[Federal Register: October 21, 2009 (Volume 74, Number 202)]
[Notices]
[Page 54033-54038]
[DOCID:fr21oc09-45]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. NP09-26-000]

North American Electric Reliability Corporation; Order Addressing
Applicability of Section 215 of the Federal Power Act to Federal
Entities

October 15, 2009.
    1. On June 24, 2009, the North American Electric Reliability
Corporation (NERC) filed a Notice of Penalty for a self-certified
violation of a Commission-approved Reliability Standard by the U.S.
Army Corps of Engineers (Corps)-Tulsa District. In that filing, NERC
requested that the Commission issue a decision addressing the
jurisdictional issue of whether, pursuant to section 215 of the Federal
Power Act (FPA), federal entities that use, own, or operate the Bulk-
Power System, such as the Corps-Tulsa District, must comply with
mandatory Reliability Standards.
    2. The Corps-Tulsa District did not seek Commission review of the
Notice of Penalty, which took effect on the 31st day after filing
pursuant to section 215(e)(2) of the FPA.\1\ In this order, we affirm
that, pursuant to section 215 of the FPA, the Corps-Tulsa District and
other federal entities that use, own, or operate the Bulk-Power System
must comply with mandatory Reliability Standards.
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    \1\ 16 U.S.C. 824o(e)(2) (2006).
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Background

A. Statutory Framework

    3. Section 215 of the FPA authorizes the Commission to certify and
oversee an electric reliability organization (ERO), which is
responsible for developing and enforcing mandatory Reliability
Standards that are applicable to owners, users, and operators of the
Bulk-Power System.\2\ Section 215(e) authorizes the ERO, as well as the
Commission on its own motion or on complaint, to assess penalties for
violation of Reliability Standards.\3\ Exercising this statutory
authority, the Commission certified NERC as the ERO \4\ and initially
approved 83 Reliability Standards.\5\ Further, consistent with the
statute, NERC as the ERO delegated to eight Regional Entities,
including Texas Regional Entity, authority to, inter alia, enforce
mandatory Reliability Standards.\6\
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    \2\ 16 U.S.C. 824o(c) (2006).
    \3\ Id. Sec.  824o(e).
    \4\ North American Electric Reliability Corp., 116 FERC ]
61,062, order on reh'g and compliance, 117 FERC ] 61,126 (2006),
order on compliance, 118 FERC ] 61,030, order on compliance, 118
FERC ] 61,190, order on reh'g, 119 FERC ] 61,046 (2007), aff'd sub
nom. Alcoa Inc. v. FERC, 554 F.3d 1342 (D.C. Cir., 2009).
    \5\ Mandatory Reliability Standards for the Bulk-Power System,
Order No. 693, FERC Stats & Regs. ] 31,242, order on reh'g, Order
No. 693-A, 120 FERC ] 61,053 (2007).
    \6\ North American Electric Reliability Corp., 119 FERC ]
61,060, order on reh'g, ] 61,260 (2007).
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    4. Users, owners, and operators of the Bulk-Power System are
required to register with NERC.\7\ NERC's Compliance Registry
identifies all entities subject to compliance with the approved
Reliability Standards. Further, NERC has developed a statement of
Registry Criteria that is employed by NERC and the Regional Entities to
determine which organizations should be registered because they are
material to the reliability of the Bulk-Power System.\8\ In cases where
an entity is registered involuntarily by NERC, that entity has an
opportunity to timely appeal its registration status in accordance with
Rule 504 and Appendix 5 to NERC's Rules of Procedure.
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    \7\ 18 CFR 39.2(c) (2009).
    \8\ The Commission accepted the NERC Registry Criteria in Order
No. 693, FERC Stats. & Regs. ] 31,242 at P 93-95.
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    5. NERC must file a Notice of Penalty with the Commission before a
Regional Entity or NERC penalty assessment for the violation of a
Reliability Standard takes effect.\9\ Each penalty determination is
subject to Commission review, on its own motion or by an application
for review by the recipient

of a penalty, within thirty days from the date NERC files the
applicable Notice of Penalty.\10\ In the absence of the filing of an
application for review of a penalty or motion or other action by the
Commission, each penalty filed by NERC is affirmed by operation of law
upon the expiration of the applicable thirty-day period.
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    \9\ Rules Concerning Certification of the Electric Reliability
Organization; and Procedures for the Establishment, Approval, and
Enforcement of Electric Reliability Standards, Order No. 672, FERC
Stats. & Regs. ] 31,204 at P 506, order on reh'g, Order No. 672-A,
FERC Stats. & Regs. ] 31,212 (2006).
    \10\ 16 U.S.C. 824o(e)(2) (2006).
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B. Notice of Penalty

1. Corps-Tulsa District Violation
    6. The Corps-Tulsa District owns a hydropower project called the
Denison Project Generator, located on the Red River in Bryan County,
Oklahoma and Grayson County, Texas. The Denison project has two main
generators with a maximum plant capacity of 80 megawatts. Texas
Regional Entity registered the Corps-Tulsa District in June 2007 as a
generator owner. According to NERC, the Corps-Tulsa District was
provided notice of the registration and did not appeal its registration
status.
    7. On June 24, 2009, NERC submitted a Notice of Penalty
incorporating the findings and justifications set forth in a Notice of
Confirmed Violation and Proposed Penalty or Sanction issued on February
20, 2008, by the Texas Regional Entity.\11\ According to NERC, the
Corps-Tulsa District self-certified on October 3, 2007, non-compliance
with Reliability Standard PRC-005-1 Requirements R1.1 and R2 for its
Denison Project Generator.\12\ NERC states that, in the self-
certification, the Corps-Tulsa District argued that, as a governmental
entity, it was not required to comply with section 215 of the FPA.
According to NERC, the Corps stated that, because of this uncertainty,
it was not in a position to register with the Regional Entity, but that
it would strive to meet the electric Reliability Standards established
pursuant to section 215 of the FPA, subject to the availability of
funds appropriated by Congress and project operation requirements.
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    \11\ Texas Regional Entity is an independent division of the
Electric Reliability Council of Texas, Inc. (ERCOT).
    \12\ PRC-005-1 requires that all generation protection systems
affecting the reliability of the bulk electric system be maintained
and tested. Requirement R1 requires each generator owner that owns a
generation protection system to have a protection system maintenance
and testing program for protection systems that affect the
reliability of the Bulk-Power System. Requirement R1.1 requires that
this program include maintenance and testing intervals and their
basis. Texas Regional Entity subsequently determined that the Corp-
Tulsa District did not violate PRC-005-1, Requirement R2 and it
dismissed that violation.
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    8. On October 31, 2007, Texas Regional Entity issued an Initial
Notice of Alleged Violation and, subsequently, a Notice of Alleged
Violation and Proposed Penalty or Sanction (NAVAPS). NERC states that
the Corps-Tulsa District responded to the NAVAPS on November 20, 2007,
but did not make the required election of agreeing with/not contesting
or contesting the alleged violations and/or penalty. Instead, according
to NERC, the Corps-Tulsa District asserted that the self-reporting data
it provided on October 3, 2007 to Texas Regional Entity was provided on
a voluntary basis, that the submission did not constitute entity
registration or a recognition of jurisdiction by the Corps, and that
the Corps is not in a position to register with the Corps-Tulsa
District's respective reliability organization. NERC states that the
Corps-Tulsa District further stated that, in order ``[t]o avoid
substantial changes to preliminary mitigation plans as a result of the
[Corps'] forthcoming national policy, a mitigation plan for this non-
compliance will not be submitted until this national policy has been
completed,'' and that it will ``voluntarily conform to the reliability
standards * * * [t]o the extent [its] current appropriations allow [it]
to comply with the Act.'' \13\
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    \13\ NERC June 24, 2009 Filing, attachment b (COE-Tulsa District
response to the Notice of Alleged Violation and Proposed Penalty and
Sanction, November 20, 2007).
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    9. NERC states that on January 17, 2008, Texas Regional Entity
issued a letter to the Corps-Tulsa District directing it to submit an
acceptable mitigation plan within ten days. The Corps-Tulsa District
responded asserting that it was unclear whether it is subject to the
requirements of section 215 of the FPA, but that it intended to make
all reasonable efforts to voluntarily comply with the Reliability
Standards while remaining within the funding level provided by
Congress. The Corps-Tulsa District stated that it was awaiting receipt
of national policy guidance regarding submission of mitigation plans,
and projected that it would be able to provide a final regional
mitigation plan by October 2008.
    10. NERC states that on January 30, 2008, the Corps-Tulsa District
submitted a mitigation plan to Texas Regional Entity but again
reiterated its belief that section 215 of the FPA does not apply to the
Corps-Tulsa District because it does not contain a clear, unequivocally
expressed waiver of sovereign immunity, which, the Corps-Tulsa District
argues, is necessary for any entity to exercise jurisdiction over a
federal agency. The Corps-Tulsa District also reiterated that it
intended to make all reasonable efforts to voluntarily comply with NERC
Reliability Standards so long as it can do so within the funding levels
authorized to it by Congress.
    11. Texas Regional Entity proposed a zero dollar penalty. After
NERC review, NERC submitted the Notice of Penalty to the Commission on
June 24, 2009. The penalty became effective by operation of law on July
27, 2009, and the Commission issued notice to that effect.\14\ The
Commission noted that the Corps-Tulsa District has challenged the
applicability of mandatory Reliability Standards under section 215 of
the FPA, that the Commission has sought comments on the applicability
of mandatory Reliability Standards to the U.S. Army Corps of Engineers
and other federal agencies, and that it would address this issue
separately.\15\
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    \14\ North American Electric Reliability Corp., 128 FERC ]
61,088 (2009).
    \15\ Id. at n.1.
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2. NERC Request for Decision on Jurisdictional Matter
    12. In the Notice of Penalty, NERC states that the Corps-Tulsa
District ``has challenged NERC's jurisdiction (and therefore that of
the Commission) under section 215 of the FPA.'' \16\ NERC, however,
believes that the Corps-Tulsa District is subject to mandatory
Reliability Standards under section 215 and requests that the
Commission, regardless of whether the Corps-Tulsa District seeks
Commission review of the Notice of Penalty, issue a decision on the
scope of NERC's and the Commission's jurisdiction under section 215 of
the FPA.
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    \16\ Notice of Penalty at 7.
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    13. In support of its position, NERC states that section 215 (b)(1)
of the FPA provides that ``[t]he Commission shall have jurisdiction * *
* over * * * all users, owners, and operators of the bulk-power system,
including but not limited to the entities described in section 201(f),
for purposes of approving reliability standards established under this
section and enforcing compliance with this section.'' NERC argues that
section 201(f) of the FPA describes agencies or instrumentalities of
the United States and thus these entities are expressly included within
the term ``users, owners, and operators of the bulk-power system'' in
section 215 and made subject to the Commission's jurisdiction to both
approve and enforce Reliability Standards.
    14. In further support, NERC states that Congress, in the Energy
Policy Act

