[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Notices]
[Pages 68700-68705]
[FR Doc No: 2023-21943]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98601; File No. SR-CBOE-2023-056]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Its Fees Schedule

September 28, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on September 25, 2023, Cboe Exchange, Inc. (the ``Exchange'' or
``Cboe Options'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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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

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to amend its Fees Schedule. The text of the proposed rule change is
provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its Fees Schedule.\3\ The Exchange
first notes that it operates in a highly competitive market in which
market participants can readily direct order flow to competing venues
if they deem fee levels at a particular venue to be excessive or
incentives to be insufficient. More specifically, the Exchange is only
one of 16 options venues to which market participants may direct their
order flow. Based on publicly available information, no single options
exchange has more than 19% of the market share.\4\ Thus, in such a low-
concentrated and highly competitive market, no single options exchange
possesses significant pricing power in the execution of option order
flow. The Exchange believes that the ever-shifting market share among
the exchanges from month to month demonstrates that market participants
can shift order flow or discontinue or reduce use of certain categories
of products, in response to fee changes. Accordingly, competitive
forces constrain the Exchange's transaction fees, and market
participants can readily trade on competing venues if they deem pricing
levels at those other venues to be more favorable. In response to the
competitive environment, the Exchange offers tiered pricing in its Fees
Schedule, like that of other options exchanges fees schedules,\5\ which
provides Trading Permit Holders (``TPHs'') opportunities to qualify for
higher rebates or reduced fees where certain volume criteria and
thresholds are met. Tiered pricing provides an incremental incentive
for TPHs to strive for higher tier levels, which provides increasingly
higher benefits or discounts for satisfying increasingly more stringent
criteria.
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    \3\ The Exchange initially filed the proposed fee changes on
September 1, 2023 (SR-CBOE-2023-045). On September 25, 2023, the
Exchange withdrew that filing and submitted this proposal.
    \4\ See Cboe Global Markets U.S. Options Market Volume Summary
(August 30, 2023), available at https://markets.cboe.com/us/options/market_statistics/.
    \5\ See e.g., NASDAQ Stock Market Rules, Options Rules, Options
7 Pricing Schedule, Sec. 2 Options Market--Fees and Rebates, Tiers
1-6; see also NYSE Arca Options, Fees and Charges, Customer Posting
Credit Tiers in Non-Penny Issues.
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Customer Volume Incentive Program and Affiliated Volume Plan
    The Exchange proposes to amend the Customer Volume Incentive
Program (``VIP'') and the Affiliated Volume Plan (``AVP''). Under the
VIP, the Exchange credits each TPH the per contract amount set forth in
the VIP table for Public Customer (origin code ``C'') orders
transmitted by TPHs (with certain exceptions) \6\ and executed
electronically on the Exchange, provided the TPH meets certain volume
thresholds in a month; volume for Professional Customers (origin code
``U''), Broker-Dealers (origin code ``B''), and Joint Back-Offices
(``JBO'') (origin code ``J'') orders are counted toward reaching such
thresholds.\7\ Specifically, the percentage thresholds are calculated
based on the percentage of national customer volume in all underlying
symbols excluding Underlying Symbol List A,\8\ Sector Indexes,\9\ the
Dow Jones Industrial Average Index (``DJX''), the Mini Russell 2000
Index (``MRUT''), the MSCI EAFE Index (``MXEA''), the MSCI Emerging
Market Index (``MXEF''), the Mini S&P 500 Index (``NANOS''), Mini-SPX
Index (``XSP'') and FLEX Micros entered and executed over the course of
the month. VIP offers rates for both

Complex and Simple orders (both in AIM and Non-AIM orders).
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    \6\ See Cboe Options Fees Schedule, Footnote 36.
    \7\ See Cboe Options Fees Schedule, Volume Incentive Program.
    \8\ See Cboe Options Fees Schedule, Footnote 34.
    \9\ See Cboe Options Fees Schedule, Footnote 47.
