[Federal Register Volume 80, Number 66 (Tuesday, April 7, 2015)]
[Notices]
[Pages 18662-18664]
[FR Doc No: 2015-07851]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74628; File No. SR-Phlx-2015-32]

Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
Rule 3301(h)

April 1, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 24, 2015, NASDAQ OMX PHLX LLC (``Phlx'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``Commission'')
the proposed rule change as described in Items I and II below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Rule 3301(h) to introduce the Market
Hours Immediate or Cancel Time in Force for use on the NASDAQ OMX PSX
System and to modify the processing of Good-til-market close-designated
orders.
    The text of the proposed rule change is available on the Exchange's
Web site at http://nasdaqomxphlx.cchwallstreet.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 Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

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

1. Purpose
    The Exchange is proposing to expand the number of Time in Force
designations currently available for use in the PHLX NASDAQ OMX PSX
System (``PSX System'' or ``PSX'') by adopting a Market Hours Immediate
or Cancel (``Market Hours IOC'' or ``MIOC'') Time in Force. Time in
Force is a characteristic of an order that limits the period of time
that PSX System will hold an order for potential execution. Currently
the Exchange offers the following six Times in Force for use in PSX:
(1) System Hours Immediate or Cancel; (2) System Hours Day; (3) System
Hours Good-till-Cancelled; (4) System Hours Expire Time; (5) Market
Hours GTC; and (6) Good-til-market close.\3\ The Exchange is proposing
to add the Market Hours IOC Time in Force, which will cause an order
designated as such (or unexecuted portion thereof) to be canceled if,
after entry into the PSX System, the order (or unexecuted portion
thereof) becomes non-marketable during the period from 9:30 a.m.
Eastern Time until 4:00 p.m. Eastern Time (``Regular Market Hours'').
The new Time in Force is similar to the System Hours Immediate or
Cancel (``SIOC'') Time in Force, which, as noted above, is currently
available on the Exchange. Like the proposed MIOC Time in Force, an
order with a Time in Force of SIOC will cause such an order (or a
portion thereof) to be canceled and returned to the entering market
participant if, after entry into the PSX System, the order (or
unexecuted portion thereof) is not marketable. Unlike the System Hours
Immediate or Cancel Time in Force, which is available for entry and
potential execution from 8:00 a.m. until 5:00 p.m. Eastern Time
(``System Hours''), the proposed MIOC Time in Force is only available
for entry and potential execution during Regular Market Hours. As such,
MIOC-designated orders will operate in the same manner as SIOC-
designated orders, but are limited to entry and potential execution
only during Regular Market Hours. The Exchange notes that, because it
is an immediate or cancel time in force,\4\ the Exchange believes that
it is appropriate to limit MIOC order entry to Regular Market Hours. An
order designated with a Time in Force of MIOC that is entered outside
of Regular Market Hours will be returned to the entering member firm
without attempting to execute.
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    \3\ See Rules 3301(h)(1)-(8). The Exchange notes that Rules
3301(h)(5) and (6) are currently held in reserve.
    \4\ An order designated as ``immediate or cancel'' represents
the entering member firm's desire for the order to either execute
immediately after the System determines whether the order is
marketable or be canceled.
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    The Exchange notes that the NASDAQ Stock Market LLC (``NASDAQ'')
currently has a MIOC Time in Force, which was adopted in 2006.\5\ The
Exchange's proposed MIOC Time in Force will operate identically, but
will be available during a slightly different time period, which is
attributable to NASDAQ's Opening Cross process.\6\

Specifically, the Exchange's MIOC Time in Force will be available for
entry and potential execution from 9:30 a.m. through 4:00 p.m. Eastern
Time, whereas NASDAQ's MIOC Time in Force is available for entry and
potential execution beginning after the completion of the NASDAQ
Opening Cross \7\ through 4:00 p.m. Eastern Time.\8\ Unlike NASDAQ, PSX
does not have an opening cross process, but rather opens for Regular
Market Hours trading at 9:30 a.m. Eastern Time.\9\ Otherwise, the
Exchange's proposed MIOC Time in Force will operate identically to
NASDAQ's.
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    \5\ See Securities Exchange Act Release No. 54155 (July 16
[sic], 2006), 71 FR 41291 (July 20, 2006)(SR-NASDAQ-2006-001); see
also NASDAQ Rule 4751(h)(5).
    \6\ See NASDAQ Rule 4752.
    \7\ NASDAQ's Opening Cross begins at 9:30 a.m. Eastern Time and
market hours trading commences when the Opening Cross concludes. See
NASDAQ Rule 4752(d).
    \8\ The Exchange notes that NASDAQ recently provided the
Commission notice of a proposed immediately effective filing to
simplify handling of NASDAQ MIOC-designated orders by no longer
accepting such orders prior to the completion of the NASDAQ Opening
Cross. See SR-NASDAQ-2015-11P.
    \9\ The System is opened for order entry at 8:00 a.m. Eastern
Time and begins to process each order in accordance with its
characteristics immediately. All trades executed prior to 9:30 a.m.
shall be automatically appended with the ``.T'' modifier. See Rule
3302.
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    The Exchange is also proposing to modify the processing of orders
designated as Good-til-market close (``GTMC'').\10\ As noted above, the
Exchange currently has a GTMC Time in Force, which allows an order
designated as such to be executed from 8:00 a.m. to 4:00 p.m. Eastern
Time. GTMC-designated orders entered after 4:00 p.m. Eastern Time,
however, are converted to a Time in Force of SIOC. In lieu of
converting such orders, the Exchange is proposing to no longer accept
GTMC orders for execution after 4:00 p.m. Eastern Time. As a
consequence, the Exchange is adding rule text to the rule noting the
GTMC orders entered after 4:00 p.m. Eastern Time will not be accepted
and is deleting text concerning conversion of the order. The Exchange
notes that NASDAQ recently made similar changes to its GTMC Time in
Force, whereby it will no longer accept GTMC-designated orders after
initiation of its Lockdown Period, the time at which no further orders
for participation in the NASDAQ Closing Cross or the continuous market
will be accepted, which begins at 4:00 p.m. Eastern Time.\11\
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    \10\ See Rule 4751(h)(8).
    \11\ See Securities Exchange Act Release No. 73943 (December 24,
2014), 80 FR 69 (January 2, 2015) (SR-NASDAQ-2014-123); see also
Securities Exchange Act Release No. 74342 (February 20, 2015), 80 FR
10562 (February 26, 2015) (SR-NASDAQ-2015-014) (delaying
implementation of the changes made by SR-NASDAQ-2014-123 until April
13, 2015).
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2. Statutory Basis
    PHLX believes that the proposed rule changes are consistent with
the provisions of Section 6 of the Act,\12\ in general, and with
Section 6(b)(5) of the Act,\13\ in particular, in that the proposal is
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest; and also in
that it is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. The Exchange believes that
offering market participants with an additional Time in Force, which
NASDAQ has had since 2006, is indicative of the Exchange's maturation
as an equities market. Allowing Exchange participants the ability to
more precisely select when their order may be executed removes
impediments and perfects the mechanism of the market because it
benefits all market participants and ensures that PHLX is able to
compete with other market venues by providing similar tools and
functionality. This functionality is nearly identical to the MIOC Time
in Force that has been available on NASDAQ since 2006 and is well known
to its market participants. Lastly, offering MIOC to PSX market
participants raises no issues concerning unfair discrimination as the
new Time in Force is available to all PSX market participants.
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    \12\ 15 U.S.C. 78f.
    \13\ 15 U.S.C. 78f(b)(4) [sic] and (5).
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    The proposed changes to the processing of GTMC-designated orders
further these objectives because the changes simplify processing of
such orders when entered after the close of Regular Market Hours.
Rather than converting GTMC-designated orders to an order with a
different time-in-force if entered after the market close, the Exchange
will no longer accept them after 4:00 p.m. Eastern Time, which is
consistent with a market participant's intent to execute during the
period from 8:00 a.m. and 4:00 p.m. To the extent a member firm would
like to participate in post-market hours trading, it may enter a new
order eligible to participate in post-market trading. Moreover,
simplifying the processing of GTMC-designated orders will remove
complication in the handling of such orders, thereby further improving
the operation of the market.