of 2005,\17\ made technical and conforming amendments to the FPA that
were necessitated by the substantive changes to the FPA, including the
addition of section 215. As part of these changes, FPA section 201(b),
which establishes the applicability of Part II of the FPA, was amended
to expressly add ``section 215'' to the list of sections of the FPA
enumerated in section 201(b)(2) and to add ``[n]otwithstanding section
201(f)'' to the beginning of section 201(b)(2). NERC argues that the
specific provisions of section 201(b)(2) override the general language
of section 201(f), which excludes the United States from the
application of Part II of the FPA. Thus, NERC argues that section
201(b)(2) provides further confirmation that the United States is
subject to section 215 and to Commission jurisdiction both for carrying
out the provisions of sections 215 and for enforcing those provisions.
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    \17\ Energy Policy Act of 2005 (EPAct 2005), Pub. L. No 109-58,
Title XII, Subtitle A, 119 Stat. 594, 941 (2005).
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    15. Finally, NERC looks to the legislative history of the Energy
Policy Act of 2005 and in particular, to the debate surrounding the
Thomas amendment, which was adopted by the United States Senate in 2002
and which was a precursor to FPA section 215. NERC points to an
explanation offered by Senator Thomas, the author of that amendment,
stating ``[t]he new reliability organization will have enforcement
powers with real teeth to ensure reliability. The amendment provides
that mandatory reliability rules will apply to all users of the
transmission grid. There are no loopholes. No one will be exempt.''
\18\ NERC notes that Senator Bingaman also stated that ``[t]he
reliability system needs to apply to all users.'' In addition, NERC
quotes a later analysis of substantively similar reliability
legislation by the General Accounting Office acknowledging the
applicability of reliability rules to federal entities: ``All users,
owners and operators of the bulk-power system would have to comply with
the reliability standards. * * * We understand this would include both
private entities and Federal entities (such as the Tennessee Valley
Authority, the Bonneville Power Administration, and other federal
marketing agencies), among others.'' \19\
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    \18\ Citing Cong. Rec. 1874 (March 14, 2002).
    \19\ Citing General Accounting Office, Draft Legislation
Concerning an Electric Reliability Organization, at 3, n.5 (March
18, 2003).
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Notice of Filing and Comments

    16. Notice of NERC's June 24, 2009 filing was published in the
Federal Register, 74 FR 32,153 (2009), with comments due on or before
July 24, 2009. By notice published July 24, 2009, the comment period
was extended to August 24, 2009.
    17. The Corps filed a motion to intervene and comments regarding
the applicability of Reliability Standards under section 215 of the
FPA.
    18. In addition, Western Electricity Coordinating Council (WECC),
Tex-La Electric Cooperative of Texas, Inc., SERC Reliability
Corporation, and the Midwest Reliability Organization filed motions to
intervene. Mid-West Electric Consumers Association and the Southwestern
Power Resources Association (collectively, Federal Power Customers),
Texas Regional Entity, the National Rural Electric Cooperative
Association (NRECA), the United States Department of Energy (DOE),
ReliabilityFirst Corporation (ReliabilityFirst), the Southeastern
Federal Power Customers, Inc. (Southeastern Customers) and the United
States Department of the Interior (Interior) filed motions to intervene
and comments. The Department of the Army, Office of the Assistant
Secretary for Civil Works (Department of the Army), filed comments. The
Southwest Transmission Dependent Utility Group (Southwest Utility
Districts), Tri-State Generation and Transmission Association, Inc.
(Tri-State) filed motions to intervene and protests.
    19. On September 8, 2009, NERC filed reply comments. On September
23, 2009, the Corps filed an objection to NERC's motion for leave to
file reply comments. On October 7, 2009, DOE filed a response to NERC's
reply comments. On October 7, 2009, DOE also filed a motion for a stay
to suspend enforcement activity only in those cases where a civil fine
against a DOE entity is at issue.\20\
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    \20\ The Commission recognizes that the DOE has a concern that
the possibility of civil penalties for federal entities may cause
litigation in a number of proceedings; however, given that the issue
of civil fines is beyond the scope of this proceeding, we do not
discuss DOE's motion here. See infra P 32.
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A. The Corps' Comments

    20. The Corps states that it currently operates 75 hydropower
plants nationwide and they account for three percent of the nation's
total electrical capacity. The Corps states that the Denison
powerhouse, the subject of NERC's Notice of Penalty, is operated as a
peaking plant with approximately 37 percent plant annual capacity
factor. The Corps also states that although there are two transmission
lines going into the Denison switchyard, only the transmission line
going into Texas is being utilized for transmission of power from the
Denison powerhouse. The other line is energized up to an open breaker
and associated disconnecting switch in the switchyard. According to the
Corps, while it is possible to transmit power both into Oklahoma and
Texas simultaneously using individual units, the two systems can never
be connected together without resulting in equipment damage. A ``bus
tie'' breaker is used to separate the two units for this type of
operation. Therefore, the Corps asserts that this switchyard is treated
as a radial transmission line with no critical connection to the ERCOT
system. The Corps further asserts that since no power is ``wheeled''
through the switchyard to serve another load, NERC has not alleged that
if the switchyard equipment fails, there will be an adverse effect on
the reliability of the Bulk Power System.
    21. The Corps contends that section 215 does not grant the
Commission or NERC jurisdiction over Corps-owned hydroelectric
generating facilities at its Civil Works projects.\21\ The Corps adds
that NERC's analysis is flawed in that the Corps has numerous
hydropower projects and in order to respond to NERC's filing, which is
essentially a request for declaratory judgment, the Corps must address
the unique configurations of each of its facilities, although only one
was involved in the Notice of Penalty. The Corps asserts that this
violates its due process rights because only the Denison Generator
Project has been cited. The Corps also asserts that Congress has not
waived the Corps' sovereign immunity, and thus, NERC cannot issue
monetary penalties against the Corps. Further, the Corps asserts that
the legal dispute should be submitted to the Attorney General, not
through the Commission's notice and comment process.
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    \21\ According to the Corps' January 31, 2007 Civil Works
Information Paper, all 75 of its hydropower plants are Civil Works
projects. U.S. Army Corps of Engineers, Civil Works Program
Statistics (January 31, 2007) available at http://<IP_ADDRESS>/cw/
cecwb/GWiz07.pdf.
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B. Other Comments and Protests