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    Currently, VIP offers 5 tiers. Particularly, a TPH may meet the
criteria under Tier 1 if its qualifying volume in the qualifying
classes is above 0% and up to 0.75% of national customer volume, under
Tier 2 if its qualifying volume in qualifying classes is above 0.75%
and up to 2.00% of national customer volume, under Tier 3 if its
qualifying volume in the qualifying classes is above 2.00% and up to
3.00% of national customer volume, under Tier 4 if its qualifying
volume in the qualifying classes is above 3.00% and up to 4.00% of
national customer volume, and under Tier 5 if its qualifying volume in
the qualifying classes is above 4.00% of national customer volume.
    The Exchange proposes to eliminate Tier 4 and to amend the volume
threshold for Tier 3 to be above 2.00% and up to 4.00% of national
customer volume. The Exchange also proposes a corresponding non-
substantive amendment to update current Tier 5 to become Tier 4.\10\
The VIP credit rates for Simple and Complex orders remain unchanged
under the proposed change.
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    \10\ As part of the proposed change, the Exchange also proposes
to eliminate reference to Tier 5 in the Fee Schedule table. Under
the proposed change, a TPH will only receive the Complex credit
rates for Complex volume if at least 32% for Tiers 1, 2, and 3 or
38% for Tier 4 of that TPH's qualifying VIP volume in the previous
month was comprised of Simple volume.
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    The proposed changes are designed to incentivize more volume to
earn the same credits while also maintaining an incremental incentive
for TPHs to strive for the highest tier level. The Exchange expects the
impact of the change to be minimal, as currently, no TPHs qualify for
Tier 4. Further, under current Tiers 4 and 5, the VIP credit rates for
Simple and Complex Non-AIM contracts are the same (i.e., $0.15 for
Simple Non-AIM contracts and $0.25 for Complex Non-AIM contracts), and
the difference between VIP credit rates for Simple and Complex AIM
contracts are $0.01 (i.e., $0.13 for Tier 4 Simple AIM contracts and
$0.14 for Tier 5 Simple AIM contracts; $0.23 for Tier 4 Complex AIM
contracts and $0.24 for Complex AIM contracts). The proposed changes
are also designed to increase the amount of volume TPHs provide on the
Exchange and further encourage them to contribute to a deeper, more
liquid market, as well as to increase transactions and take such
execution opportunities provided by such increased liquidity. The
Exchange believes that this, in turn, benefits all market participants
by contributing towards a robust and well-balanced market ecosystem.
The Exchange notes the proposed tiers are competitively achievable for
all TPHs that submit significant customer order flow, in that all firms
that submit the requisite significant customer order flow could compete
to meet the tiers.
    The Exchange proposes to make corresponding amendments to the
Affiliated Volume Plan (``AVP''). Under AVP, if a Market-Maker
Affiliate \11\ (``Affiliate OFP'') or Appointed OFP \12\ receives a
credit under the VIP, the Market-Maker will receive an access credit on
its BOE Bulk Ports corresponding to the VIP tier reached as well as a
transaction fee credit on its sliding scale Market-Maker transaction
fees (not including any additional surcharges or fees assessed as part
of the Liquidity Provider Sliding Scale Adjustment Table). In
connection with the proposed changes to the VIP, the Exchange proposes
to make a corresponding change to the AVP and eliminate VIP Tier 4 (and
corresponding MM Affiliate Access Credits and Liquidity Provider
Sliding Scale Credits). The Exchange proposes to rename current VIP
Tier 5 as VIP Tier 4, with the same corresponding Market-Marker
Affiliate Access Credit of 25% and Liquidity Provider Sliding Scale
Credit of 35%. All other Tiers and corresponding Market-Maker Affiliate
Access Credits and Liquidity Provider Sliding Scale Credits remain
unchanged under the proposed rule change.
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    \11\ For purposes of AVP, ``Affiliate'' is defined as having at
least 75% common ownership between the two entities as reflected on
each entity's Form BD, Schedule A.