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

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. Specifically,
the Exchange believes that the proposal will enhance PHLX's
competitiveness by providing its market participants with an additional
option to limit when their orders may be executed. As discussed above,
the MIOC Time in Force is available on NASDAQ, and providing it on PSX
will allow PHLX to compete with NASDAQ and any other market venue that
provides similar Time in Force functionality. This may, in turn,
increase the extent of liquidity available on PSX and increase its
ability to compete with other execution venues to attract orders that
are seeking immediate execution during Regular Market Hours. The
Exchange further believes that the introduction of the MIOC Time in
Force will not impair in any manner the ability of market participants
or other execution venues to compete. The proposed changes to GTMC Time
in Force are designed to promote consistency and stability in the
closing process and in the handling of orders after Regular Market
Hours has [sic] ended. Such changes do not place a burden on
competition between market participants as the changes are applied
consistently to all PSX market participants. Moreover, the proposed
changes may foster competition among exchanges and other markets, to
the extent they make PSX a more attractive venue to market
participants.

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

    No written comments were either solicited or received.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \14\ and Rule 19b-4(f)(6) thereunder.\15\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative

for 30 days from the date on which it was filed, or such shorter time
as the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \16\ and Rule 19b-
4(f)(6)(iii) thereunder.\17\ The Exchange represents that this proposed
rule change will be implemented during the Second Quarter of 2015
subject to the issuance of an Equity Trader Alert that will provide at
least 30 days of notice prior to the operative date for the respective
amendments to Rule 4751(h).
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    \14\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's intent to file the proposed rule change, along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-Phlx-2015-32 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2015-32. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal offices 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-Phlx-2015-32,
and should be submitted on or before May 7, 2015.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-07851 Filed 4-6-15; 8:45 am]
BILLING CODE 8011-01-P


Chapter 43.21B RCW
Environmental hearings office  --  pollution control hearings board

Chapter Listing | RCW Dispositions

RCW Sections
43.21B.001
Definitions.
43.21B.005
Environmental hearings office created -- Composition -- Administrative appeals judges -- Contracts for services.
43.21B.010
Pollution control hearings board created -- Purpose.
43.21B.020
Members -- Qualifications -- Appointment.
43.21B.030
Members -- Terms -- Filling vacancies, term.
43.21B.040
Removal of member, procedure -- As disqualification for reappointment.
43.21B.050
Governor to determine basis for operation -- Compensation if part-time basis, limitation -- Reimbursement of travel expenses.
43.21B.060
Restrictions upon conduct while member and upon termination of membership.
43.21B.080
Chair, biennial election of.
43.21B.090
Principal office -- Quorum -- Hearings -- Board powers and duties.
43.21B.100
Board to make findings of fact and written decisions on each case considered -- Effective upon signing and filing -- Public information.
43.21B.110
Pollution control hearings board jurisdiction.
43.21B.130
Administrative procedure act to apply to appeal of board rules and regulations -- Scope of board action on decisions and orders of others.
43.21B.160
Appeals -- Generally.
43.21B.170
Proceedings conducted in accordance with published board rules and regulations.
43.21B.180
Judicial review -- Director's right of review of decisions pursuant to RCW 43.21B.110.
43.21B.190
Judicial review -- Appeal from board's order.
43.21B.230
Appeals of agency actions.
43.21B.240
Department -- Air authorities -- Adjudicative proceedings, may not conduct.
43.21B.250
Challenges to consistency of rules adopted pursuant to RCW 43.21C.110 and 43.21C.120 -- Procedure -- Finality.
43.21B.260
Regulations and amendments of activated air pollution control authorities -- Filing with hearings board authorized -- Evidence.
43.21B.300
Penalty procedures.
43.21B.305
Appeals involving penalties of fifteen thousand dollars or less.
43.21B.310
Appeal of orders, permits, and licenses.
43.21B.320
Stays of orders.
43.21B.330
Summary procedures.
43.21B.900
Savings -- Other powers and duties not affected -- Permits, standards not affected -- Severability -- Effective date -- 1970 ex.s. c 62.

43.21B.001
Definitions.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

     (1) "Business days" means Monday through Friday exclusive of any state or federal holiday.

     (2) "Date of receipt" means:

     (a) Five business days after the date of mailing; or

     (b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt, however, may not exceed forty-five days from the date of mailing.

     (3) "Department" means the department of ecology.

     (4) "Director" means the director of ecology.
[2004 c 204 § 1; 1987 c 109 § 4.]
Notes:
     Purpose -- 1987 c 109: "The purposes of this act are to:

     (1) Simplify and clarify existing statutory and administrative procedures for appealing decisions of the department of ecology and air pollution control authorities in order to (a) expedite those appeals, (b) insure that those appeals are conducted with a minimum of expense to save state and private resources, and (c) allow the appellate authorities to decide cases on their merits rather than on procedural technicalities.

     (2) Clarify existing statutes relating to the environment but which refer to numerous agencies no longer in existence.

     (3) Eliminate provisions no longer effective or meaningful and abbreviate statutory provisions which are unnecessarily long and confusing." [1987 c 109 § 1.]
     Short title -- 1987 c 109: "This act may be referred to as the "ecology procedures simplification act of 1987." [1987 c 109 § 2.]
     Construction -- 1987 c 109: "Unless otherwise specifically intended, this act shall not be construed to change existing substantive or procedural law; it should only clarify and standardize existing procedures." [1987 c 109 § 3.]
     Rules -- 1987 c 109: "The department of ecology shall amend its rules by June 30, 1988, to effect the purposes of this act." [1987 c 109 § 160.]
     Severability -- 1987 c 109: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 109 § 161.]
     Captions -- 1987 c 109: "As used in this act, bill headings and section captions constitute no part of the law." [1987 c 109 § 162.]

43.21B.005
Environmental hearings office created  --  Composition  --  Administrative appeals judges  --  Contracts for services.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2617-S2.SL) ***

(1) There is created an environmental hearings office of the state of Washington. The environmental hearings office shall consist of the pollution control hearings board created in RCW 43.21B.010, the forest practices appeals board created in RCW 76.09.210, the shorelines hearings board created in RCW 90.58.170, the environmental and land use hearings board created in chapter 43.21L RCW, and the hydraulic appeals board created in *RCW 77.55.170. The chair of the pollution control hearings board shall be the chief executive officer of the environmental hearings office. Membership, powers, functions, and duties of the pollution control hearings board, the forest practices appeals board, the shorelines hearings board, and the hydraulic appeals board shall be as provided by law.

     (2) The chief executive officer of the environmental hearings office may appoint an administrative appeals judge who shall possess the powers and duties conferred by the administrative procedure act, chapter 34.05 RCW, in cases before the boards comprising the office. The administrative appeals judge shall have a demonstrated knowledge of environmental law, and shall be admitted to the practice of law in the state of Washington. Additional administrative appeals judges may also be appointed by the chief executive officer on the same terms. Administrative appeals judges shall not be subject to chapter 41.06 RCW.

     (3) The administrative appeals judges appointed under subsection (2) of this section are subject to discipline and termination, for cause, by the chief executive officer. Upon written request by the person so disciplined or terminated, the chief executive officer shall state the reasons for such action in writing. The person affected has a right of review by the superior court of Thurston county on petition for reinstatement or other remedy filed within thirty days of receipt of such written reasons.

     (4) The chief executive officer may appoint, discharge, and fix the compensation of such administrative or clerical staff as may be necessary.

