[Federal Register Volume 77, Number 115 (Thursday, June 14, 2012)]
[Notices]
[Pages 35727-35729]
[FR Doc No: 2012-14531]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67166; File No. SR-ISE-2012-48]

Self-Regulatory Organizations; International Securities Exchange,
LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule
Change Regarding Rebates for Certain Complex Orders

June 8, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is
hereby given that on June 1, 2012, the International Securities
Exchange, LLC (the ``Exchange'' or the ``ISE'') filed with the
Securities and Exchange Commission (``Commission'') the proposed rule
change as described in Items I and II below, which Items have been
prepared by the Exchange. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The ISE is proposing to make a change to its schedule of fees. 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, and
at the Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of 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 currently assesses per contract transaction fees and
provides rebates to market participants that add or remove liquidity
from the Exchange (``maker/taker fees and rebates'') in a number of
options classes (the ``Select Symbols'').\3\ The Exchange's maker/taker
fees and rebates are applicable to regular and complex orders executed
in the Select Symbols. The Exchange also currently assesses maker/taker
fees and rebates for complex orders in symbols that are in the Penny
Pilot program but are not a Select Symbol (``Non-Select Penny Pilot
Symbols'') \4\ and for complex orders in all symbols that are not in
the Penny Pilot Program (``Non-Penny Pilot Symbols'').\5\ Maker/taker
fees and rebates for complex orders are assessed on the following
order-type categories: ISE Market Maker,\6\ Market Maker Plus,\7\ Firm
Proprietary, Customer (Professional),\8\ Non-ISE Market Maker,\9\ and
Priority Customer.\10\ The Exchange is proposing to increase certain
rebate amounts for complex orders in options on the Select Symbols, the
Non-Select Penny Pilot Symbols, the Non-Penny Pilot Symbols and in
options on one Select Symbol--SPY--which has a distinct rebate amount.
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    \3\ Options classes subject to maker/taker fees and rebates are
identified by their ticker symbol on the Exchange's Schedule of
Fees.
    \4\ See Exchange Act Release No. 65724 (November 10, 2011), 76
FR 71413 (November 17, 2011) (SR-ISE-2011-72).
    \5\ See Exchange Act Release Nos. 66084 (January 3, 2012), 77 FR
1103 (January 9, 2012) (SR-ISE-2011-84); 66392 (February 14, 2012),
77 FR 10016 (February 21, 2012) (SR-ISE-2012-06); and 66961 (May 10,
2012), 77 FR 28914 (May 16, 2012) (SR-ISE-2012-38).
    \6\ The term ``Market Makers'' refers to ``Competitive Market
Makers'' and ``Primary Market Makers'' collectively. See ISE Rule
100(a)(25).
    \7\ A Market Maker Plus is an ISE Market Maker who is on the
National Best Bid or National Best Offer 80% of the time for series
trading between $0.03 and $5.00 (for options whose underlying
stock's previous trading day's last sale price was less than or
equal to $100) and between $0.10 and $5.00 (for options whose
underlying stock's previous trading day's last sale price was
greater than $100) in premium in each of the front two expiration
months and 80% of the time for series trading between $0.03 and
$5.00 (for options whose underlying stock's previous trading day's
last sale price was less than or equal to $100) and between $0.10
and $5.00 (for options whose underlying stock's previous trading
day's last sale price was greater than $100) in premium across all
expiration months in order to receive the rebate. 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. A Market Maker's single best
and single worst overall quoting days each month, on a per symbol
basis, are excluded in calculating whether a Market Maker qualifies
for this rebate, if doing so qualifies a Market Maker for the
rebate. If at the end of the month, a Market Maker meets the
Exchange's stated 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 Exchange's stated criteria.
    \8\ A Customer (Professional) is a person who is not a broker/
dealer and is not a Priority Customer.
    \9\ 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.
    \10\ 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).
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    Specifically, the Exchange now proposes to increase certain rebates
associated with complex order volume tiers. In the Select Symbols, the
Exchange currently provides a base rebate of $0.32 per contract, per
leg, for Priority Customer complex orders when these orders trade with
non-Priority Customer complex orders in the complex order book.
Additionally, Members can earn a higher rebate amount by achieving
certain average daily volume (ADV) thresholds on a month-to-month
basis, as follows: If a Member achieves an ADV of 75,000 Priority
Customer complex order contracts, the rebate amount for such option
contracts is $0.33 per contract per leg; if a Member achieves an ADV of
125,000 Priority Customer complex order contracts, the rebate amount
for such option contracts is $0.34 per contract per leg. The Exchange
now proposes to adopt a new tier for Priority Customer complex order
contracts in the Select Symbols of 250,000 contracts such that if a
Member achieves an ADV of 250,000 Priority Customer complex order
contracts, the rebate amount for such option contracts shall be $0.345
per contract per leg. The highest rebate amount achieved by a Member
for the current calendar month shall apply retroactively to all
Priority Customer complex order contracts that trade with non-Priority
Customer complex orders in the complex order book executed by a Member
during such calendar month.
    In the Non-Select Penny Pilot Symbols, the Exchange currently
provides a base rebate of $0.28 per contract, per leg, for Priority
Customer complex orders when these orders trade with non-Priority
Customer complex orders in the complex order book.