    22. The Department of the Army, NRECA, Southwest Utility Districts,
and Interior raise procedural issues. The Department of the Army states
that the Department of Justice's Office of Legal Counsel, and not the
Commission's adjudicatory process, is the proper forum for resolving
the disagreement on implementation of section 215 of the FPA. NRECA
states that it supports NERC's need for clarity regarding the scope of
its jurisdiction under section 215 but does not believe a specific

penalty proceeding is appropriate for resolving this broad issue
involving multiple federal agencies and one or more cabinet-level
departments. NRECA states that it would be more appropriate for the
Commission to temporarily suspend the procedural schedule in this
docket and confer with the Corps and other federal agencies. Interior
states that the proceeding should be stayed to allow for prompt
interagency resolution of the relevant jurisdictional issues. Southwest
Utility Districts state that the Commission should create a list of
specific issues and seek supplemental briefing of the parties who do
intervene in this proceeding and of federal agencies that do not
intervene but could file subsequent comments.
    23. Texas Regional Entity, WECC, and ReliabilityFirst agree with
NERC's conclusion that federal entities such as the Corps-Tulsa
District are subject to mandatory Reliability Standards under section
215 of the FPA, including its penalty and sanction provisions. Texas
Regional Entity reiterates the information described in NERC's Notice
of Penalty and requests that the Commission affirm jurisdiction by the
Commission and NERC over the Corps-Tulsa District under section 215 of
the FPA. ReliabilityFirst asserts that a determination that exempts
federal entities from the Commission's section 215 jurisdiction would
have far-reaching implications for the reliability of the Bulk-Power
System. According to ReliabilityFirst, federal entities are an
important part of the users, owners, and operators of the Bulk-Power
System in ReliabilityFirst's region and they have an even more
substantial presence in other regions. Thus, according to
ReliabilityFirst, exempting federal entities from compliance with
mandatory Reliability Standards would impair the reliability and the
resilience of the electric grid.
    24. ReliabilityFirst identifies a number of potential consequences
if federal entities are not required to comply with mandatory
Reliability Standards. It states that such an exclusion ``would provide
a disincentive to the interaction between users, owners, and operators
that is necessary to preserve reliability.'' \22\ It adds that not only
do some Reliability Standards depend on the timely exchange of
information and directives between registered entities, but the
effectiveness of some Reliability Standards, in particular the Critical
Infrastructure Protection standards, depends in large part on system-
wide compliance. ReliabilityFirst further states that several
Reliability Standards require reliability coordinators to issue
directives to other registered entities so that necessary steps are
taken to preserve reliability. It adds that if a federal entity
fulfilling a transmission operator or generator operator function is
exempt from the Commission's jurisdiction and refuses to acknowledge
this reliability coordinator authority in an emergency situation,
cascading outages or other manifestations of severe grid instability
could result. Similarly, according to ReliabilityFirst, failure to heed
a reliability coordinator's directive to return the system to within an
Interconnection Reliability Operating Limit could have disastrous
results for system reliability. Likewise, the failure of generators to
notify their corresponding transmission operators and balancing
authorities if they experience a protective relay or equipment failure
may prevent the transmission operator from learning of this failure in
time to take appropriate corrective action, thereby endangering system
reliability.
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    \22\ ReliabilityFirst Comments at 5.
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    25. Finally, ReliabilityFirst asserts that the application of
Reliability Standards to federal entities is meaningless without the
power to enforce those Reliability Standards. ReliabilityFirst states
that without enforcement power, compliance would be voluntary, the
situation that existed before the passage of section 215 of the FPA.
ReliabilityFirst urges the Commission to conclude that federal entities
are subject to section 215, including the penalty and sanction
provisions and states that this is the plain meaning of the statute and
to decide otherwise would contravene the intent of Congress and
undermine all of the Commission's efforts to ensure the reliability of
the Bulk-Power System and prevent a cascading blackout.
    26. DOE, Interior, Tri-State and Southeastern Customers argue that
federal agencies must comply with NERC's Reliability Standards but
should not be subject to monetary penalties. DOE argues that the plain
language of section 215(b)(1) makes it clear that the Commission has
jurisdiction over ``all users, owners, and operators of the bulk-power
system, including but not limited to the entities described in section
201(f) for purposes of approving Reliability Standards established
under this section and enforcing compliance with this section.'' \23\
DOE adds that the clear inclusion of federal entities described in
section 201(f) is consistent with Congress's intent to ensure
reliability nationwide. DOE further contends that section 201(b)(2)
limits the Commission's section 215 jurisdiction over federal entities
to the purposes described in section 215, providing:
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    \23\ 16 U.S.C. 824o(b)(1) (2006).

    Notwithstanding section 201(f), the provisions of section * * *
215 * * * shall apply to the entities described in such provisions
and such entities shall be subject to the jurisdiction of the
Commission for purposes of carrying out the enforcement authorities
of this Act with respect to such provisions. Compliance with any
order or rule of the Commission under the provisions of section * *
* 215 * * * shall not make an electric utility or other entity
subject to the jurisdiction of the Commission for any purposes other
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than the purposes specified in the preceding sentence.

    DOE argues that section 201(b)(2) supports Commission jurisdiction
over DOE entities under section 215 and section 215 alone; it does not
authorize the Commission to punish violations of section 215 by
assessing criminal penalties or levying monetary civil fines under any
other section of the FPA. DOE also asserts that the term ``penalty'' is
not defined with sufficient clarity in section 215(e) to support the
imposition of punitive monetary penalties on DOE entities under that
section.
    27. Tri-State argues that it is vital that all users, owners and
operators, including federal agencies, obey the same mandatory
Reliability Standards to ensure the reliability of the Bulk-Power
System. Southeastern Customers state that the Commission has already
determined that in the Southeast the Corps was appropriately registered
as the transmission operator and the Corps did not challenge this
application of the Reliability Standards.\24\ Both Tri-State and
Southeastern Customers, argue, however, that federal agencies should
not be subject to monetary penalties for violation of Reliability
Standards. Tri-State argues that federal agencies rely on appropriated
funds from the U.S. Treasury to finance their statutory obligations and
generally do not have the authority to pay civil penalties because they
have limited discretion in allocating these funds. Tri-State adds that
even where a court has found a claim to be valid under the law, the
claim may not be paid unless Congress has enacted an appropriation
available for that purpose.\25\ In addition, both Tri-State and
Southeastern Customers argue that the Anti-Deficiency Act prohibits a
federal agency from paying monetary penalties because it may not spend
or

obligate more capital than was appropriated through the congressional
funding process for that particular purpose.\26\ Likewise, Southwest
Utility Districts argue that assessing a fine against a federal agency
is much more complicated than assessing it against a private utility,
in particular because the funds received by a federal agency are
received with specific statutory instructions and limitations.
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    \24\ Citing Southeastern Power Administration, 125 FERC ]
61,294, at P 24 (2008).
    \25\ Citing Office of Pers. Management v. Richmond, 496 U.S.
414, 424-25 (1990); Cincinnati Soap Co. v. United States, 301 U.S.
308, 321 (1937).
    \26\ Citing the Anti-Deficiency Act, 31 U.S.C. 1341(a)(1)(A)
(2006).
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    28. Federal Power Customers state that their members are purchasers
of energy generated and/or marketed by federal agencies, specifically,
the Corps, the U.S. Bureau of Reclamation, the Western Area Power
Administration, and the Southwestern Power Administration. Federal
Power Customers comment that it is unclear whether potential penalties
assessed by NERC and the Commission against the aforementioned federal
agencies may become subsumed in the costs passed on to Federal Power
Customers or their members. Federal Power Customers request that, in
reaching a jurisdictional determination, such determination not contain
any inference regarding the federal agencies' ability to pass through
penalties to customers.

Discussion

A. Procedural Matters

    29. Pursuant to Rule 214 of the Commissions Rules of Practice and
Procedure, 18 CFR 385.214 (2009), the timely unopposed motions to
intervene serve to make the entities that filed them parties to this
proceeding. Rule 213(a)(2) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.213(a)(2) (2009), prohibits an answer to an
answer unless otherwise ordered by the decisional authority. We are not
persuaded to accept NERC's or DOE's answers and will, therefore, reject
them.