     (5) The chief executive officer may also contract for required services.
[2003 c 393 § 18; 2003 c 39 § 22; 1999 c 125 § 1; 1990 c 65 § 1; 1986 c 173 § 3; 1979 ex.s. c 47 § 2.]
Notes:
     Reviser's note: *(1) RCW 77.55.170 was recodified as RCW 77.55.301 pursuant to 2005 c 146 § 1001.

     (2) This section was amended by 2003 c 39 § 22 and by 2003 c 393 § 18, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
     Implementation -- Effective date -- 2003 c 393: See RCW 43.21L.900 and 43.21L.901.
     Intent -- 1979 ex.s. c 47: "It is the intent of the legislature to consolidate administratively the pollution control hearings board, the forest practices appeals board, and the shorelines hearings board into one agency of state government with minimum disturbance to these boards. It is not the intent of the legislature in consolidating these boards to change the existing membership of these boards.

     All full-time employees of the pollution control hearings board and the full-time employee of the forest practices appeals board shall be full-time employees of the environmental hearings office without loss of rights. Property and obligations of these boards and the shorelines hearings board shall be property and obligations of the environmental hearings office." [1979 ex.s. c 47 § 1.]

43.21B.010
Pollution control hearings board created  --  Purpose.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

There is hereby created within the environmental hearings office a pollution control hearings board of the state of Washington.

     The purpose of the pollution control hearings board is to provide for a more expeditious and efficient disposition of appeals with respect to the decisions and orders of the department and director and with respect to all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW.
[1979 ex.s. c 47 § 3; 1970 ex.s. c 62 § 31.]
Notes:
     Intent -- 1979 ex.s. c 47: See note following RCW 43.21B.005.

43.21B.020
Members  --  Qualifications  --  Appointment.
The hearings board shall consist of three members qualified by experience or training in pertinent matters pertaining to the environment, and at least one member of the hearings board shall have been admitted to practice law in this state and engaged in the legal profession at the time of his or her appointment. The hearings board shall be appointed by the governor with the advice and consent of the senate, and no more than two of whom at the time of appointment or during their term shall be members of the same political party.
[2009 c 549 § 5091; 1970 ex.s. c 62 § 32.]

43.21B.030
Members  --  Terms  --  Filling vacancies, term.
Members of the hearings board shall be appointed for a term of six years and until their successors are appointed and have qualified. In case of a vacancy, it shall be filled by appointment by the governor for the unexpired portion of the term in which said vacancy occurs: PROVIDED, That the terms of the first three members of the hearings board shall be staggered so that one member shall be appointed to serve until July 1, 1972, one member until July 1, 1974, and one member until July 1, 1976.
[1970 ex.s. c 62 § 33.]

43.21B.040
Removal of member, procedure  --  As disqualification for reappointment.
Any member of the hearings board may be removed for inefficiency, malfeasance and misfeasance in office, under specific written charges filed by the governor, who shall transmit such written charges to the member accused and to the chief justice of the supreme court. The chief justice shall thereupon designate a tribunal composed of three judges of the superior court to hear and adjudicate the charges. Such tribunal shall fix the time of the hearing which shall be public, and the procedure for the hearing, and the decision of such tribunal shall be final and not subject to review by the supreme court. Removal of any member of the hearings board by the tribunal shall disqualify such member for reappointment.
[1970 ex.s. c 62 § 34.]

43.21B.050
Governor to determine basis for operation  --  Compensation if part-time basis, limitation  --  Reimbursement of travel expenses.
The hearings board shall operate on either a part-time or a full-time basis, as determined by the governor. If it is determined that the hearings board shall operate on a full-time basis, each member of the hearings board shall receive an annual salary to be determined by the governor pursuant to RCW 43.03.040. If it is determined the hearings board shall operate on a part-time basis, each member of the hearings board shall receive compensation on the basis of seventy-five dollars for each day spent in performance of his or her duties but such compensation shall not exceed ten thousand dollars in a fiscal year. Each hearings board member shall receive reimbursement for travel expenses incurred in the discharge of his or her duties in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended.
[2009 c 549 § 5092; 1975-'76 2nd ex.s. c 34 § 101; 1970 ex.s. c 62 § 35.]
Notes:
     Effective date -- Severability -- 1975-'76 2nd ex.s. c 34: See notes following RCW 2.08.115.

43.21B.060
Restrictions upon conduct while member and upon termination of membership.
Each member of the hearings board: (1) Shall not be a candidate for nor hold any other public office or trust, and shall not engage in any occupation or business interfering with or inconsistent with his or her duty as a member of the hearings board, nor shall he or she serve on or under any committee of any political party; and (2) shall not for a period of one year after the termination of his or her membership on the hearings board, act in a representative capacity before the hearings board on any matter.
[2009 c 549 § 5093; 1970 ex.s. c 62 § 36.]

43.21B.080
Chair, biennial election of.
The hearings board shall as soon as practicable after the initial appointment of the members thereof, meet and elect from among its members a chair, and shall at least biennially thereafter meet and elect such a chair.
[2009 c 549 § 5094; 1970 ex.s. c 62 § 38.]

43.21B.090
Principal office  --  Quorum  --  Hearings  --  Board powers and duties.
The principal office of the hearings board shall be at the state capitol, but it may sit or hold hearings at any other place in the state. A majority of the hearings board shall constitute a quorum for making orders or decisions, promulgating rules and regulations necessary for the conduct of its powers and duties, or transacting other official business, and may act though one position of the hearings board be vacant. One or more members may hold hearings and take testimony to be reported for action by the hearings board when authorized by rule or order of the hearings board. The hearings board shall perform all the powers and duties specified in this chapter or as otherwise provided by law.
[1990 c 65 § 2; 1974 ex.s. c 69 § 1; 1970 ex.s. c 62 § 39.]

43.21B.100
Board to make findings of fact and written decisions on each case considered  --  Effective upon signing and filing  --  Public information.
The hearings board shall make findings of fact and prepare a written decision in each case decided by it, and such findings and decisions shall be effective upon being signed by two or more members of the hearings board and upon being filed at the hearings board's principal office, and shall be open for public inspection at all reasonable times.
[1970 ex.s. c 62 § 40.]

43.21B.110
Pollution control hearings board jurisdiction. (Effective until June 30, 2019.)

     *** CHANGE IN 2010 *** (SEE 6634-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, and 90.56.330.

     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

     (c) A final decision by the department or director made under chapter 183, Laws of 2009.

     (d) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

     (e) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

     (f) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

     (g) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

     (h) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

     (i) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

     (2) The following hearings shall not be conducted by the hearings board:

     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

     (c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

     (d) Hearings conducted by the department to adopt, modify, or repeal rules.

     (e) Appeals of decisions by the department as provided in chapter 43.21L RCW.