Additionally, Members can earn a higher rebate amount on a month-to-
month basis, as follows: If a Member achieves an ADV of 75,000 Priority
Customer complex order contracts, the rebate amount for such option
contracts is $0.30 per contract per leg; if the Member achieves an ADV
of 125,000 Priority Customer complex order contracts, the rebate amount
for such option contracts is $0.32 per contract per leg. The Exchange
now proposes to adopt a new tier for Priority Customer complex order
contracts in the Non-Select Penny Pilot Symbols of 250,000 contracts
such that if a Member achieves an ADV of 250,000 Priority Customer
complex order contracts, the rebate amount for such option contracts
shall be $0.325 per contract per leg. The highest rebate amount
achieved by a Member for the current calendar month shall apply
retroactively to all Priority Customer complex order contracts that
trade with non-Priority Customer complex orders in the complex order
book executed by a Member during such calendar month.
    In the Non-Penny Pilot Symbols, the Exchange currently provides a
base rebate of $0.57 per contract, per leg, for Priority Customer
complex orders when these orders trade with non-Priority Customer
complex orders in the complex order book. Additionally, Members can
earn a higher rebate amount on a month-to-month basis, as follows: If a
Member achieves an ADV of 75,000 Priority Customer complex order
contracts, the rebate amount for such option contracts is $0.59 per
contract per leg; if the Member achieves an ADV of 125,000 Priority
Customer complex order contracts, the rebate amount for such option
contracts is $0.61 per contract per leg. The Exchange now proposes to
adopt a new tier for Priority Customer complex order contracts in the
Non-Penny Pilot Symbols of 250,000 contracts such that if a Member
achieves an ADV of 250,000 Priority Customer complex order contracts,
the rebate amount for such option contracts shall be $0.615 per
contract per leg. The highest rebate amount achieved by a Member for
the current calendar month shall apply retroactively to all Priority
Customer complex order contracts that trade with non-Priority Customer
complex orders in the complex order book executed by a Member during
such calendar month.
    Finally, for SPY, the Exchange currently provides a base rebate of
$0.33 per contract, per leg, for Priority Customer complex orders when
these orders trade with non-Priority Customer complex orders in the
complex order book. Additionally, Members can earn a higher rebate
amount on a month-to-month basis, as follows: If a Member achieves an
ADV of 75,000 Priority Customer complex order contracts, the rebate
amount for such option contracts is $0.34 per contract per leg; if the
Member achieves an ADV of 125,000 Priority Customer complex order
contracts, the rebate amount for such option contracts is $0.35 per
contract per leg. The Exchange now proposes to adopt a new tier for
Priority Customer complex order contracts in SPY of 250,000 contracts
such that if a Member achieves an ADV of 250,000 Priority Customer
complex order contracts, the rebate amount for such option contracts
shall be $0.355 per contract per leg. The highest rebate amount
achieved by a Member for the current calendar month shall apply
retroactively to all Priority Customer complex order contracts that
trade with non-Priority Customer complex orders in the complex order
book executed by a Member during such calendar month.
    The Exchange is not proposing any other changes in this filing.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Schedule of
Fees is consistent with Section 6(b) of the Exchange Act \11\ in
general, and furthers the objectives of Section 6(b)(4) of the Exchange
Act \12\ in particular, in that it is an equitable allocation of
reasonable dues, fees and other charges among Exchange 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, most important of which will be its propensity to
interact with and respond to certain types of orders.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that it is reasonable and equitable to
provide rebates for Priority Customer complex orders when these orders
trade with Non-Priority Customer complex orders in the complex order
book because paying a rebate would continue to attract additional order
flow to the Exchange and create liquidity in the symbols that are
subject to the rebate, which the Exchange believes ultimately will
benefit all market participants who trade on ISE. The Exchange has
already established a volume-based incentive program, and is now merely
proposing to adopt an additional tier to that program. The Exchange
believes that the proposed rebates are competitive with rebates
provided by other exchanges and are therefore reasonable and equitably
allocated to those members that direct orders to the Exchange rather
than to a competing exchange.
    The complex order pricing employed by the Exchange has proven to be
an effective pricing mechanism and attractive to Exchange participants
and their customers. The Exchange believes that increasing its complex
order rebates will attract additional complex order business.
    The Exchange further believes that the Exchange's maker/taker fees
and rebates are not unfairly discriminatory because those structures
are consistent with fee structures that exist today at other options
exchanges. Additionally, the Exchange believes that the proposed
rebates are fair, equitable and not unfairly discriminatory because the
proposed rebates are consistent with price differentiation that exists
today at other option exchanges. The Exchange operates in a highly
competitive market in which market participants can readily direct
order flow to another exchange if they deem rebate levels at a
particular exchange to be low. With this proposed rebate change, the
Exchange believes it remains an attractive venue for market
participants to trade complex orders.