    \12\ See Cboe Options Fees Schedule Footnote 23. Particularly, a
Market-Maker may designate an Order Flow Provider (``OFP'') as its
``Appointed OFP'' and an OFP may designate a Market-Maker to be its
``Appointed Market-Maker'' for purposes of qualifying for credits
under AVP.
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New AIM Responder Fee Code
    The Exchange proposes to amend its Fees Schedule in connection with
the fees related to orders and auction responses executed in the
Automated Improvement Mechanism (``AIM'') and Solicitation Auction
Mechanism (``SAM'') Auctions.
    AIM and SAM include functionality in which a TPH (an ``Initiating
TPH'') may electronically submit for execution an order it represents
as agent on behalf of a customer,\13\ broker dealer, or any other
person or entity (``Agency Order'') against any other order it
represents as agent, as well as against principal interest in AIM only,
(an ``Initiating Order'') provided it submits the Agency Order for
electronic execution into the AIM or SAM Auctions.\14\ The Exchange may
designate any class of options traded on Cboe Options as eligible for
AIM or SAM. The Exchange notes that all Users, other than the
Initiating TPH, may submit responses to an Auction (``AIM
Responses'').\15\ AIM and SAM Auctions take into account AIM Responses
to the applicable Auction as well as contra interest resting on the
Cboe Options Book at the conclusion of the Auction (``unrelated
orders''), regardless of whether such unrelated orders were already
present on the Book when the Agency Order was received by the Exchange
or were received after the Exchange commenced the applicable Auction.
If contracts remain from one or more unrelated orders at the time the
Auction ends, they are considered for participation in the AIM or SAM
order allocation process.
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    \13\ The term ``customer'' means a Public Customer or a broker-
dealer. The term ``Public Customer'' means a person that is not a
broker-dealer. See Rule 1.1.
    \14\ See Rule 5.37 (AIM); Rule 5.39 (SAM); Rule 5.38 (Complex
AIM); Rule 5.40 (Complex SAM); Rule 5.73 (FLEX AIM); and Rule 5.74
(FLEX SAM).
    \15\ For purposes of this filing and the proposed fee, the term
``AIM Response'' will include responses submitted to AIM and SAM
Auctions.
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    The Exchange assesses fees for certain AIM Responses (the ``AIM
Response'' fees set forth in the fees schedule). For example, the
Exchange assesses a fee of $0.50 per contract for non-Customer, non-
Market-Maker AIM Responses in penny classes, yielding fee code NB, and
a fee of $1.05 per contract for Non-Customer, Non-Market-Maker AIM
Responses in non-penny classes, yielding fee code NC.
    The Exchange now proposes to add fee code ``MD'', which would be
appended to Market-Maker AIM Responses \16\ and assessed a fee of $0.25
per contract.
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    \16\ Currently, such orders are appended fee code MA, and
assessed a standard fee of $0.23 per contract, subject to the
Liquidity Provider Sliding Scale and Liquidity Provider Sliding
Scale Adjustment Table.
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    The Exchange notes that the same FLEX AIM and FLEX SAM responses
will be assessed the same fee, which is consistent with the structure
of the Exchange's current fees for AIM Responses, which apply uniformly
to qualifying orders in AIM, SAM, FLEX AIM, and FLEX SAM. \17\ The
Exchange also notes that the Market-Maker AIM Responder fee applies to
AIM Responses in Equity, ETF and ETN Options, Sectors Indexes,\18\ and
all other index

products, executed in AIM, SAM, FLEX AIM, and FLEX SAM Auctions.
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    \17\ See Cboe Exchange Fees Schedule, Footnote 20.
    \18\ See Cboe Exchange Fees Schedule, Footnote 47.