     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.
[2009 c 456 § 16; 2009 c 332 § 18; 2009 c 183 § 17; 2003 c 393 § 19; 2001 c 220 § 2. Prior: 1998 c 262 § 18; 1998 c 156 § 8; 1998 c 36 § 22; 1993 c 387 § 22; prior: 1992 c 174 § 13; 1992 c 73 § 1; 1989 c 175 § 102; 1987 c 109 § 10; 1970 ex.s. c 62 § 41.]
Notes:
     Reviser's note: This section was amended by 2009 c 183 § 17, 2009 c 332 § 18, and by 2009 c 456 § 16, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
     Application -- 2009 c 332: See note following RCW 90.03.110.
     Expiration date -- 2009 c 183: See note following RCW 90.92.010.
     Implementation -- Effective date -- 2003 c 393: See RCW 43.21L.900 and 43.21L.901.
     Intent -- 2001 c 220: "The legislature intends to assure that appeals of department of ecology decisions regarding changes or transfers of water rights that are the subject of an ongoing general adjudication of water rights are governed by an appeals process that is efficient and eliminates unnecessary duplication, while fully preserving the rights of all affected parties. The legislature intends to address only the judicial review process for certain decisions of the pollution control hearings board when a general adjudication is being actively litigated. The legislature intends to fully preserve the role of the pollution control hearings board, except as specifically provided in this act." [2001 c 220 § 1.]
     Construction -- 2001 c 220: "Nothing in this act shall be construed to affect or modify any treaty or other federal rights of an Indian tribe, or the rights of any federal agency or other person or entity arising under federal law. Nothing in this act is intended or shall be construed as affecting or modifying any existing right of a federally recognized Indian tribe to protect from impairment its federally reserved water rights in federal court." [2001 c 220 § 6.]
     Effective date -- 2001 c 220: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2001]." [2001 c 220 § 7.]
     Effective date -- 1998 c 262: See RCW 90.64.900.
     Intent -- 1998 c 36: See RCW 15.54.265.
     Short title -- 1998 c 36: See note following RCW 15.54.265.
     Effective date -- 1993 c 387: See RCW 18.104.930.
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905.
     Effective date -- 1989 c 175: See note following RCW 34.05.010.
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.
Order for compliance with oil spill contingency or prevention plan not subject to review by pollution control hearings board: RCW 90.56.270.

43.21B.110
Pollution control hearings board jurisdiction. (Effective June 30, 2019.)

     *** CHANGE IN 2010 *** (SEE 6634-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, and 90.56.330.

     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

     (c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

     (d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

     (e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

     (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

     (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

     (h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

     (2) The following hearings shall not be conducted by the hearings board:

     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

     (c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

     (d) Hearings conducted by the department to adopt, modify, or repeal rules.

     (e) Appeals of decisions by the department as provided in chapter 43.21L RCW.

     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.
[2009 c 456 § 16; 2009 c 332 § 18; 2003 c 393 § 19; 2001 c 220 § 2. Prior: 1998 c 262 § 18; 1998 c 156 § 8; 1998 c 36 § 22; 1993 c 387 § 22; prior: 1992 c 174 § 13; 1992 c 73 § 1; 1989 c 175 § 102; 1987 c 109 § 10; 1970 ex.s. c 62 § 41.]
Notes:
     Reviser's note: This section was amended by 2009 c 332 § 18 and by 2009 c 456 § 16, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
     Application -- 2009 c 332: See note following RCW 90.03.110.
     Implementation -- Effective date -- 2003 c 393: See RCW 43.21L.900 and 43.21L.901.
     Intent -- 2001 c 220: "The legislature intends to assure that appeals of department of ecology decisions regarding changes or transfers of water rights that are the subject of an ongoing general adjudication of water rights are governed by an appeals process that is efficient and eliminates unnecessary duplication, while fully preserving the rights of all affected parties. The legislature intends to address only the judicial review process for certain decisions of the pollution control hearings board when a general adjudication is being actively litigated. The legislature intends to fully preserve the role of the pollution control hearings board, except as specifically provided in this act." [2001 c 220 § 1.]
     Construction -- 2001 c 220: "Nothing in this act shall be construed to affect or modify any treaty or other federal rights of an Indian tribe, or the rights of any federal agency or other person or entity arising under federal law. Nothing in this act is intended or shall be construed as affecting or modifying any existing right of a federally recognized Indian tribe to protect from impairment its federally reserved water rights in federal court." [2001 c 220 § 6.]
     Effective date -- 2001 c 220: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2001]." [2001 c 220 § 7.]
     Effective date -- 1998 c 262: See RCW 90.64.900.
     Intent -- 1998 c 36: See RCW 15.54.265.
     Short title -- 1998 c 36: See note following RCW 15.54.265.
     Effective date -- 1993 c 387: See RCW 18.104.930.
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905.
     Effective date -- 1989 c 175: See note following RCW 34.05.010.
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.
Order for compliance with oil spill contingency or prevention plan not subject to review by pollution control hearings board: RCW 90.56.270.

43.21B.130
Administrative procedure act to apply to appeal of board rules and regulations  --  Scope of board action on decisions and orders of others.
The administrative procedure act, chapter 34.05 RCW, shall apply to the appeal of rules and regulations adopted by the board to the same extent as it applied to the review of rules and regulations adopted by the directors and/or boards or commissions of the various departments whose powers, duties and functions were transferred by section 6, chapter 62, Laws of 1970 ex. sess. to the department. All other decisions and orders of the director and all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW shall be subject to review by the hearings board as provided in this chapter.
[1990 c 65 § 3; 1970 ex.s. c 62 § 43.]

43.21B.160
Appeals  --  Generally.
In all appeals, the hearings board shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies in chapter 34.05 RCW, the Administrative Procedure Act. The hearings board, and each member thereof, shall be subject to all duties imposed upon, and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings. In the case of appeals within the jurisdiction of the hearings board, the hearings board, or any member thereof, may obtain such assistance, including the making of field investigations, from the staff of the director as the hearings board, or any member thereof, may deem necessary or appropriate. Any communication, oral or written, from the staff of the director to the hearings board shall be presented only in an open hearing.
[1995 c 382 § 2; 1990 c 65 § 5; 1989 c 175 § 103; 1974 ex.s. c 69 § 3; 1970 ex.s. c 62 § 46.]
Notes:
     Effective date -- 1989 c 175: See note following RCW 34.05.010.

43.21B.170
Proceedings conducted in accordance with published board rules and regulations.
All proceedings before the hearings board or any of its members shall be conducted in accordance with such rules of practice and procedure as the hearings board may prescribe. The hearings board shall publish such rules and arrange for the reasonable distribution thereof.
[1995 c 382 § 3; 1970 ex.s. c 62 § 47.]

43.21B.180
Judicial review  --  Director's right of review of decisions pursuant to RCW 43.21B.110.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

Judicial review of a decision of the hearings board may be obtained only pursuant to RCW 34.05.510 through 34.05.598. The director shall have the same right of review from a decision made pursuant to RCW 43.21B.110 as does any person.
[1994 c 253 § 6; 1989 c 175 § 104; 1970 ex.s. c 62 § 48.]
Notes:
     Effective date -- 1989 c 175: See note following RCW 34.05.010.

43.21B.190
Judicial review  --  Appeal from board's order.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

After the final decision and order of the hearings board has been received by the parties, any party aggrieved by the decision and order of the hearings board may appeal to the superior court within thirty days from the date of receipt of the final decision and order.
[2004 c 204 § 2; 1995 c 382 § 4; 1994 c 253 § 7; 1988 c 202 § 43; 1970 ex.s. c 62 § 49.]
Notes:
     Severability -- 1988 c 202: See note following RCW 2.24.050.

43.21B.230
Appeals of agency actions.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

Consistent with RCW 43.21B.110, any person having received notice of denial of a petition, a notice of determination, or notice of an order made by the department may appeal to the hearings board, within thirty days from the date of receipt of the notice of such denial, order, or determination by the appealing party. The appeal shall be perfected by serving a copy of the notice of appeal upon the department or air pollution authority established pursuant to chapter 70.94 RCW, as the case may be, within the time specified herein and by filing the original thereof with proof of service with the clerk of the hearings board.
[2004 c 204 § 3; 1997 c 125 § 2; 1994 c 253 § 8; 1990 c 65 § 6; 1970 ex.s. c 62 § 53.]

43.21B.240
Department  --  Air authorities  --  Adjudicative proceedings, may not conduct.
The department and air authorities shall not have authority to hold adjudicative proceedings pursuant to the Administrative Procedure Act, chapter 34.05 RCW. Such hearings shall be held by the pollution control hearings board.
[1989 c 175 § 105; 1987 c 109 § 9; 1970 ex.s. c 62 § 54.]
Notes:
     Effective date -- 1989 c 175: See note following RCW 34.05.010.
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.