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 Exchange 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)(A)(ii) of the Exchange Act.\13\ At any time within 60 days of
the filing of such proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Exchange Act. If the

Commission takes such action, the Commission shall institute
proceedings to determine whether the proposed rule should be approved
or disapproved.
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    \13\ 15 U.S.C. 78s(b)(3)(A)(ii).
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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 Exchange Act. Comments may be submitted
by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-ISE-2012-48 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISE-2012-48. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-ISE-2012-48 and should be
submitted on or before July 5, 2012.
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    \14\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-14531 Filed 6-13-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: June 2, 2010 (Volume 75, Number 105)]
[Rules and Regulations]
[Page 30690-30693]
[DOCID:fr02jn10-5]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 406

[Docket No. FAA-2009-1240; Amendment No. 406-6]
RIN 2120-AJ63

Civil Penalty Inflation Adjustment for Commercial Space
Adjudications

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule.

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SUMMARY: This final rule brings Federal Aviation Administration
commercial space transportation regulations into compliance with the
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by
the Debt Collection Improvement Act of 1996. The rule makes mandatory
inflation-based adjustments to the maximum civil penalty contained in
14 CFR part 406 authorized for violations of the Commercial Space
Launch Act of 1984, as codified at 49 U.S.C. subtitle IX, ch. 701,
Commercial Space Launch Activities.

DATES: This amendment becomes effective July 2, 2010.

FOR FURTHER INFORMATION CONTACT: Laura Montgomery, Senior Attorney,
Office of the Chief Counsel, Regulations Division, AGC-200, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone<PHONE_NUMBER>; facsimile<PHONE_NUMBER>; e-mail
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking and Applicable Statutes

    The statute under which the Secretary of Transportation regulates
commercial space transportation, 49 U.S.C. Subtitle IX, sections 70101-
70121 (chapter 701), provides for the Department of Transportation
(DOT), and, through delegation, the Federal Aviation Administration
(FAA) to impose civil penalties on persons who violate chapter 701, a
regulation issued under chapter 701, or any term or condition of a
license or permit issued or transferred under chapter 701. 49 U.S.C.
70105a(h)(i), 70115.
    This rule implements the Federal Civil Penalties Inflation
Adjustment Act of 1990 (FCPIAA), Public Law (Pub. L.) 101-410, as
amended by the Debt Collection Improvement Act of 1996, Public Law 104-
134, codified at 28 U.S.C. 2461 note.

    The FCPIAA requires Federal agencies to adjust minimum and maximum
civil penalty amounts for inflation to preserve their deterrent impact.
Under these laws, each agency must make an initial inflationary
adjustment for all applicable civil monetary penalties, and further
adjust these penalties at least once every 4 years. The FCPIAA required
the first adjustment to the maximum civil penalty found in 14 CFR part
406 to have been made in 1996.

Prior Rulemakings

    This rule is the FAA's initial adjustment to the maximum civil
penalty found in 14 CFR part 406 which governs commercial space
transportation adjudications. The FAA has routinely adjusted for
inflation civil monetary penalties for aviation contained in 14 CFR
part 13. [See 61 FR 67445, Dec. 20, 1996, as amended by Amdt. 13-28, 62
FR 4134, Jan. 29, 1997; 67 FR 6366, Feb. 11, 2002; Amdt. 13-33, 71 FR
28522, May 16, 2006; 71 FR 47077, Aug. 16, 2006; 71 FR 52407, Sept. 6,
2006.]