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    The Exchange also proposes to remove Market-Maker volume via AIM
Market-Maker Responses (yielding fee code MD) from eligibility for
credits pursuant to the Liquidity Provider Sliding Scale, similar to
how Market-Maker orders transacted in open outcry (i.e., manual) in
Equity, ETF, and ETN Options, Sector Indexes and All Other Index
Products, which yield fee code MB, are handled today. Currently, the
Liquidity Provider Sliding Scale offers credits on Market-Maker orders
where a Market-Maker achieves certain volume thresholds based on total
national Market-Maker volume in all underlying symbols \19\ during the
calendar month. Footnote 10 (appended to the Liquidity Provider Sliding
Scale) states that the Liquidity Provider Sliding Scale applies to
Liquidity Provider (Cboe Options Market-Maker, DPM and LMM) transaction
fees in all products except (1) Underlying Symbol List A \20\ (34),
MRUT, NANOS, XSP and FLEX Micros, and (2) volume executed in open
outcry. The proposed rule change amends Footnote 10 to add volume
executed via AIM Responses to the list of Liquidity Provider Sliding
Scale exclusions. The proposed rule change also adds language to
Footnote 10 to make it clear that the volume thresholds under the
Liquidity Provider Sliding Scale will continue to include volume
executed via AIM Responses. The Exchange notes that it continues to
include volume executed via AIM Responses in a Market-Maker's volume
eligible to meet the tier thresholds in order to continue to
incentivize Market-Maker order flow to the trading floor. The Exchange
offers a hybrid market system and aims to continue to balance
incentives for Market-Makers to contribute to deep liquid markets for
investors on both its electronic and open outcry platforms.
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    \19\ Excluding products in Underlying Symbol List A (see
Footnote 34), MRUT, NANOS, XSP and FLEX Micros.
    \20\ See Cboe Exchange Fees Schedule, Footnote 34.
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Score Program Changes
    The Exchange proposes to amend the Select Customer Options
Reduction program (``SCORe''). By way of background, SCORe is a
discount program for Retail, Non-FLEX Customer (``C'' origin code)
volume in the following options classes: SPX (including SPXW), VIX,
RUT, MXEA, MXEF & XSP (``Qualifying Classes''). The SCORe program is
available to any TPH Originating Clearing Firm or non-TPH Originating
Clearing Firm that sign up for the program.\21\ SCORe utilizes Discount
Tiers to determine the Originating Firm's applicable corresponding
discounts. To determine the Discount Tier, an Originating Firm's Retail
volume in the Qualifying Classes will be divided by total Retail volume
in the Qualifying Classes executed on the Exchange. The program then
provides a discount per retail contract, based on the determined
Discount Tier thereunder. Currently, the program sets forth four
Discount Tiers, with applicable discounts ranging from $0 to $0.14 per
retail contract.
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    \21\ For this program, an ``Originating Clearing Firm'' is
defined as either (a) the executing clearing Options Clearing
Corporation (``OCC'') number on any transaction which does not also
include a Clearing Member Trading Agreement (``CMTA'') OCC clearing
number or (b) the CMTA in the case of any transaction which does
include a CMTA OCC clearing number.
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    The Exchange proposes to amend Footnote 48 to exclude from the
SCORe program certain orders that are revised post-trade, using the
Clearing Editor tool. Specifically, the Exchange proposes to exclude
orders where the capacity is changed from another capacity to Customer
using the Clearing Editor, and single leg orders created by hard-edits
to complex orders using the Clearing Editor.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\22\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \23\ requirements that the rules of an exchange be
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. Additionally,
the Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \24\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \22\ 15 U.S.C. 78f(b).
    \23\ 15 U.S.C. 78f(b)(5).
    \24\ Id.
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    As stated above, the Exchange operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. The proposed rule change
reflects a competitive pricing structure designed to incentivize market
participants to direct their order flow to the Exchange, which the
Exchange believes would enhance market quality to the benefit of all
TPHs.