43.21B.250
Challenges to consistency of rules adopted pursuant to RCW 43.21C.110 and 43.21C.120  --  Procedure  --  Finality.
(1) All challenges in regard to the consistency of the rules adopted pursuant to RCW 43.21C.120 and with the rules and guidelines adopted pursuant to RCW 43.21C.110 shall be initiated by filing a petition for review with the pollution control hearings board in accordance with rules of practice and procedures promulgated by the hearings board.

     (2) All challenges to the hearings board provided under this section shall be decided on the basis of conformance of rules, with the applicable rules and guidelines adopted pursuant to RCW 43.21C.110. The board may in its discretion require briefs, testimony, and oral arguments.

     (3) The decisions of the hearings board authorized under this section shall be final.
[1974 ex.s. c 179 § 9.]
Notes:
     Purpose -- 1974 ex.s. c 179: See note following RCW 43.21C.080.
     Severability -- 1974 ex.s. c 179: See RCW 43.21C.910.

43.21B.260
Regulations and amendments of activated air pollution control authorities  --  Filing with hearings board authorized  --  Evidence.
Activated air pollution control authorities, established under chapter 70.94 RCW, may file certified copies of their regulations and amendments thereto with the pollution control hearings board of the state of Washington, and the hearings board shall take judicial note of the copies so filed and the said regulations and amendments shall be received and admitted, by reference, in all hearings before the board, as prima facie evidence that such regulations and amendments on file are in full force and effect.
[1974 ex.s. c 69 § 5.]

43.21B.300
Penalty procedures.

     *** CHANGE IN 2010 *** (SEE 6634-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.95.315, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, and 90.56.330 and chapter 90.76 RCW shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the department or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department or authority may remit or mitigate the penalty upon whatever terms the department or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

     (2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority thirty days after the date of receipt by the person penalized of the notice imposing the penalty or thirty days after the date of receipt of the notice of disposition of the application for relief from penalty.

     (3) A penalty shall become due and payable on the later of:

     (a) Thirty days after receipt of the notice imposing the penalty;

     (b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or

     (c) Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.

     (4) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

     (5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account created by RCW 70.105.180, RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 90.76.080, which shall be credited to the underground storage tank account created by RCW 90.76.100.
[2009 c 456 § 17; 2009 c 178 § 2; 2007 c 147 § 9; 2004 c 204 § 4; 2001 c 36 § 2; 1993 c 387 § 23; 1992 c 73 § 2; 1987 c 109 § 5.]
Notes:
     Reviser's note: This section was amended by 2009 c 178 § 2 and by 2009 c 456 § 17, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
     Effective date -- 1993 c 387: See RCW 18.104.930.
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905.
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.

43.21B.305
Appeals involving penalties of fifteen thousand dollars or less.
In an appeal that involves a penalty of fifteen thousand dollars or less, the appeal may be heard by one member of the board, whose decision shall be the final decision of the board. The board shall define by rule alternative procedures to expedite appeals involving penalties of fifteen thousand dollars or less. These alternatives may include: Mediation, upon agreement of all parties; submission of testimony by affidavit; or other forms that may lead to less formal and faster resolution of appeals.
[2005 c 34 § 2; 1994 c 253 § 5.]

43.21B.310
Appeal of orders, permits, and licenses.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) Except as provided in RCW 90.03.210(2), any order issued by the department or local air authority pursuant to RCW 43.27A.190, 70.94.211, 70.94.332, 70.95.315, 70.105.095, 86.16.020, 88.46.070, 90.46.250, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after the date of receipt of the order. Except as provided under chapter 70.105D RCW and RCW 90.03.210(2), this is the exclusive means of appeal of such an order.

     (2) The department or the authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal.

     (3) At any time during the pendency of an appeal of such an order to the board, the appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay of the order or for the removal thereof.

     (4) Any appeal must contain the following in accordance with the rules of the hearings board:

     (a) The appellant's name and address;

     (b) The date and docket number of the order, permit, or license appealed;

     (c) A description of the substance of the order, permit, or license that is the subject of the appeal;

     (d) A clear, separate, and concise statement of every error alleged to have been committed;

     (e) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and

     (f) A statement setting forth the relief sought.

     (5) Upon failure to comply with any final order of the department, the attorney general, on request of the department, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order. The air authorities may bring similar actions to enforce their orders.

     (6) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that it may be appealed only by filing an appeal with the hearings board and serving it on the department within thirty days of the date of receipt.
[2009 c 456 § 18; 2009 c 178 § 3; 2004 c 204 § 5. Prior: 2001 c 220 § 4; 2001 c 36 § 3; 1992 c 73 § 3; 1989 c 2 § 14 (Initiative Measure No. 97, approved November 8, 1988); (1987 3rd ex.s. c 2 § 49 repealed by 1989 c 2 § 24, effective March 1, 1989); 1987 c 109 § 6.]
Notes:
     Reviser's note: This section was amended by 2009 c 178 § 3 and by 2009 c 456 § 18, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
     Intent -- Construction -- Effective date -- 2001 c 220: See notes following RCW 43.21B.110.
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905.
     Short title -- Construction -- Existing agreements -- Effective date -- Severability -- 1989 c 2: See RCW 70.105D.900 and 70.105D.910 through 70.105D.921, respectively.
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.

43.21B.320
Stays of orders.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) A person appealing to the hearings board an order of the department or an authority, not stayed by the issuing agency, may obtain a stay of the effectiveness of that order only as set forth in this section.

     (2) An appealing party may request a stay by including such a request in the appeal document, in a subsequent motion, or by such other means as the rules of the hearings board shall prescribe. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which request is based. The hearings board shall hear the request for a stay as soon as possible. The hearing on the request for stay may be consolidated with the hearing on the merits.

     (3) The applicant may make a prima facie case for stay if the applicant demonstrates either a likelihood of success on the merits of the appeal or irreparable harm. Upon such a showing, the hearings board shall grant the stay unless the department or authority demonstrates either (a) a substantial probability of success on the merits or (b) likelihood of success on the merits and an overriding public interest which justifies denial of the stay.

     (4) Unless otherwise stipulated by the parties, the hearings board, after granting or denying an application for a stay, shall expedite the hearing and decision on the merits.

     (5) Any party or other person aggrieved by the grant or denial of a stay by the hearings board may petition the superior court for Thurston county for review of that decision pursuant to chapter 34.05 RCW pending the appeal on the merits before the board. The superior court shall expedite its review of the decision of the hearings board.
[1987 c 109 § 7.]
Notes:
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.

43.21B.330
Summary procedures.
The hearings board shall develop procedures for summary procedures, consistent with the rules of civil procedure for superior court on summary judgment, to decide cases before it. Such procedures may include provisions for determinations without an oral hearing or hearing by telephonic means.
[1987 c 109 § 8.]
Notes:
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001.

43.21B.900
Savings  --  Other powers and duties not affected  --  Permits, standards not affected  --  Severability  --  Effective date  --  1970 ex.s. c 62.
See notes following RCW 43.21A.010.