Background

    The FCPIAA determines inflationary adjustments by increasing civil
penalties by a cost-of-living adjustment (COLA). The COLA for each
civil penalty is the percentage by which the U.S. Department of Labor's
Consumer Price Index for all-urban consumers (CPI-U) for the month of
June of the calendar year preceding the adjustment exceeds the CPI-U
for the month of June of the calendar year in which the amount of such
civil penalty was last set or adjusted pursuant to the FCPIAA. The
FCPIAA contains specific rules for rounding the inflationary increase
based on the initial amount of the civil penalty being adjusted.
However, the FCPIAA limits the increase to a maximum of ten percent for
the first adjustment. This limitation does not apply to subsequent
adjustments.

Method of Calculation

    14 CFR 406.9 states that under 49 U.S.C. 70115(c)(1)(a) a maximum
civil penalty of $100,000 is imposed for violations of chapter 701, a
regulation proscribed under chapter 701, or any term or condition of a
license or permit issued or transferred under chapter 701. However,
this rulemaking is our initial adjustment and any adjustment in civil
penalty is limited by statute to a maximum ten percent increase. Thus,
instead of using the COLA, the penalty is increased by ten percent of
$100,000, which is $10,000. Therefore, the new civil penalty becomes
$110,000 ($100,000 + $10,000).
    Four years from now, when the next adjustment is due, we will
employ the COLA methodology. It works as follows, using the current
year only as an example. Were we using the COLA method this year, we
would first determine the appropriate CPI-U for June of the calendar
year preceding the year of adjustment. For an adjustment in 2010, we
would use the CPI-U for June of 2009, which was 215.693. We would also
determine the CPI-U for June of the year the civil penalty came into
force. Because the civil penalty came into force in 1984, we would use
the CPI-U for June of 1984, which was 103.7.
    Second, we would calculate the COLA. To do this we would subtract
the CPI-U for June 1984 (103.7) from the CPI-U of June 2009 (215.693).
Next, we would divide the resulting difference (111.993) by the CPI-U
for June 1984 (103.7). The resulting quotient (1.07997) is then
multiplied by 100 yielding a COLA of 107.997%.
    Were this not our initial adjustment, we would calculate the raw
inflationary increase by multiplying the maximum civil penalty
($100,000) by the COLA (107.997%). This would provide a raw inflation
increase of $107,997. Next, we would round the raw inflation amounts by
the statutory rounding formula found in Section 5(a) of the FCPIAA.
Determination of the proper rounding formula depends on the current
amount of the civil penalty at the time the calculation is made, not
the size of the raw inflationary increase. The applicable rounding
formula for the existing civil penalty of $100,000 would be that
``[a]ny increase * * * is rounded to the nearest * * *[m]ultiple of
$5,000 in the case of penalties greater than $10,000 but less than or
equal to $100,000 * * *'' Thus, the raw increase of $107,997 would
become $105,000 after rounding. Finally, the increase of $105,000 would
be added to the initial civil penalty $100,000 for an adjusted civil
penalty of $205,000.

Good Cause for Immediate Effectiveness of Final Rule

    Under the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), a
final rule may be issued without public notice and comment if the
agency finds good cause that notice and comment are impractical,
unnecessary, or contrary to public interest. Good cause exists in this
rule to dispense with public notice and comment because adjustments to
civil penalties for inflation are required by Congress, as set forth in
Section 5 of the FCPIAA, in order to maintain the deterrent effect of
civil penalties and promote compliance with the law. This rulemaking is
ministerial, technical, and noncontroversial. The FCPIAA serves as a
Congressional mandate and the FAA may not exercise any discretion or
policy judgments. The FAA has no discretion as to the amount of the
adjustment. Furthermore, it would be contrary to the public interest to
delay these adjustments in order to receive public comment because the
regulation concerns a civil penalty for conduct that is already illegal
under existing law. Also, any delay would be unnecessary as the FAA
cannot change the method of application of the mandatory inflation
adjustment as defined by the FCPIAA.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there are no current or new requirements for information collection
associated with this rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.