Customer Volume Incentive Program and Affiliated Volume Plan
    The Exchange believes the proposed amendments to the VIP (and
corresponding amendments to AVP) to eliminate Tier 4 and to amend the
volume threshold for Tier 3 to be above 2.00%-4.00%, is reasonable
because it continues to encourage TPHs to take the opportunity to
receive credits on Customer orders by reaching the proposed volume
thresholds. The Exchange notes that relative volume-based incentives
and discounts have been widely adopted by exchanges \25\ and are
reasonable, equitable and non-discriminatory because they are open to
all TPHs on an equal basis and provide additional benefits or discounts
that are reasonably related to (i) the value to an exchange's market
quality and (ii) associated higher levels of market activity, such as
higher levels of liquidity provision and/or growth patterns.
Additionally, as noted above, the Exchange operates in a highly
competitive market. The Exchange is only one of several options venues
to which market participants may direct their order flow. Competing
options exchanges offer similar tiered pricing structures to that of
the Exchange, including schedules of rebates/credits and fees that
apply based upon members achieving certain volume and/or growth
thresholds. These competing pricing schedules, moreover, are presently
comparable to those that the Exchange provides, including the pricing
of comparable tiers.\26\
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    \25\ See supra note 5.
    \26\ Id.
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    The Exchange believes adjusting the VIP volume thresholds by
eliminating Tier 4 (and making corresponding changes to the AVP) and
amending the volume threshold for Tier 3 is reasonable because it will
continue to encourage TPHs to increase their overall order flow to the
Exchange based on increasing their Customer, Professional Customer,
Broker-Dealer, and JBO executed orders as a percentage of national
customer volume. Particularly, the Exchange believes the proposed

threshold change is reasonable because it will encourage increased
volume, thus a deeper, more liquid market, and an increase in
transaction opportunities provided by the increased liquidity. In turn,
these increases benefit all TPHs by contributing towards a robust and
well-balanced market ecosystem. Increased overall order flow benefits
all investors by deepening the Exchange's liquidity pool, providing
greater execution incentives and opportunities, offering additional
flexibility for all investors to enjoy cost savings, supporting the
quality of price discovery, promoting market transparency, and
improving investor protection.
    The proposed volume thresholds also do not represent a significant
departure from the current required criteria under the Exchange's
existing tiers and is therefore still reasonable based on the
difficulty of satisfying the tiers' criteria and ensures the existing
credit and proposed thresholds appropriately reflect the incremental
difficulty to achieve the existing VIP tiers. Further, the Exchange
believes that the amendments are reasonable because it will still allow
TPHs transmitting qualifying orders that reach a threshold of above
3.00--4.00% to receive either the same credit for doing so, in the case
of Simple and Complex Non-AIM Contracts, or a $0.01 lesser credit for
Simple and Complex AIM Contracts. Additionally, as noted above,
currently, no TPHs qualify for Tier 4. Finally, the changes to the AVP
are reasonable because the AVP utilizes the VIP tier structure, and
thus, any changes to the VIP tiers must be incorporated into the AVP.
    The Exchange believes Tiers 3 and 4, as amended, remain in line
with existing tiers, both in required criteria and credits. For
example, the volume threshold amount under existing Tier 1 is currently
set as a range within a 0.75 percentage point (0%-0.75%) and Tier 2 is
currently set as a range within a 1.25 percentage point (between 0.75%
up to 2.00%). It is reasonable to incrementally increase this range for
Tier 3 to be within 2 percentage points (between 2.00% and 4.00%), and
then over 4.00% for Tier 4, as proposed, since higher credits are
available for higher tiers. The Exchange also believes that the tiers,
as amended, are in a reasonable increment to encourage overall order
flow to the Exchange without so significantly increasing the difficulty
in reaching the tiers' criteria.
    The Exchange believes that the proposal represents an equitable
allocation of rebates and is not unfairly discriminatory because all
TPHs have the opportunity to meet the tier thresholds. The Exchange
also notes that the proposed changes will not adversely impact any
TPH's pricing or ability to qualify for other credit tiers. Rather,
should a TPH not meet the proposed criteria, the TPH will merely not
receive the proffered credit, for both the VIP and AVP.