[Federal Register Volume 78, Number 48 (Tuesday, March 12, 2013)]
[Notices]
[Pages 15726-15727]
[FR Doc No: 2013-05582]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2013-N-0001]

Cellular, Tissue and Gene Therapies Advisory Committee; Notice of
Meeting

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

    This notice announces a forthcoming meeting of a public advisory
committee of the Food and Drug Administration (FDA). At least one
portion of the meeting will be closed to the public.
    Name of Committee: Cellular, Tissue and Gene Therapies Advisory
Committee.
    General Function of the Committee: To provide advice and
recommendations to the Agency on FDA's regulatory issues.
    Date and Time: The meeting will be held by teleconference on April
17, 2013, from 1:30 p.m. to 5 p.m.
    Location: Rockwall II Building, 5515 Security Lane, Conference Room
1033, Rockville, MD 20852. The public is welcome to attend the meeting
at the specified location where a speakerphone will be provided. Public
participation in the meeting is limited to the use of the speakerphone
in the conference room.
    Contact Person: Gail Dapolito<PHONE_NUMBER>) or Rosanna Harvey
(301-827-1297), Food and Drug Administration, 1401 Rockville Pike (HFM-
71), Rockville, MD 20852, or FDA Advisory Committee Information Line,
1-800-741-8138<PHONE_NUMBER> in the Washington, DC area). A notice in
the Federal Register about last minute modifications that impact a
previously announced advisory committee meeting cannot always be
published quickly enough to provide timely notice. Therefore, you
should always check the Agency's Web site at http://www.fda.gov/AdvisoryCommittees/default.htm and scroll down to the appropriate
advisory committee meeting link, or call the advisory committee
information line to learn about possible modifications before coming to
the meeting.
    Agenda: On April 17, 2013, the committee will meet by
teleconference. In open session, the committee will hear updates of
research programs in the Laboratory of Chemistry, Division of
Therapeutic Proteins, Office of Biotechnology Products, Center for Drug
Evaluation and Research, FDA.
    FDA intends to make background material available to the public no
later than 2 business days before the meeting. If FDA is unable to post
the background material on its Web site prior to the meeting, the
background material will be made publicly available at the location of
the advisory committee meeting, and the background material will be
posted on FDA's Web site after the meeting. Background material is

available at http://www.fda.gov/AdvisoryCommittees/Calendar/default.htm. Scroll down to the appropriate advisory committee meeting
link.
    Procedure: On April 17, 2013, from 1:30 p.m. to from approximately
4 p.m., the meeting is open to the public. Interested persons may
present data, information, or views, orally or in writing, on issues
pending before the committee. Written submissions may be made to the
contact person on or before April 10, 2013. Oral presentations from the
public will be scheduled between approximately 3 p.m. and 4 p.m. Those
individuals interested in making formal oral presentations should
notify the contact person and submit a brief statement of the general
nature of the evidence or arguments they wish to present, the names and
addresses of proposed participants, and an indication of the
approximate time requested to make their presentation on or before
April 2, 2013. Time allotted for each presentation may be limited. If
the number of registrants requesting to speak is greater than can be
reasonably accommodated during the scheduled open public hearing
session, FDA may conduct a lottery to determine the speakers for the
scheduled open public hearing session. The contact person will notify
interested persons regarding their request to speak by April 3, 2013.
    Closed Committee Deliberations: On April 17, 2013, from 4 p.m. to 5
p.m., the meeting will be closed to permit discussion where disclosure
would constitute a clearly unwarranted invasion of personal privacy (5
U.S.C. 552b(c)(6)). The committee will discuss reports of intramural
research programs and make recommendations regarding personnel staffing
decisions.
    Persons attending FDA's advisory committee meetings are advised
that the Agency is not responsible for providing access to electrical
outlets.
    FDA welcomes the attendance of the public at its advisory committee
meetings and will make every effort to accommodate persons with
physical disabilities or special needs. If you require special
accommodations due to a disability, please contact Gail Dapolito at
least 7 days in advance of the meeting.
    FDA is committed to the orderly conduct of its advisory committee
meetings. Please visit our Web site at http://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm111462.htm for procedures
on public conduct during advisory committee meetings.
    Notice of this meeting is given under the Federal Advisory
Committee Act (5 U.S.C. app. 2).

    Dated: March 5, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-05582 Filed 3-11-13; 8:45 am]
BILLING CODE 4160-01-P


[Federal Register Volume 82, Number 204 (Tuesday, October 24, 2017)]
[Notices]
[Pages 49211-49214]
[FR Doc No: 2017-23019]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-N-0278]

Trand Doan Nguyen; Denial of Hearing; Final Debarment Order

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is denying Trang Doan
Nguyen's (Nguyen's) request for a hearing and is issuing an order under
the Federal Food, Drug, and Cosmetic Act (the FD&C Act) debarring
Nguyen for 5 years from providing services in any capacity to a person
that has an approved or pending drug product application. FDA bases
this order on a finding that Nguyen was convicted of a misdemeanor
under Federal law for conduct relating to the development or approval
of a drug product or otherwise relating the regulation of a drug
product under the FD&C Act and that the type of conduct underlying the
conviction undermines the process for the regulation of drugs. In
determining the appropriateness and period of Nguyen's debarment, FDA
has considered the relevant factors listed in the FD&C Act. Nguyen has
failed to file with the Agency information and analyses sufficient to
create a basis for a hearing concerning this action.

DATES: The order is effective October 24, 2017.

ADDRESSES: Any application by Nguyen for special termination of
debarment under section 306(d) of the FD&C Act (application) may be
submitted as follows:

Electronic Submissions

     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. An application
submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because
your application will be made public, you are solely responsible for
ensuring that your application does not include any confidential
information that you or a third party may not wish to be posted, such
as medical information, your or anyone else's Social Security number,
or confidential business information, such as a manufacturing process.
Please note that if you include your name, contact information, or
other information that identifies you in the body of your application,
that information will be posted on https://www.regulations.gov.
     If you want to submit an application with confidential
information that you do not wish to be made available to the public,
submit the application as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For a written/paper application submitted to the Dockets
Management Staff, FDA will post your application, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: Your application must include the Docket No. FDA-
2011-N-0278. An application will be placed in the docket and, unless
submitted as ``Confidential Submissions,'' publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m.
and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit an application with
confidential information that you do not wish to be made publicly
available, submit your application only as a written/paper submission.
You should submit two copies total. One copy will include the
information you claim to be confidential with a heading or cover note
that states ``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The
Agency will review this copy, including the claimed confidential
information, in its consideration of your application. The second copy,
which will have the claimed confidential information redacted/blacked
out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management
Staff. If you do not wish your name and contact information to be made
publicly available, you can provide this

information on the cover sheet and not in the body of your application
and you must identify this information as ``confidential.'' Any
information marked as ``confidential'' will not be disclosed except in
accordance with 21 CFR 10.20 and other applicable disclosure law. For
more information about FDA's posting of comments to public dockets, see
80 FR 56469, September 18, 2015, or access the information at: https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket, go to https://www.regulations.gov
and insert the docket number, found in brackets in the heading of this
document, into the ``Search'' box and follow the prompts and/or go to
the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville,
MD 20852.

FOR FURTHER INFORMATION CONTACT: Nathan R. Sabel, Office of Scientific
Integrity, Food and Drug Administration, 10903 New Hampshire Ave.,
Bldg. 1, Rm. 4218, Silver Spring, MD 20993,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 12, 2008, in the U.S. District Court for the District
of Missouri, Nguyen pled guilty to a misdemeanor for introducing a
misbranded drug into interstate commerce in violation of sections
301(a) and 303(a)(1) of the FD&C Act (21 U.S.C. 331(a) and 333(a)(1)).
The basis for Nguyen's guilty plea was her admission that she
repackaged unapproved versions of the drugs LIPITOR and CELEBREX, some
of which were counterfeit, and relabeled them in a manner that did not
disclose that they were unapproved or that they were counterfeit and
then shipped them to other States. The drugs were misbranded under
section 502(a) of the FD&C Act (21 U.S.C. 352(a)) in that their
labeling was false and misleading.
    Nguyen is subject to debarment based on a finding, under section
306(b)(2)(B)(i)(I) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(i)(I)): (1)
That she was convicted of a misdemeanor under Federal law for conduct
relating to the development or approval of a drug product or otherwise
relating to the regulation of a drug product under the FD&C Act and (2)
that the type of conduct underlying the conviction undermines the
process for the regulation of drugs. By letter dated July 6, 2011, FDA
served Nguyen a notice proposing to debar her for 5 years from
providing services in any capacity to a person having an approved or
pending drug product application and providing an opportunity for
Nguyen to request a hearing. In a letter dated July 29, 2011, Nguyen
requested a hearing on the proposal. In her request for a hearing,
Nguyen acknowledges her conviction under Federal law, as stated by FDA
in the proposal to debar. However, she argues that the proposal to
debar her contains material inaccuracies with respect to certain facts
related to her misdemeanor conviction.
    The Directors of the Office of Scientific Integrity (OSI) reviewed
Nguyen's request for a hearing, as well as the materials offered in
support, and find that Nguyen has not created a basis for a hearing
because hearings will be granted only if there is a genuine and
substantial issue of fact for resolution at a hearing. Hearings will
not be granted on issues of policy or law, on mere allegations,
denials, or general descriptions of positions and contentions, or on
data and information insufficient to justify the factual determination
urged (see 21 CFR 12.24(b)).
    The Director of OSI has considered Nguyen's arguments and concludes
that they are unpersuasive and fail to raise a genuine and substantial
issue of fact requiring a hearing.