Regulatory Evaluation, Regulatory Flexibility Determination,
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulations justify its costs.
Second, the Regulatory Flexibility Act of 1980 (RFA), Public Law 96-
354, codified at 5 U.S.C. 601-612, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121,
requires agencies to analyze the economic impact of regulatory changes
on small entities. Third, the Trade Agreements Act of 1999 (Trade Act),
Public Law 96-39, codified at 19 U.S.C. 2501-2581, prohibits agencies
from setting standards that create unnecessary obstacles to the foreign
commerce of the U.S. In developing U.S. standards, the Trade Act
requires agencies to consider

international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995,
(Pub. L. 104-4), codified at 2 U.S.C. 658, 1501-03, and 1531-34,
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more, in any one year (adjusted for inflation).
    DOT Order 2100.5 prescribes policies and procedures for
simplification, analysis, and review of regulations. If the expected
impact is so minimal that a proposed or final rule does not warrant a
full evaluation, this order permits that a statement to that effect and
the basis for it be included in the preamble if a full regulatory
evaluation of the cost and benefits is not prepared. Such a
determination has been made for this final rule. The reasoning for this
determination is as follows. This rule adjusts for inflation the
maximum civil penalty for violations of the Commercial Space Launch Act
of 1984, to be in compliance with the Federal Civil Penalties Inflation
Adjustment Act of 1990. This inflation adjustment is an economic
transfer and not a social cost.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
    As already noted, this rule adjusts for inflation only, as required
by the Federal Civil Penalties Inflation Adjustment Act of 1990.
Therefore, as FAA Administrator, I certify that this rule will not have
a significant economic impact on a substantial number of small
entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. Legitimate domestic objectives, such as safety, are
not considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and
determined that it would impose identical inflation adjusted civil
penalties on domestic and international entities that violate 14 CFR
part 406, and thus would have a neutral trade impact. Furthermore, the
inflationary adjustment is a legitimate domestic objective preserving
the existing deterrent impact of 49 U.S.C. subtitle IX, chapter 701.
Therefore, we have determined that this rule will result in a neutral
impact on international trade.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(adjusted annually for inflation with the base year 1995) in any one
year by State, local, and tribal governments, in the aggregate, or by
the private sector; such a mandate is deemed to be a ``significant
regulatory action.'' The FAA currently uses an inflation-adjusted value
of $143.1 million in lieu of $100 million.
    Because this final rule only increases a civil penalty by $10,000,
as required by FCPIAA, it does not contain a mandate that meets this
threshold amount. Therefore, the requirements of Title II of the act do
not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA determined that
this action would not have a substantial direct effect on the States,
or the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, the FAA has determined that this final
rule does not have federalism implications.

Environmental Analysis

    FAA Order 1050.1E defines FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this final rule qualifies for the categorical exclusion
identified in Chapter 3, paragraph 312d, and involves no extraordinary
circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or
Use

    The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://
www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://
www.faa.gov/regulations_policies/; or
    3. Accessing the Government Printing Office's Web page at http://
www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the amendment number or docket number of this
rulemaking.
    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, 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 (Volume
65, Number 70; Pages 19477-78) or you may visit http://
DocketsInfo.dot.gov.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact your local FAA official, or
the person listed under the FOR FURTHER INFORMATION CONTACT heading at
the beginning of the preamble. You can find out more about SBREFA on
the Internet at http://www.faa.gov/regulations_policies/rulemaking/
sbre_act/.

List of Subjects in 14 CFR Part 406

    Administrative procedure and review, Commercial space
transportation, Enforcement, Investigations, Penalties, Rules of
adjudication.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration
amends part 406 of Title 14, Code of Federal Regulations as follows:

PART 406--INVESTIGATIONS, ENFORCEMENT, AND ADMINISTRATIVE REVIEW

0
1. The authority citation for part 406 continues to read as follows:

    Authority: 49 U.S.C. 70101-70121.

0
2. Amend Sec.  406.9 by revising paragraph (a) to read as follows:

Sec.  406.9  Civil penalties.

    (a) Civil penalty liability. Under 49 U.S.C. 70115(c), a person
found by the FAA to have violated a requirement of the Act, a
regulation issued under the Act, or any term or condition of a license
or permit issued or transferred under the Act, is liable to the United
States for a civil penalty of not more than $110,000 for each
violation, as adjusted for inflation. A separate violation occurs for
each day the violation continues.
* * * * *

    Issued in Washington, DC, on May 25, 2010.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2010-13218 Filed 6-1-10; 8:45 am]
BILLING CODE 4910-13-P


The data in this folder this disc includes the mercury concentrations of
the raw materials and fuels as well as the TOC concentrations of the raw
materials for the Whitehall Plant.