New AIM Responder Fee Code
    The Exchange believes that the proposed rule change to adopt a fee
code and assess a standard rate for Market-Maker AIM Responses is
reasonable, equitable and not unfairly discriminatory. As noted above,
the Exchange operates in a highly competitive market. The Exchange is
only one of several options venues to which market participants may
direct their order flow, and it represents a small percentage of the
overall market. The Exchange believes that the proposed fees are
reasonable, equitable, and not unfairly discriminatory in that
competing options exchanges,\27\ including the Exchange's affiliated
options exchanges,\28\ offer substantially the same fees and credits in
connection with similar price improvement auctions, as the Exchange now
proposes.
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    \27\ See MIAX Options Fee Schedule, Section 1(a)(v), ``MIAX
Price Improvement Mechanism (``PRIME'') Fees, which assesses a fee
of $0.50 (Penny Classes) and $1.10 (non-Penny Classes) for Market-
Maker PRIME responses; see also NYSE American Options Fee Schedule,
Section I(G), ``CUBE Auction Fees and Credits'', which assesses a
fee of $0.50 (Penny Classes) and $1.05 (non-Penny Classes) for Non-
Customer CUBE (its Customer Best Execution Auction) responses.
    \28\ See EDGX Options Exchange Fee Schedule, ``Fee Codes and
Associated Fees'', fee code BD is appended to AIM Responder Penny
orders and is assessed a fee of $0.50 per share, and fee code BE is
appended to AIM Responder Non-Penny orders and is assessed a fee of
$1.05 per share.
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    Additionally, the Exchange believes that the proposed rule change
is equitable and not unfairly discriminatory because the proposed fee
will apply automatically and uniformly to all Market-Maker AIM Response
orders. The Exchange also believes that the proposed fees in connection
with Market-Maker AIM Response orders do not represent a significant
departure from the fees and credits rebates currently offered under the
fees schedule for these market participants. For example, under the
existing fees schedule electronic orders in Equity, ETF and ETN
Options, Sectors Indexes,\29\ and all other index products with M
Capacity Codes are assessed a fee of $0.23 per contract in Penny and
non-Penny Classes.
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    \29\ See Cboe Exchange Fees Schedule, Footnote 47.
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    The Exchange also believes that assessing a fee applicable to
Market-Maker responses that is lower than non-Customer, non-Market-
Maker responses is equitable and not unfairly discriminatory because
Market-Makers are already subject to certain other transaction fees not
otherwise applicable to other market participants. In particular, in
addition to Market-Maker-specific standard transaction fees,\30\
Market-Makers are also currently assessed a marketing fee of $0.25 in
Penny Program classes and $0.70 in all other classes on certain
transactions resulting from customer orders,\31\ including qualifying
orders submitted as AIM Responses. Further, Market-Makers, unlike other
market participants, take on a number of obligations, including quoting
obligations that other market participants do not have, as well as
added market making and regulatory requirements, which normally do not
apply to other market participants. For example, Market-Makers have
obligations to maintain continuous markets, engage in a course of
dealings reasonably calculated to contribute to the maintenance of a
fair and orderly market, and to not make bids or offers or enter into
transactions that are inconsistent with a course of dealing.
Additionally, the Exchange notes that Market-Makers (with an
appointment in the applicable class) may not submit solicited orders
into an AIM Auction; \32\ this restriction does not apply to Firm
orders. As stated, the Exchange also recognizes that Market-Makers are
the primary liquidity providers in the options markets, and
particularly, during AIM auctions. Thus, the Exchange believes Market-
Makers provide the most accurate prices reflective of the true state of
the market and are primarily responsible for encouraging more
aggressive quoting and superior price improvement during an AIM
Auction. As a result, the Exchange believes it is important to continue
to incentivize Market-Makers to actively participate in such auctions
by means of assessing a lower transaction fee for Market-Maker AIM
Response orders. Increased Market-Maker liquidity also increases
trading opportunities and signals to other

participants to increase their order flow, which benefits all market
participants.