B. Commission Determination

    30. As discussed below, we conclude that, pursuant to section 215
of the FPA, federal entities such as the Corps-Tulsa District that are
users, owners, or operators of the Bulk-Power System must comply with
mandatory Reliability Standards. The issue of whether a specific entity
is a user, owner, or operator of the Bulk-Power System is a factual
matter that is, in the first instance, determined by the ERO and the
relevant Regional Entity in NERC's compliance registration process.\27\
Thus, to the extent that the Corps raises concerns whether specific
Corps facilities are Bulk-Power System facilities or a specific Corp
District is a user, owner, or operator of the Bulk-Power System, these
matters are appropriately raised in the first instance with the
relevant Regional Entity pursuant to NERC's compliance registry
procedures. In this order, we are not making factual determinations
regarding specific entities or facilities. Rather, we address the legal
applicability of section 215 of the FPA to federal entities such as the
Corps-Tulsa District.
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    \27\ See, e.g., Order No. 693, FERC Stats. & Regs. ] 31,242 at P
93-96. Pursuant to NERC's Rules of Procedure, an entity that
disagrees with the ERO's registration determination can seek
Commission review of that decision.
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1. Procedural Arguments
    31. At the outset, we disagree with comments suggesting that the
Commission's process is the incorrect forum for determining the
implementation of section 215, or that the proceedings should be stayed
to allow for interagency resolution. Pursuant to section 215(b) of the
FPA, all users, owners, and operators of the Bulk-Power System must
comply with mandatory Reliability Standards that are developed by the
ERO and approved by the Commission. We have in the first instance the
authority to determine the scope of our jurisdiction.\28\ Our authority
to make this determination is not dependent on the ultimate outcome of
the determination. Accordingly, we address here the issue of the
Commission's authority pursuant to section 215 of the FPA to require
that federal entities such as the Corps-Tulsa District comply with
mandatory, Commission-approved Reliability Standards.
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    \28\ See, e.g., Nine Mile Point Nuclear Station LLC v. Niagara
Mohawk Power Corp., 110 FERC ] 61,033, at P 30 & n.31 (2005), aff'd,
452 F.3d 822 (D.C. Cir. 2006); accord New York v. FERC, 535 U.S. 1,
22-23 (2002) (holding the Commission was within its authority to
establish a seven-factor test to determine which facilities are
local distribution facilities that fall outside of the Commission's
jurisdiction pursuant to FPA section 201). Cf. Western Massachusetts
Electric Co., 61 FERC ] 61,182, at 61,661 (1992), aff'd, 165 F.3d
922, 926 (D.C. Cir. 1999) (concluding the Commission may examine
contracts relating to transactions which may be subject to its
jurisdiction prior to making its determination as to jurisdiction).
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    32. The Corps and several commenters address the additional
question of whether federal entities are subject to monetary penalties
for non-compliance with mandatory Reliability Standards. We view this
as a separate and distinct issue. We need not and do not address it
here.
2. Section 215 Jurisdiction Over Users, Owners, and Operators
    33. With regard to the Commission's section 215 jurisdiction, FPA
section 215(b)(1) states, in relevant part,

    Jurisdiction and applicability: (1) The Commission shall have
jurisdiction * * * over * * * all users, owners and operators of the
bulk-power system, including but not limited to the entities
described in section 201(f), for purposes of approving reliability
standards established under this section and enforcing compliance
with [section 215]. All users, owners and operators of the bulk-
power system shall comply with reliability standards that take
effect under this section.\29\

    \29\ 16 U.S.C. 824o(b)(1) (2006). Section 215 defines the Bulk-
Power System as ``(A) facilities and control systems necessary for
operating an interconnected electric energy transmission network (or
any portion thereof); and (B) the electric energy from generation
facilities needed to maintain transmission system reliability.'' 16
U.S.C. 824o(a)(1) (2006).

---------------------------------------------------------------------------
    FPA section 201(f) states, in relevant part,

    No provision in [Part II of the FPA] shall apply to, or be
deemed to include, the United States, a State or any political
subdivision of a state, * * * or any agency, authority, or
instrumentality of any one or more of the foregoing * * * unless
such provision makes specific reference thereto.

    34. The language of section 215(b) refers to entities within the
Commission's section 215 jurisdiction as ``including but not limited to
the entities described in section 201(f).'' In turn, section 201(f)
specifically refers to ``the United States, a State or any political
subdivision of a state, * * * or any agency, authority, or
instrumentality of any one or more of the foregoing.'' FPA section
215(b) is clear that the Commission shall have jurisdiction over those
described entities ``for purposes of approving reliability standards
established under this section and enforcing compliance with this
section.'' Had Congress intended, by its reference to section 201(f),
to extend the section 201(f) exemption to section 215, there would have
been no need to include the reference at all. Section 201(f) is in
place, absent a specific reference to the contrary. Congress instead
specifically included within the Commission's section 215 jurisdiction
each entity described in section 201(f) that is a user, owner, or
operator of the Bulk-Power System. Based on the expanded jurisdictional
reach of the statute, the Commission concludes that Congress intended
section 215 to be comprehensive; excluding federal agencies would
create a significant gap

in the ERO's and the Commission's reliability oversight.
    35. Further, section 201(b)(2) adds additional weight to the
argument, which we find persuasive, that Congress intended to include
federal entities under the Commission's jurisdiction. Such section, as
amended by the Energy Policy Act of 2005, states under the heading
``Declaration of Policy; Application of Part'':

    Notwithstanding section 201(f), the provisions of sections * * *
215 * * * shall apply to the entities described in such provisions,
and such entities shall be subject to the jurisdiction of the
Commission for purposes of carrying out such provisions and for
purposes of applying the enforcement authorities of this Act with
respect to such provisions.

    Prior to the Energy Policy Act of 2005, few provisions of Part II
of the FPA applied to governmental and other non-public utility
entities. Previously, section 201(b)(2) referred only to entities
subject to FPA sections 210, 211, and 212. The Energy Policy Act of
2005 added new provisions that use broad terms such as ``all users,
owners and operators,'' and these provisions apply to governmental as
well as private entities. In turn, EPAct 2005 amended section 201(b)(2)
to make clear that the Commission's jurisdiction over otherwise exempt
public utilities under certain substantive provisions of the FPA,
including the reliability provision, is only for the narrow purposes of
implementing and enforcing those provisions. When Congress amended
201(b)(2), it also specifically added the phrase ``[n]otwithstanding
section 201(f),'' at the beginning of the provision to make clear that
entities (including governmental entities) otherwise exempted from
Commission regulation by virtue of section 201(f) are indeed subject to
limited Commission regulation for purposes of certain FPA provisions.
Had Congress not intended section 215 to apply to governmental and
other exempt public utility entities, there would have been no reason
to add the reference to section 215 in section 201(b)(2).
    36. Finally, as NERC points out,\30\ the legislative history of FPA
section 215 supports the conclusion that Congress intended FPA section
215 to require that all users, owners, and operators of the Bulk-Power
System, including federal entities, comply with Commission-approved
Reliability Standards. FPA section 215 can be traced to the Thomas
amendment and Senator Thomas, the author of that amendment stated that
mandatory reliability rules will apply to all users of the transmission
grid. There are no loopholes. No one is exempt.''\31\
---------------------------------------------------------------------------

    \30\ See supra P 15.
    \31\ In addition, the General Accounting Office stated that
``[a]ll users, owners and operators of the bulk-power system would
have to comply with the reliability standards.'' and ``We understand
this would include both private entities and federal entities (such
as the Tennessee Valley Authority, the Bonneville Power
Administration, and other federal power marketing agencies), among
others.'' General Accounting Office, Draft Legislation Concerning an
Electric Reliability Organization, at 3, n.5 (March 18, 2003),
available at http://www.gao.gov/decisions/other/360241.pdf.
---------------------------------------------------------------------------

    37. Further, the legislative history makes clear that, among other
things, the reliability provision was added to the FPA to prevent
cascading blackouts. The debate during consideration of the Conference
Report on the proposed bill states that mandatory, enforceable
reliability rules began in response to the 1996 blackouts in the
Pacific Northwest and gained more urgency with the Northeast blackout
of 2003.\32\ Exclusion of federal entities from the reliability
provision would run counter to this legislative purpose as it would
create significant gaps in an otherwise comprehensive program to apply
mandatory Reliability Standards to better assure the reliability of the
Bulk-Power System. As ReliabilityFirst attests, excluding federal
entities from the requirements of the Reliability Standards raises
serious potential consequences for the reliability of the Bulk-Power
System. Thus, it stands to reason that Congress intended that all
users, owners, and operators of the Bulk-Power System, including
federal entities, be required to comply with the Reliability Standards.
It would be contrary to Congressional intent and likely ineffective to
return to a voluntary system based on individual discretion as the
Corps proposes with respect to federal entities.\33\
---------------------------------------------------------------------------

    \32\ See, e.g., 151 Cong. Rec. House 6943-44 (July 28, 2005)
(statement of Rep. Hastings); 151 Cong. Rec. Senate 9344 (July 29,
2005) (statement of Sen. Maria Cantwell).
    \33\ NERC June 24, 2009 Notice of Penalty at 2-3 (citing October
3, 2007 Letter from Department of the Army, Southwestern Division,
Corps of Engineers, to ERCOT).
---------------------------------------------------------------------------

    38. Accordingly, we find that, pursuant to section 215 of the FPA,
federal entities such as the Corps-Tulsa District that are registered
by the ERO as users, owners, and operators of the Bulk-Power System
must comply with mandatory Reliability Standards as to facilities that
fall within the Bulk-Power System.