II. Arguments

    Nguyen raises a number of arguments in support of her hearing
request. She does not appear, however, to dispute that she is subject
to debarment under section 306(b)(2)(B)(i)(I) of the FD&C Act. As noted
above, to debar Nguyen under section 306(b)(2)(B)(i)(I), FDA must find
both: (1) That Nguyen was convicted of a misdemeanor under Federal law
for conduct relating to the development or approval of a drug product
or otherwise relating the regulation of a drug product under the FD&C
Act and (2) that the type of conduct underlying the conviction
undermines the process for the regulation of drugs. As set forth in the
proposal to debar Nguyen, her Federal misdemeanor conviction involved a
violation of the FD&C Act's requirements for drugs. As a result, the
conduct underlying her conviction both related to the regulation of
drug products under the FD&C Act and undermined the process for the
regulation of drugs. Nguyen does not contradict the findings to that
effect in the proposal to debar and has thus failed to create a
material factual dispute with respect to whether she is subject to
debarment under section 306(b)(2)(B)(i)(I) of the FD&C Act.
    In her request for a hearing, Nguyen argues nonetheless that she is
entitled to a hearing because, in the proposal to debar, FDA relied on
findings that are not supported by the record in determining the
appropriateness and period of debarment under section 306(c)(3) of the
FD&C Act. Under section 306(i) of the FD&C Act, FDA may not take any
action under sections 306(b) or section 306(c) with respect to any
person ``unless [FDA] has issued an order for such action made on the
record after opportunity for agency hearing on disputed issues of
material fact.'' Section 306(c)(3) explicitly requires FDA to consider,
``where applicable,'' certain factors ``[i]n determining the
appropriateness and the period of debarment'' for any permissive
debarment. The proposal to debar Nguyen set forth four applicable
considerations under section 306(c)(3): (1) The nature and seriousness
of her offense under section 306(c)(3)(A); (2) the nature and extent of
management participation in the offense under section 306(c)(3)(B); (3)
the nature and extent of voluntary steps taken to mitigate the impact
on the public under section 306(c)(3)(C); and (4) prior convictions
involving matters within the jurisdiction of FDA under section
306(c)(3)(F) of the FD&C Act. In the proposal, FDA found that the first
three considerations weigh in favor of debarring Nguyen and noted that
the fourth consideration would be treated as a favorable factor for her
because the Agency was unaware of any prior convictions involving
matters within the jurisdiction of FDA.
    Nguyen's challenge to specific findings in the proposal to debar
fails to create a genuine and substantial dispute of fact for
resolution at a hearing with respect to any of the applicable
considerations under section 306(c)(3) of the FD&C Act. In her request
for a hearing, Nguyen argues that the records of her criminal
proceedings do not support certain findings in the proposal to debar.
Specifically, she contends that neither the plea agreement nor the
criminal information to which she pled guilty support the following
findings: (1) That she was ``aware that the drugs [in question] needed
to be relabeled for sale in the United States,'' (2) that some of the
drugs bore labeling in Portuguese before they were relabeled, or (3)
that the conduct underlying her conviction continued for 13 months.
Even after disregarding the findings in the proposal to debar to which
Nguyen objects, we find that she should be debarred for the maximum
period of 5 years.
    Nguyen's factual objections relate primarily to the consideration
of the nature and seriousness of her offense under section 306(c)(3)(A)
of the FD&C

Act. As noted previously, Nguyen pled guilty to a misdemeanor under the
FD&C Act by admitting that she acquired, repackaged, relabeled, and
distributed unapproved prescription drugs in interstate commerce. In
her criminal proceedings, Nguyen also admitted that some of these
unapproved prescription drugs were counterfeit drugs. By definition, a
counterfeit drug is a drug whose container or labeling falsely
describes the manufacturer, processer, packer, or distributer of that
drug (see 21 U.S.C. 331(g)(2)) and thereby can effectively conceal the
actual manufacturer, processer, packer, or distributer from consumers
and government regulators. An unapproved drug in this context is a drug
requiring but lacking FDA approval that is not generally recognized as
safe and effective for its intended use (see 21 U.S.C. 331(g)(1)). As
such, the products that Nguyen admitted to acquiring, repackaging,
relabeling, and further distributing were not simply misbranded in some
technical sense.
    With respect to Nguyen's assertion that her offense was committed
without knowledge, section 306(b)(2)(B)(i) of the FD&C Act specifically
provides for the debarment of individuals convicted of Federal
misdemeanors related to the regulation of drug products under the FD&C
Act. Given that a misdemeanor violation of the FD&C Act itself is a
strict liability offense, meaning an offense that does not require
proof of knowledge as an element of the crime, it stands to reason that
criminal intent is not required to subject an individual to debarment
under section 306(b)(2)(B)(i). As recognized by the U.S. Supreme Court,
an individual who is responsible for the operation of an FDA-regulated
business is also responsible for any violations of the FD&C Act that
arise out of the conduct of the business, whether or not he or she
intends to commit the violations or even knows that the violations have
been committed. (United States v. Park, 421 U.S. 658 (1975); United
States v. Dotterweich, 320 U.S. 277 (1943)). In keeping with the FD&C
Act's purpose of protecting the public from adulterated and misbranded
products, Congress chose to place the burden of protecting the public
on those who manufacture and distribute those products rather than on
consumers, who cannot protect themselves. (Dotterweich, 320 U.S. at
280-81.) Nguyen herself chose to run a business that acquired,
repackaged, relabeled, and further distributed prescription drugs to
consumers who were unable to protect themselves from the unapproved and
counterfeit products that Nguyen admitted to providing them.
    Even though the law subjects Nguyen to permissive debarment as a
responsible corporate officer regardless of her knowledge or intent to
commit the violation, Nguyen has admitted that she personally engaged
in the conduct underlying the violation as a hands-on participant.
Nguyen admitted in her plea that she repackaged the drugs and affixed
labeling to these prescription drugs that did not disclose that the
drugs were counterfeit and not approved by FDA. Nguyen admitted that
she repackaged and affixed this false and misleading labeling to these
prescription drugs and then shipped these drugs in interstate commerce
for eventual use by the unknowing public. In light of these undisputed
and admitted facts, even crediting Nguyen's objections related to her
level of knowledge, the precise language of the product labeling on
some of the drugs she received, and the precise length of time she
committed this offense, these objections do not minimize the nature and
seriousness the conduct Nguyen both committed and admitted. The
proposal to debar alleges that Nguyen's conduct ``created a significant
risk of injury to consumers who were exposed to misbranded drugs and
seriously undermined the integrity of the Agency's regulation of drug
products.'' Because of the uncontested and admitted facts already
discussed, Nguyen's objections, even if taken as true, would not
undermine this conclusion. Therefore, we conclude that the nature and
seriousness of her conduct weighs in favor of debarring Nguyen.
    Having found that the consideration in section 306(c)(3)(A) of the
FD&C Act weighs in favor of debarring Nguyen, we turn to the remaining
three applicable considerations. Nguyen does not dispute the
unfavorable facts in the FDA proposal to debar that relate to the
considerations in sections 306(c)(3)(B) and (C) of the FD&C Act.
Specifically, Nguyen does not dispute the findings in the proposal that
she used a company of which she was the owner and operator, AQ
Pharmaceuticals, Inc., to distribute the unapproved and counterfeit
drugs and that she served in a managerial role in this offense. Nor
does Nguyen contradict the findings in the proposal to debar that she
and her company did not discontinue their illegal conduct until it was
discovered by authorities. In her hearing request, Nguyen does not
point to any voluntary steps taken to mitigate the effect of her
offenses on the public. Thus, the considerations in sections
306(c)(3)(B) and (C) of the FD&C Act regarding Nguyen's management role
and the voluntary steps taken by Nguyen to mitigate the impact of her
offense on the public both weigh in favor of her debarment. Although
Nguyen appears to have no previous criminal convictions related to
matters within the jurisdiction of FDA (see section 306(c)(3)(F) of the
FD&C Act), this consideration alone does not counter to a sufficient
degree the nature and seriousness of the conduct underlying her
misdemeanor conviction, her managerial role in the offense, and the
lack of any voluntary steps taken to mitigate the impact of that
offense of the public, to warrant decreasing the period of debarment
from 5 years.