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    \30\ See Cboe Options Fees Schedule, ``SPX Liquidity Provider
Sliding Scale'' table; ``Liquidity Provider Sliding Scale'' table;
and ``Liquidity Provider Sliding Scale Adjustment Table''.
    \31\ That is, Market-Maker orders that execute against customer
orders.
    \32\ This is also true for SAM Auctions. See Rule 5.39.
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    The proposed rule change to remove Market-Maker volume transacted
via AIM Responses from eligibility for credits pursuant to the
Liquidity Provider Sliding Scale is reasonable because it is also
reasonably designed to balance incentivizing Market-Maker's
participation in AIM Auctions with establishing a fee in-line with
other AIM Response fees. The Exchange also believes that it is
reasonable to continue to include Market-Maker AIM Response volume in
the volume thresholds for meeting the Liquidity Provider Sliding Scale
tiers because, as stated above, it is designed to continue to
incentivize Market-Maker participation in AIM Auctions and would assist
the Exchange in continuing to provide a robust hybrid market. The
Exchange notes that the AIM and C-AIM Auctions generally deliver
meaningful opportunities for price improvement to orders and provide an
efficient manner of access to liquidity for members. Increased overall
auction-related order flow benefits all investors by deepening the
Exchange's liquidity pool, potentially providing even greater execution
incentives and opportunities, offering additional flexibility for all
investors to enjoy cost savings, supporting the quality of price
discovery, promoting market transparency and improving investor
protection. The Exchange notes, too, that other programs in the Fees
Schedule include certain volume in meeting volume thresholds while not
including the same volume as eligible for credits or reduced rates
under such programs.\33\ The proposed rule change is equitable and not
unfairly discriminatory because the proposed rule change will apply
equally to all Market-Maker AIM Response volume, in that, no such
volume will be allotted credits under the Liquidity Provider Sliding
Scale Program.
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    \33\ See e.g., Cboe Options Fees Schedule, Volume Incentive
Program (VIP) table (which counts volume for capacity B, J and U
towards tier qualification but not as eligible for the VIP credit),
and Cboe Options Clearing Trading Permit Holder Proprietary Products
Sliding Scale table (which counts volume in products not included in
Underlying Symbol List A towards reaching the tiers, but provides
reduced rates to volume in products included in Underlying Symbol
List A).
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SCORe Program Changes
    The Exchange believes the proposal to exclude certain orders that
are revised post-trade, using the Clearing Editor tool is reasonable
because it no longer wishes to include these orders as part of the
program, and it is not required to do so. The Exchange notes that
orders where the capacity is changed from another capacity to Customer
using the Clearing Editor and single leg orders created by hard-edits
to complex orders using the Clearing Editor were not intended to be a
part of the program and believes the intention of the program will
continue to be achieved as a result of the proposed changes. The
Exchange believes the proposed changes are reasonable because they
provide further clarity regarding what orders are (and are not)
eligible for the program. Further, the Exchange believes the changes
remain equitable and reasonable by not materially changing the program.
The Exchange believes SCORe, currently and as amended, continues to
provide an incremental incentive for Originating Firms to strive for
the highest tier level, which provides increasingly higher discounts.
As such, the changes are designed to encourage increased Retail volume
in the Qualifying Classes, which provides increased volume and greater
trading opportunities for all market participants. The Exchange
believes the proposed change is equitable and not unfairly
discriminatory because the exclusions of certain orders that are
revised post-trade, using the Clearing Editor tool apply to all
registered Originating Firms uniformly.

