed 6-23-10; 8:45 am]
BILLING CODE 8010-01-P