The Commission Orders

    (A) The Commission grants NERC's request for a decision that,
pursuant to section 215 of the FPA, federal entities that use, own, or
operate the Bulk-Power System, must comply with mandatory Reliability
Standards, as discussed in the body of this order.
    (B) The Secretary is directed to publish a copy of this order in
the Federal Register.

    By the Commission. Commissioner Kelly is not participating.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9-25224 Filed 10-20-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Notices]
[Pages 71005-71006]
[FR Doc No: 2012-28774]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2012-N-0386]

Agency Information Collection Activities; Announcement of Office
of Management and Budget Approval; Registration and Product Listing for
Owners and Operators of Domestic Tobacco Product Establishments and
Listing of Ingredients in Tobacco Products

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing that a
collection of information entitled ``Registration and Product Listing
for Owners and Operators of Domestic Tobacco Product Establishments and
Listing of Ingredients in Tobacco Products'' has been approved by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act
of 1995.

FOR FURTHER INFORMATION CONTACT: Daniel Gittleson, Office of
Information Management, Food and Drug Administration, 1350 Piccard Dr.,
PI50-400B, Rockville, MD 20850,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: On August 9, 2012, the Agency submitted a
proposed collection of information entitled ``Registration and Product
Listing for Owners and Operators of Domestic Tobacco Product
Establishments and Listing of Ingredients in Tobacco Products'' to OMB
for review and clearance under 44 U.S.C. 3507. An Agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. OMB has now approved the information collection and has
assigned OMB control number 0910-0650. The approval expires on October
31, 2015. A copy of the supporting statement for this information
collection is available on the Internet at http://www.reginfo.gov/public/do/PRAMain.

    Dated: November 21, 2012.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2012-28774 Filed 11-27-12; 8:45 am]
BILLING CODE 4160-01-P


[Federal Register: December 21, 2009 (Volume 74, Number 243)]
[Notices]
[Page 67937]
[DOCID:fr21de09-96]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting Notice

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Public Law 94-409, that the Securities
and Exchange Commission will hold a Closed Meeting on Tuesday, December
22, 2009 at 2 p.m.
    Commissioners, Counsel to the Commissioners, the Secretary to the
Commission, and recording secretaries will attend the Closed Meeting.
Certain staff members who have an interest in the matters also may be
present.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR
200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the
scheduled matters at the Closed Meeting.
    Commissioner Aguilar, as duty officer, voted to consider the items
listed for the Closed Meeting in a closed session, and determined that
no earlier notice thereof was possible.
    The subject matter of the Closed Meeting scheduled for Tuesday,
December 22, 2009 will be:

    [I]nstitution and settlement of injunctive actions; institution
and settlement of administrative proceedings; and other matters
relating to enforcement proceedings.

    At times, changes in Commission priorities require alterations in
the scheduling of meeting items.
    For further information and to ascertain what, if any, matters have
been added, deleted or postponed, please contact:
    The Office of the Secretary at<PHONE_NUMBER>.

    Dated: December 17, 2009.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-30427 Filed 12-17-09; 4:15 pm]

BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Notices]
[Page 57167]
[FR Doc No: 2021-22417]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4614-DR; Docket ID FEMA-2021-0001]

New Jersey; Amendment No. 2 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: This notice amends the notice of a major disaster declaration
for the State of New Jersey (FEMA-4614-DR), dated September 5, 2021,
and related determinations.

DATES: This amendment was issued September 11, 2021.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration
for the State of New Jersey is hereby amended to include the following
area among those areas determined to have been adversely affected by
the event declared a major disaster by the President in his declaration
of September 5, 2021.

    Morris County for Individual Assistance.
    Morris County for Public Assistance.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050 Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-22417 Filed 10-13-21; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register: September 8, 2009 (Volume 74, Number 172)]
[Rules and Regulations]
[Page 45985-45990]
[DOCID:fr08se09-7]

=======================================================================
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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 736, 740 and 746

[Docket No. 090414648-9652-01]
RIN 0694-AE60

Cuba: Revisions to Gift Parcel and Baggage Restrictions, Creation
of License Exception for Donated Consumer Communications Devices and
Expansion of Licensing Policy Regarding Telecommunications

AGENCY: Bureau of Industry and Security, Department of Commerce.

ACTION: Final rule.

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

SUMMARY: This rule revises two existing License Exceptions concerning
exports and reexports of gift parcels to Cuba and of personal baggage
taken by individuals leaving the United States for travel to Cuba. It
also creates a new License Exception authorizing the export and
reexport to Cuba of certain donated consumer communications devices,
including certain computers and software, mobile phones, and satellite
receivers. Finally, this rule revises the scope of existing licensing
policy regarding certain telecommunications links including satellite
radio and satellite television services. These actions are among those
directed by the President on April 13, 2009 to enhance the free flow of
information to and from Cuba and to promote contacts between Americans
and their relatives who reside in Cuba as a means of encouraging
positive change in Cuba and are consistent with the ongoing support the
United States has provided to individuals and nongovernmental
organizations that support democracy-building efforts in Cuba. These
actions do not suspend or terminate the United States embargo of Cuba.

DATES: Effective Date: This rule is effective September 3, 2009.

ADDRESSES: Although there is no comment period for this final rule, BIS
welcomes any comments from the public on the amendments made by this
rule. Comments may be submitted by e-mail directly to BIS at
<EMAIL_ADDRESS>(please refer to RIN 0694-AE60 in the
subject line); or by delivery to Regulatory Policy Division, Office of
Exporter Services, Bureau of Industry and Security, Room H2705, U.S.
Department of Commerce, 14th Street and Pennsylvania Avenue, NW.,
Washington, DC 20230. Comments on the information collection contained
in this rule should also be sent to Jasmeet Seehra, Office of
Management and Budget (OMB), by e-mail to<EMAIL_ADDRESS>or by
fax to<PHONE_NUMBER>. Refer to RIN 0694-AE60 in all comments.

FOR FURTHER INFORMATION CONTACT: Anthony Christino, Foreign Policy
Division, Office of Nonproliferation and Treaty Compliance at (202)
482-4252.

SUPPLEMENTARY INFORMATION:

Background

    The United States maintains a comprehensive embargo on trade with
Cuba. Pursuant to that embargo, all items that are subject to the
Export Administration Regulations (EAR) require a license for export or
reexport to Cuba unless authorized by a License Exception. BIS
administers export and reexport restrictions on Cuba consistent with
the goals of the embargo and with relevant legislation, including the
Cuban Liberty and Democratic Solidarity Act of 1996 (LIBERTAD).
Accordingly, BIS may issue specific or general authorizations for
limited types of transactions that support the goals of United States
policy while the embargo remains in effect.
    On April 13, 2009, the President directed the Secretary of the
Treasury and the Secretary of Commerce, in consultation with the
Secretary of State, to take certain actions to enhance the free flow of
information to and from Cuba and to promote contacts between Americans
and their relatives who reside in Cuba as a means of encouraging
positive change in Cuba. In doing so, the President noted the United
States policy of promoting democracy and human rights in Cuba and
stated that ``measures that decrease dependency of the Cuban people on
the Castro regime and that promote contact between Cuban-Americans and
their relatives in Cuba are means to encourage positive change in
Cuba.'' The policy of promoting human rights and democracy in Cuba has
long been reflected in legislation. LIBERTAD's

purpose, in part, is to help the Cuban people regain their freedom and
prosperity. In addition, even before LIBERTAD, the Cuban Democracy Act
of 1992 reflected Congressional support for assistance to encourage
democracy in Cuba, stating that the U.S. Government may provide
assistance, through appropriate nongovernmental organizations, for the
support of individuals and organizations to promote nonviolent
democratic change in Cuba.
    This rule implements the portions of the President's directive that
relate to the regulations of the Department of Commerce by changing the
existing License Exceptions ``Gift Parcels and Humanitarian Donations
(GFT)'' and ``Baggage (BAG),'' creating a new License Exception
``Consumer Communications Devices (CCD)'' and revising the scope of
licensing policy applicable to certain telecommunications links and
satellite radio and satellite television services.
    The changes made by this rule are intended to update, consistent
with LIBERTAD and other relevant legislation, certain provisions of the
United States embargo of Cuba to: (i) Address the impact of economic
and technological changes that have taken place in recent years; and
(ii) ensure that the embargo continues to support the goals of
promoting democracy in Cuba and providing support for the Cuban people.
None of the changes made by this rule suspend or terminate the United
States embargo of Cuba.