III. Findings and Order

    Therefore, the Director of OSI, under section 306(b)(1)(B)(i)(I) of
the FD&C Act and under authority delegated to him by the Commissioner
of Food and Drugs, finds that Nguyen has been convicted of a
misdemeanor under Federal law for conduct relating to the development
or approval of a drug product or otherwise relating the regulation of a
drug product under the FD&C Act and that the conduct underlying the
conviction undermines the regulation of drugs. FDA has considered the
relevant factors listed in section 306(c)(3) of the FD&C Act and
determined that a debarment of 5 years is appropriate.
    As a result of the foregoing findings, Nguyen is debarred for 5
years from providing services in any capacity to a person with an
approved or pending drug product application under section 505, 512, or
802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351
of the Public Health Service Act (42 U.S.C. 262), effective (see DATES)
(21 U.S.C. 335a(c)(1)(B) and (c)(2)(A)(iii) and 21 U.S.C. 321(dd)). Any
person with an approved or pending drug product application, who
knowingly uses the services of Nguyen, in any capacity during her
period of debarment, will be subject to civil money penalties. If
Nguyen, during her period of debarment, provides services in any
capacity to a person with an approved or pending drug product
application, she will be subject to civil money penalties. In addition,
FDA will not accept or review any abbreviated new drug applications
submitted by or with the assistance of Nguyen during her period of
debarment.

    Dated: October 19, 2017.
G. Matthew Warren,
Director, Office of Scientific Integrity.
[FR Doc. 2017-23019 Filed 10-23-17; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register: March 11, 2009 (Volume 74, Number 46)]
[Notices]
[Page 10642-10644]
[DOCID:fr11mr09-160]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59494; File No. SR-SCCP-2009-01]

Self-Regulatory Organizations; Stock Clearing Corporation of
Philadelphia; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend the Certificate of Incorporation of The
NASDAQ OMX Group, Inc.

March 3, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ notice is hereby given that on February 17, 2009, Stock
Clearing Corporation of Philadelphia (``SCCP'') filed with the
Securities and Exchange Commission (``Commission'') the proposed rule
change described in Items I, II, and III below, which items have been
prepared primarily by SCCP. SCCP filed the proposed rule change
pursuant to Section 19(b)(3)(A)(iii) of the Act \2\ and Rule 19b-
4(f)(3) thereunder \3\ so that the proposal was effective upon filing
with the Commission. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested parties.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \3\ 17 CFR 240.19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    SCCP is filing this proposed rule change with regard to proposed
changes to the Restated Certificate of Incorporation (``Certificate'')
of its parent corporation, The NASDAQ OMX Group, Inc. (``NASDAQ OMX'').
The proposed rule change will be implemented as soon as practicable
following filing with the Commission. The text of the proposed rule
change is available at http://www.nasdaqtrader.com/
Trader.aspx?id=SCCPApprovedRules

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, SCCP 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. SCCP has prepared summaries, set forth in sections (A),
(B), and (C) below, of the most significant aspects of these
statements.\4\
---------------------------------------------------------------------------

    \4\ The Commission has modified the text of the summaries
prepared by SCCP.
---------------------------------------------------------------------------

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

1. Purpose
    NASDAQ OMX is proposing to make amendments to its Certificate. As
provided in Articles XI and XII of the NASDAQ OMX By-Laws, proposed
amendments to the Certificate are to be reviewed by the Board of
Directors of each self-regulatory subsidiary of NASDAQ OMX, and if any
such proposed amendment must be filed with or filed with and approved
by the Commission under Section 19 of the Act and the rules promulgated
thereunder before such amendment may be effective, then such amendment
shall not be effective until filed with or filed with and approved by
the Commission as the case may be. The governing boards of the NASDAQ
Stock Market LLC (``NASDAQ Exchange''), NASDAQ OMX BX, Inc. (``BX''),
NASDAQ OMX Phlx, Inc. (``Phlx''), BSECC, and Stock Clearing Corporation
of Philadelphia (``SCCP'') have each reviewed the proposed change and
have determined that it should be filed with the Commission.\5\ The
changes to the Certificate are limited in scope, and under Delaware
law, they do not require approval by the stockholders of NASDAQ OMX.
---------------------------------------------------------------------------

    \5\ The NASDAQ Exchange, Phlx, BX, BSECC, and SCCP have each
submitted this proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act, 15 U.S.C. 78s(b)(3)(A)(iii).
---------------------------------------------------------------------------

    Specifically, NASDAQ OMX proposes to eliminate its Certificate of
Designations, Preferences and Rights of Series D Preferred Stock, and
all matters set forth therein. NASDAQ OMX's Series D Stock was created
in 2005 for the purpose of allowing National Association of Securities
Dealers, Inc. to retain voting control over NASDAQ OMX's predecessor,
The Nasdaq Stock Market, Inc. In connection with the NASDAQ Exchange
commencing operations as a national securities exchange, the sole share
of Series D Stock was redeemed in December 2006. Under Delaware law,
both a certificate of designations (designating a series of preferred
stock) and a certificate of elimination (eliminating a previously
adopted designation) are deemed to be amendments to NASDAQ OMX's
Certificate.
2. Statutory Basis
    SCCP believes that the proposed rule change is consistent with
provisions of Section 17A of the Act,\6\ in general, and with Section
17A(b)(3)(A) of the Act,\7\ in particular, in that it is designed to
ensure that SCCP is so organized and has the capacity to be able to
facilitate the prompt and accurate clearance and settlement of
securities transactions. The proposed change will enhance the clarity
of NASDAQ OMX's governance documents by eliminating provisions relating
to a series of preferred stock that is no longer outstanding.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78q-1.
    \7\ 15 U.S.C. 78q-1(b)(3)(A).
---------------------------------------------------------------------------

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

    SCCP does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective upon filing pursuant
to Section 19(b)(3)(A)(iii) of the Act \8\ and Rule 19b-4(f)(3) \9\
thereunder because the proposal is concerned solely with the
administration of SCCP. At any time within sixty days of the filing of
such rule change, the Commission may summarily abrogate such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \9\ 17 CFR 240.19b-4(f)(3).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml) or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-SCCP-2009-01 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-SCCP-2009-01. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. The text of the proposed rule change is available at
SCCP, the Commission's Public Reference Room, and http://
www.nasdaqtrader.com/Trader.aspx?id=SCCPApprovedRules. 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-SCCP-2009-01 and should be
submitted on or before April 1, 2009.

    For the Commission by the Division of Trading and Markets,
pursuant to delegated authority.\10\
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-5211 Filed 3-10-09; 8:45 am]

BILLING CODE 8011-01-P