Specific Changes Implemented by This Rule

Changes to License Exception Gift Parcels and Humanitarian Donations
(GFT)

    License Exception Gift Parcels and Humanitarian Donations (GFT)
(Sec.  740.12 of the EAR) generally authorizes, among other things,
exports and reexports of gift parcels by an individual (donor)
addressed to an individual or to a religious, educational or charitable
organization (donee) for the use of the donee or the donee's immediate
family. Prior to the publication of this rule, items eligible for
export or reexport to Cuba in gift parcels were limited to food
(including vitamins); medicines; medical supplies and devices
(including hospital supplies and equipment for the handicapped);
receive-only radio equipment for reception of commercial/civil AM/FM
and short wave publicly available frequency bands, and batteries for
such equipment; and mobile phones covered by Export Control
Classification Numbers (ECCNs) 5A991 or 5A992, software for those
phones covered by ECCN 5D992, and batteries, memory cards, chargers and
other accessories for such mobile phones. Additionally, the License
Exception restricted recipients in Cuba to identified family members of
the donor (grandparents, parents, siblings, children and
grandchildren). Except for gift parcels of food, the License Exception
restricted a donor to sending only one gift parcel per month to the
same household in Cuba. The License Exception also limited the combined
total domestic retail value of all items other than food included in a
gift parcel to $400.
    This rule revises License Exception GFT to add clothing, personal
hygiene items, seeds, veterinary medicines and supplies, fishing
equipment and supplies, soap-making equipment, and non-sensitive items
normally sent as gifts between individuals as items eligible for export
or reexport to Cuba in gift parcels. The rule largely retains the
restriction that precludes items listed in specific entries on the
Commerce Control List. However, the rule does allow inclusion of
consumer communications devices controlled by ECCNs 4A994, 4D994,
5A991, 5A992, 5D991, and 5D992. These devices, which are described in
more detail in the discussion of the new License Exception for consumer
communications devices below, are widely available consumer products,
such as personal computers, that facilitate communications.
    This rule also revises License Exception GFT to remove requirements
that the donee be a member of the immediate family of the donor and
that only one gift parcel per month be sent to the same household in
Cuba. As revised, License Exception GFT authorizes a donor to send one
gift parcel per month to any individual (other than certain Cuban
Government or Cuban Communist Party officials) or to a charitable,
educational, or religious organization in Cuba that is not administered
or controlled by the Cuban government. For example, hospitals or
schools administered or controlled by the Cuban Government are not
eligible recipients under this License Exception. Further, this rule
revises the License Exception to increase the combined total domestic
retail value of all items included in a gift parcel from $400 to $800.

Changes to License Exception Baggage (BAG)

    Prior to publication of this rule, and since 2004, the terms of
License Exception BAG imposed a 44-pound weight limit on the personal
baggage of most travelers from the United States to Cuba. This rule
removes that limit. This change implements the President's directive to
lift weight restrictions on accompanied baggage.
    This rule does not remove or relax any other restrictions that
apply to License Exception BAG. The regulations continue to require
that individuals leaving the United States temporarily (i.e.,
traveling) must bring back items exported or reexported under this
License Exception unless they consume the items abroad or are otherwise
authorized to dispose of them under the EAR.

Donated Consumer Communications Devices, Computers and Software

    Prior to publication of this rule, with the exception of certain
items authorized by License Exception GFT, the export or reexport to
Cuba of donated consumer communications devices required an individual
validated license.
    This rule creates a narrowly tailored License Exception Consumer
Communications Devices (CCD) to authorize the export and reexport to
Cuba of donated consumer communications devices that are necessary to
provide efficient and adequate telecommunications services between the
United States and Cuba. In generally authorizing the export or reexport
of donated consumer communication devices to Cuba through a new License
Exception, this rule strengthens the United States' commitment to the
support of individuals and organizations to promote nonviolent
democratic change in Cuba, consistent with the goals of LIBERTAD and
the Cuban Democracy Act of 1992, and recognizes that recent changes in
communications technology have facilitated the widespread dissemination
of information and personal communications in ways that have become
increasingly essential for democratic movements across the world. This
rule is also consistent with the President's goal, as stated in his
April 13 memorandum, to promote contacts between Americans and their
relatives who reside in Cuba as a means of encouraging positive change
in Cuba.
    New License Exception CCD authorizes the export or reexport of
specific commodities and software that are widely available for retail
purchase and that are commonly used to exchange information and
facilitate interpersonal communications. However, consistent with 22
U.S.C. 6005(a), this new License Exception does not authorize U.S.-
owned or controlled entities in third countries to

engage in reexports of foreign produced commodities to Cuba for which
no license would be issued by the Treasury Department pursuant to 31
CFR 515.559. This License Exception is valid only for exports or
reexports to Cuba. The commodities and software exported or reexported
under this License Exception must be donated, but the License Exception
provides no limits on value or frequency of shipments. Eligible end-
users for items exported or reexported pursuant to this License
Exception are individuals in Cuba other than designated Cuban
Government and Communist Party officials, and also independent non-
governmental organizations in Cuba. As is the case with exports or
reexports under License Exception GFT, exports or reexports under
License Exception CCD may not be made to organizations administered or
controlled by the Cuban Government.
    The items authorized for export or reexport under the new License
Exception are commodities and software (except ``encryption source
code'') related to basic personal communications devices that are
widely available for retail purchase in the United States. These items
include: Mobile phones, including cellular and satellite telephones;
subscriber information module (SIM) cards; personal digital assistants;
laptop and desktop computers and peripherals such as monitors, graphics
accelerator cards, data storage devices and media such as disk drives,
flash drives, writable compact disks and floppy disks, keyboards, mice,
and printers including commodities possessing IEEE 802.15.1
``Bluetooth'' wireless personal area networking (WPAN) capability;
Internet connectivity devices including those possessing IEEE 802.11
``Wi-Fi'' and IEEE 802.16 ``WiMax'' wireless capabilities; satellite-
based television and radio receivers; digital music and video players
and recorders; personal two-way radios; digital cameras and memory
cards therefor; and batteries, chargers, carrying cases and similar
accessories for the equipment authorized by this rule. This rule also
authorizes the export and reexport of basic software for laptop and
desktop computers such as: Computer operating systems and software
(except ``encryption source code'') that enable activities such as word
processing, producing spread sheets, producing graphics presentations,
sending and receiving e-mail, Web browsing or developing relational
databases. When applicable, the rule describes these items as they are
classified on the Commerce Control List:
     Computers classified under ECCN 4A994.b or designated
EAR99 that do not exceed an adjusted peak performance of 0.02 weighted
teraflops;
     Disk drives and solid state storage equipment classified
as ECCN 5A992 or designated EAR99;
     Input/output control units (other than industrial
controllers designed for chemical processing) designated EAR99;
     Graphics accelerators and graphics coprocessors designated
EAR99;
     Monitors classified under ECCN 5A992 or designated EAR99;
     Printers classified under ECCN 5A992 or designated EAR99;
     Modems classified under ECCNs 5A991.b.2 or 5A992 or
designated EAR99;
     Network access controllers and communications channel
controllers classified under ECCN 5A991.b.4 or designated EAR99;
     Keyboards, mice and similar devices designated EAR99;
     Mobile phones, including cellular and satellite
telephones, personal digital assistants, and subscriber information
module (SIM) cards and similar devices classified under ECCNs 5A992 or
5A991 or designated EAR99;
     Memory devices classified under ECCN 5A992 or designated
EAR99;
     ``Information security'' equipment, ``software'' (except
``encryption source code'') and peripherals classified under ECCNs
5A992 or 5D992 or designated EAR99;
     Digital cameras and memory cards classified under ECCN
5A992 or designated EAR99;
     Television and radio receivers classified under ECCN 5A992
or designated EAR99;
     Recording devices classified under ECCN 5A992 or
designated EAR99;
     Batteries, chargers, carrying cases, and accessories for
the equipment described above that are designated EAR99; and
     ``Software'' (except ``encryption source code'')
classified under ECCNs 4D994, 5D991 or 5D992 or designated EAR99 to be
used for equipment described above.
    This change implements the President's directive to authorize,
consistent with national security concerns, the export or reexport to
Cuba of donated personal communications devices through a license
exception.

Revised Scope of Licensing Policy Regarding Telecommunications

    Prior to publication of this rule, Sec.  746.2(b)(2) of the EAR
stated that export of ``Telecommunications commodities may be
authorized on a case-by-case basis, provided the commodities are part
of an FCC-approved project and are necessary to provide efficient and
adequate telecommunications between the United Sates and Cuba.''
    This rule revises the text of Sec.  746.2(b)(2) of the EAR to
ensure that the licensing policy allows for case-by-case review of
exports or reexports of all items necessary to provide efficient and
adequate telecommunications links, including satellite radio and
satellite television, between the United States and Cuba consistent
with the President's April 13, 2009 directive. The scope of items
eligible for export or reexport now includes any item (commodity,
technology, or software) necessary to provide efficient and adequate
telecommunications links between the United States and Cuba, including
links established through third countries, and including links to
provide satellite radio or satellite television services to Cuba. In
making this change, BIS notes that the establishment of links through
third countries may be necessary to establish efficient and adequate
links between the United States and Cuba. These changes are consistent
with the goal of enhancing communications to promote democracy in Cuba.

Technical and Conforming Changes

    Although individual gift parcels may be eligible for export
pursuant to License Exception GFT, as set forth in Sec.  740.12(a) of
the EAR, consolidated shipments of multiple gift parcels are not
eligible for export under this License Exception. BIS has issued a
number of licenses to parties authorizing them to export consolidated
shipments of gift parcels to Cuba. As part of this rule, BIS is
amending General Order No. 4, found in Supplement No. 1 to part 736 of
the EAR, to authorize such license holders to export consolidated
shipments of all gift parcels that are eligible for License Exception
GFT as of the effective date of this rule. This modification is
appropriate because some previously-issued licenses for consolidated
shipments limit the eligible commodities and software, eligible
recipients, or limits on frequency or dollar value based on the
restrictions of License Exception GFT in place at the time the
consolidation license was issued. The amended General Order does not,
however, increase the total value of exports permitted under, or extend
the expiration date of, any license. Amending the General Order to
modify existing licenses in such a manner will facilitate
implementation of the policy underlying this rule by

allowing consolidators to include all gift parcels consistent with the
provisions of License Exception GFT in their consolidated shipments
immediately rather than having to wait until they obtain a new license.
Consolidators will still need to apply for new licenses when their
existing licenses have been completely used or have expired.
    Section 740.2(a)(6) of the EAR precludes use of any License
Exception to export or reexport to Cuba unless the License Exception is
listed in the License Exception paragraph pertaining to Cuba in part
746. This rule revises Sec.  746.2(a)(1) to list the new ``Consumer
Communications Devices'' License Exception that this rule creates.

Change to Prohibitions Applying to Gift Parcels Generally

    Although not related to the President's April 13, 2009 directive,
this rule also makes ineligible for inclusion in gift parcels to any
destination items listed on the Commerce Control List with ``encryption
items'' (EI) as a reason for control. BIS is making this change because
of the sensitivity of such items. Items controlled for EI reasons
employ sophisticated encryption techniques and have not been designated
as ``mass market'' items by the United States Government. Such items
are not eligible for export or reexport under License Exception GFT
because they are not normally exchanged between individuals as gifts.
However, because of the potential use of items controlled for EI
reasons by persons abroad to harm U.S. national security, foreign
policy and law enforcement interests, BIS is adding EI as a reason for
control that explicitly precludes use of License Exception GFT to any
destination. The other reasons for control that trigger this preclusion
are national security, nuclear nonproliferation, chemical and
biological weapons and missile technology.

Rulemaking Requirements

    1. This rule has been determined to be a significant rule under
Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid Office of Management and Budget
Control Number. This rule involves a collection of information that has
been approved by OMB under control number 0694-0088, which carries a
burden hour estimate of 58 minutes to prepare and submit form BIS-748P.
Miscellaneous and recordkeeping activities account for 12 minutes per
submission. BIS believes that this rule will make no material change to
the number of submissions or to the burden imposed by this collection.
    3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military or foreign affairs function
of the United States (See 5 U.S.C. 553(a)(1)). Further, no other law
requires that a notice of proposed rulemaking and an opportunity for
public comment be given for this rule. Because a notice of proposed
rulemaking and an opportunity for public comment are not required to be
given for this rule under 5 U.S.C. 553, or by any other law, the
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable.

List of Subjects

15 CFR Part 736

    Exports.

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.

15 CFR Part 746

    Exports, Reporting and recordkeeping requirements.

0
Accordingly, the Export Administration Regulations (15 CFR chapter VII,
subchapter C) are amended as follows:

PART 736--[AMENDED]

0
1. The authority citation for part 736 is revised to read as follows:

    Authority:  50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 2151 note; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, May 13, 2004;
Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); Notice of
November 10, 2008, 73 FR 67097 (November 12, 2008).

0
2. General Order Number 4 of Supplement No. 1 to Part 736 is amended by
revising the introductory text and by revising paragraph (b) to read as
follows:

Supplement No. 1 to Part 736--General Orders

* * * * *
    General Order No. 4 of June 13, 2008, as amended on September 3,
2009, amending existing licenses for exports of consolidated gift
parcels to Cuba due to changes in License Exception GFT.
* * * * *
    (b) Notwithstanding any statements to the contrary on the
license itself, licenses authorizing the export to Cuba of
consolidated gift parcels described in paragraph (a) of this order
that are valid on September 3, 2009 authorize the export of
consolidated shipments to Cuba of gift parcels that comply with the
requirements of License Exception GFT found in Sec.  740.12(a) of
the EAR as of September 3, 2009.
* * * * *

PART 740--[AMENDED]

0
3. The authority citation for part 740 is revised to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp.,
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice
of August 13, 2009, 74 FR 41325 (August 14, 2009).

0
4. Section 740.12 is amended by revising paragraphs (a)(2)(i),
(a)(2)(iii), (a)(2)(iv) and (a)(2)(v) to read as follows:

Sec.  740.12  Gift parcels and humanitarian donations.

    (a) * * *
    (2) * * *
    (i) Item limitations.
    (A) Prohibited items.
    (1) For Cuba no items listed on the Commerce Control List other
than items listed in Sec.  740.19(b) of the EAR may be included in a
gift parcel.
    (2) For all destinations, no items controlled for chemical and
biological weapons (CB), missile technology (MT), national security
(NS), nuclear proliferation (NP) or encryption items (EI) reasons on
the Commerce Control List (Supplement no. 1 to part 774 of the EAR) may
be included in a gift parcel.
    (3) Items prohibited for destinations in Country Group D:1 or E:2.
For destinations in Country Group D:1 or E:2, military wearing apparel
may not be included in a gift parcel regardless of whether all
distinctive U.S. military insignia, buttons, and other markings are
removed.
    (4) Gold bullion, gold taels, and gold bars are prohibited as are
items intended for resale or reexport.
    (B) Eligible items. For all destinations, eligible items are food
(including vitamins); medicines, medical supplies and devices
(including hospital supplies and equipment and equipment for the
handicapped); receive-only radio

equipment for reception of commercial/civil AM/FM and short wave
publicly available frequency bands, and batteries for such equipment;
clothing; personal hygiene items; seeds; veterinary medicines and
supplies; fishing equipment and supplies; soap-making equipment; as
well as all other items of a type normally sent as gifts between
individuals (including items listed in Sec.  740.19(b) of the EAR)
except for those items prohibited in paragraph (a)(2)(i)(A) of this
section. Items in gift parcels must be in quantities normally given as
gifts between individuals.
    Example to paragraph (a)(2)(i)(B) of this section. A watch or piece
of jewelry is normally sent as a gift. However, multiple watches,
either in one package or in subsequent shipments, would not qualify for
such gift parcels because the quantity would exceed that normally given
between individuals. Similarly, a sewing machine or bicycle within the
value limit of this License Exception may be an appropriate gift.
However, subsequent shipments of the same item to the same donee would
not be a gift normally given between individuals.
* * * * *
    (iii) Frequency.
    (A) Except for gift parcels of food to Cuba, not more than one gift
parcel may be sent from the same donor to the same donee in any one
calendar month.
    (B) There is no frequency limit on gift parcels of food to Cuba.
    (C) Parties seeking authorization to exceed the frequency limit due
to compelling humanitarian concerns (e.g., for certain gifts of
medicine) should submit a license application in accordance with
Sec. Sec.  748.1, 748.4 and 748.6 of the EAR to BIS with complete
justification.
    (iv) Value. The combined total domestic retail value of all
commodities and software in a single gift parcel may not exceed $800.
This limit does not apply to food sent in a gift parcel to Cuba.
    (v) Ineligible recipients.
    (A) No gift parcel may be sent to any of the following officials of
the Cuban Government: ministers and vice-ministers; members of the
Council of State; members of the Council of Ministers; members and
employees of the National Assembly of People's Power; members of any
provincial assembly; local sector chiefs of the Committees for the
Defense of the Revolution; Director Generals and sub-Director Generals
and higher of all Cuban ministries and state agencies; employees of the
Ministry of the Interior (MININT); employees of the Ministry of Defense
(MINFAR); secretaries and first secretaries of the Confederation of
Labor of Cuba (CTC) and its component unions; chief editors, editors
and deputy editors of Cuban state-run media organizations and programs,
including newspapers, television, and radio; or members and employees
of the Supreme Court (Tribuno Supremo Nacional).
    (B) No gift parcel may be sent to any of the following officials or
members of the Cuban Communist Party: members of the Politburo; the
Central Committee; Department Heads of the Central Committee; employees
of the Central Committee; and the secretaries and first secretaries of
provincial Party central committees.
    (C) No gift parcel may be sent to organizations administered or
controlled by the Cuban Government or the Cuban Communist Party.
* * * * *

Sec.  740.14 [Amended]

0
4. Section 740.14 is amended by:
0
a. removing ``(h)'' from the last sentence of paragraph (b)(4)
introductory text and adding ``(g)'' in its place:
0
b. removing paragraph (g); and
0
c. redesignating paragraph (h) as paragraph (g).
0
5. A new Sec.  740.19 is added to read as follows:

Sec.  740.19  Consumer Communications Devices (CCD).

    (a) Authorization. This License Exception authorizes the export or
reexport of commodities and software described in paragraph (b) to Cuba
subject to the conditions in paragraphs (c) and (d) of this section.
This section does not authorize U.S.-owned or -controlled entities in
third countries to engage in reexports of foreign produced commodities
to Cuba for which no license would be issued by the Treasury Department
pursuant to 31 CFR 515.559. Cuba is the only eligible destination under
this License Exception.
    (b) Eligible Commodities and Software. Commodities and software
eligible for export or reexport under this section are:
    (1) Computers designated EAR99 or classified under Export Control
Classification Number (ECCN) 4A994.b that do not exceed an adjusted
peak performance of 0.02 weighted teraflops;
    (2) Disk drives and solid state storage equipment classified under
ECCN 5A992 or designated EAR99;
    (3) Input/output control units (other than industrial controllers
designed for chemical processing) designated EAR99;
    (4) Graphics accelerators and graphics coprocessors designated
EAR99;
    (5) Monitors classified under ECCN 5A992 or designated EAR99;
    (6) Printers classified under ECCN 5A992 or designated EAR99;
    (7) Modems classified under ECCNs 5A991.b.2, or 5A992 or designated
EAR99;
    (8) Network access controllers and communications channel
controllers classified under ECCN 5A991.b.4 or designated EAR99;
    (9) Keyboards, mice and similar devices designated EAR99;
    (10) Mobile phones, including cellular and satellite telephones,
personal digital assistants, and subscriber information module (SIM)
cards and similar devices classified under ECCNs 5A992 or 5A991 or
designated EAR99;
    (11) Memory devices classified under ECCN 5A992 or designated
EAR99;
    (12) ``Information security'' equipment, ``software'' (except
``encryption source code'') and peripherals classified under ECCNs
5A992 or 5D992 or designated EAR99;
    (13) Digital cameras and memory cards classified under ECCN 5A992
or designated EAR99;
    (14) Television and radio receivers classified under ECCN 5A992 or
designated EAR99;
    (15) Recording devices classified under ECCN 5A992 or designated
EAR99;
    (16) Batteries, chargers, carrying cases and accessories for the
equipment described in this paragraph that are designated EAR99; and
    (17) ``Software'' (except ``encryption source code'') classified
under ECCNs 4D994, 5D991 or 5D992 or designated EAR99 to be used for
equipment described in this paragraph (b).
    (c) Donation Requirement. This License Exception authorizes the
export or reexport of eligible commodities and software that will be
donated by the exporter or reexporter to an eligible end-user or to
eligible end-users free of charge. The payment by an end-user of any
handling charges arising within the importing country or any charges
levied by the government of the importing country shall not be
considered a charge for purposes of this paragraph.
    (d) Eligible End-users--(1) Organizations. This License Exception
may be used to export or reexport eligible commodities and software to
and for the use of independent non-governmental organizations. The
Cuban Government or the Cuban Communist Party and organizations they
administer or control are not eligible end-users.
    (2) Individuals. This License Exception may be used to export
eligible commodities and software to and for the use of individuals
other than the

following officials of the Cuban Government and Cuban Communist Party:
    (i) Ineligible Cuban Government Officials. Ministers and vice-
ministers; members of the Council of State; members of the Council of
Ministers; members and employees of the National Assembly of People's
Power; members of any provincial assembly; local sector chiefs of the
Committees for the Defense of the Revolution; Director Generals and
sub-Director Generals and higher of all Cuban ministries and state
agencies; employees of the Ministry of the Interior (MININT); employees
of the Ministry of Defense (MINFAR); secretaries and first secretaries
of the Confederation of Labor of Cuba (CTC) and its component unions;
chief editors, editors and deputy editors of Cuban state-run media
organizations and programs, including newspapers, television, and
radio; or members and employees of the Supreme Court (Tribuno Supremo
Nacional).
    (ii) Ineligible Cuban Communist Party Officials. Members of the
Politburo; the Central Committee; Department Heads of the Central
Committee; employees of the Central Committee; and the secretaries and
first secretaries of provincial Party central committees.

PART 746--[AMENDED]

0
6. The authority citation for part 746 is revised to read as follows:

    Authority:  50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 287c; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; 22 U.S.C.
6004; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12854, 58 FR
36587, 3 CFR, 1993 Comp., p. 614; E.O. 12918, 59 FR 28205, 3 CFR,
1994 Comp., p. 899; E.O. 13222, 3 CFR, 2001 Comp., p. 783;
Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May
16, 2003; Presidential Determination 2007-7 of December 7, 2006, 72
FR 1899 (January 16, 2007); Notice of August 13, 2009, 74 FR 41325
(August 14, 2009).

0
7. Section 746.2, is amended by adding a paragraph (a)(1)(xiii) and by
revising paragraph (b)(2) to read as follows:

Sec.  746.2  Cuba.

    (a) * * *
    (1) * * *
    (xiii) Commodities and software authorized under License Exception
Consumer Communications Devices (CCD) (see Sec.  740.19 of the EAR).
* * * * *
    (b) * * *
    (2) Items may be authorized for export or reexport to Cuba on a
case-by-case basis, provided the items are necessary to provide
efficient and adequate telecommunications links between the United
States and Cuba, including links established through third countries,
and including the provision of satellite radio or satellite television
services to Cuba.
* * * * *

    Dated: September 1, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. E9-21402 Filed 9-3-09; 4:15 pm]

BILLING CODE 3510-33-P


[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Notices]
[Pages 48278-48279]
[FR Doc No: 2023-15771]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97956; File No. SR-CBOE-2023-005]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Designation of a Longer Period for Commission Action on Proceedings To
Determine Whether To Approve or Disapprove a Proposed Rule Change, as
Modified by Amendment No. 1, To Make Permanent the Operation of the
Program That Allows the Exchange to List P.M.-Settled Third Friday-of-
the-Month S&P 500 Stock Index Options (``SPX'') Series

July 20, 2023.
    On January 6, 2023, Cboe Exchange, Inc. (``Exchange'' or ``Cboe
Options'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to make permanent the operation of its pilot
program (``Program'') that permits the Exchange to list p.m.-settled
third Friday-of-the-month SPX options (``SPXPM''). The proposed rule
change was published for comment in the Federal Register on January 24,
2023.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 96703 (January 18,
2023), 88 FR 4265.
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    On March 7, 2023, pursuant to Section 19(b)(2) of the Act,\4\ the
Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ On March 17, 2023, the Exchange filed Amendment No. 1 to the
proposed rule change (``Amendment No. 1'').\6\ On April 24, 2023, the
Commission instituted proceedings to determine whether to approve or
disapprove the proposed rule change and published Amendment No. 1 for
notice and comment.\7\
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    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 97063, 88 FR 15476
(March 13, 2023).
    \6\ Amendment No. 1 is available at: https://www.sec.gov/comments/sr-cboe-2023-005/srcboe2023005.htm.
    \7\ See Securities Exchange Act Release No. 97367 (April 24,
2023), 88 FR 26366 (April 28, 2023).
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    Section 19(b)(2) of the Exchange Act \8\ provides that, after
initiating proceedings, the Commission shall issue an order approving
or disapproving the proposed rule change not later than 180 days after
the date of publication of

notice of filing of the proposed rule change. The Commission may extend
the period for issuing an order approving or disapproving the proposed
rule change, however, by not more than 60 days if the Commission
determines that a longer period is appropriate and publishes reasons
for such determination. The proposed rule change was published for
notice and comment in the Federal Register on January 24, 2023.\9\ The
180th day after publication of the proposed rule change is July 23,
2023. The Commission is extending the time period for approving or
disapproving the proposed rule change for an additional 60 days.
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    \8\ 15 U.S.C. 78s(b)(2).
    \9\ See supra note 3 and accompanying text.
---------------------------------------------------------------------------

    The Commission finds it appropriate to designate a longer period
within which to issue an order approving or disapproving the proposed
rule change so that it has sufficient time to consider the proposed
rule change and the issues raised therein. Accordingly, the Commission,
pursuant to Section 19(b)(2) of the Exchange Act,\10\ designates
September 21, 2023, as the date by which the Commission shall either
approve or disapprove the proposed rule change (File No. SR-CBOE-2023-
005).
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    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-15771 Filed 7-25-23; 8:45 am]
BILLING CODE 8011-01-P