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

    The Exchange does not believe that the proposed rule changes will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Specifically, the Exchange
believes the proposed rule change to the VIP and AVP does not impose
any burden on intramarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The Exchange
believes that the proposed changes to the VIP, and corresponding
changes to the AVP, will encourage the submission of additional
liquidity to a public exchange, thereby promoting market depth, price
discovery and transparency and enhancing order execution opportunities
for all TPHs. As a result, the Exchange believes that the proposed
change furthers the Commission's goal in adopting Regulation NMS of
fostering competition among orders, which promotes ``more efficient
pricing of individual stocks for all types of orders, large and
small.'' \34\ Further, the proposed change applies to all TPHs
submitting qualified orders equally, in that all TPHs submitting such
orders are eligible for the tiers (as amended), have a reasonable
opportunity to meet the tiers' criteria (as amended) and will all
receive the existing credit if such criteria is met. As described
above, while only certain orders would count towards the qualifying
thresholds, specifically, Customers, Professionals, Broker-Dealers and
JBOs, these market participants' orders are primarily executed as
agency orders, whose order flow would bring greater volume and
liquidity, which benefits all market participants by providing more
trading opportunities and tighter spreads. Overall, the proposed change
is designed to encourage additional order flow to the Exchange, which
the Exchange believes benefits all market participants on the Exchange
by providing more liquidity, thus trading opportunities, encouraging
even more TPHs to send orders, thereby contributing towards a robust
and well-balanced market ecosystem to the benefit of all market
participants.
---------------------------------------------------------------------------

    \34\ See Securities Exchange Act Release No. 51808, 70 FR 37495,
37498-99 (June 29, 2005) (S7-10-04) (Final Rule).
---------------------------------------------------------------------------

    The Exchange does not believe that the proposed rule change to
adopt a new fee code for Market-Maker AIM Responses will impose any
burden on intramarket competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Particularly, the proposed
changes will apply uniformly to all Market-Maker AIM Responses, in that
all such orders will automatically and uniformly yield fee code MD and
be assessed the standard fee for MD. Further, all such orders will
uniformly not be eligible for credits under the Liquidity Provider
Sliding Scale.
    Additionally, the Exchange does not believe that the proposed
changes to the SCORe program will impose any burden on intramarket
competition because the proposed changes apply to all registered
Originating Firms uniformly, in that exclusions of certain orders that
are revised post-trade, using the Clearing Editor tool apply to all
registered Originating Firms uniformly.
    Finally, the Exchange believes the proposed rule changes do not
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. As previously
discussed, the Exchange operates in a highly competitive market.
Members have numerous alternative venues that they may participate on
and direct their order flow, including 15 other options exchanges.
Based on publicly available information, no single options exchange has
more than 19% of the market share.\35\ Therefore, no exchange possesses
significant pricing

power in the execution of option order flow. Indeed, participants can
readily choose to send their orders to other exchange, and,
additionally off-exchange venues, if they deem fee levels at those
other venues to be more favorable. Moreover, the Commission has
repeatedly expressed its preference for competition over regulatory
intervention in determining prices, products, and services in the
securities markets. Specifically, in Regulation NMS, the Commission
highlighted the importance of market forces in determining prices and
SRO revenues and, also, recognized that current regulation of the
market system ``has been remarkably successful in promoting market
competition in its broader forms that are most important to investors
and listed companies.'' \36\ The fact that this market is competitive
has also long been recognized by the courts. In NetCoalition v.
Securities and Exchange Commission, the D.C. Circuit stated as follows:
``[n]o one disputes that competition for order flow is `fierce.' . . .
As the SEC explained, `[i]n the U.S. national market system, buyers and
sellers of securities, and the broker-dealers that act as their order-
routing agents, have a wide range of choices of where to route orders
for execution'; [and] `no exchange can afford to take its market share
percentages for granted' because `no exchange possesses a monopoly,
regulatory or otherwise, in the execution of order flow from broker
dealers'. . . .''.\37\ Accordingly, the Exchange does not believe its
proposed fee change imposes any burden on competition that is not
necessary or appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \35\ See supra note 4.
    \36\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \37\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

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

    The Exchange neither solicited nor received comments on the
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act,\38\ and Rule 19b-4(f)(2) \39\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is 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.
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \39\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-CBOE-2023-056 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-CBOE-2023-056. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-CBOE-2023-056 and should be
submitted on or before October 25, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\40\
---------------------------------------------------------------------------

    \40\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-21943 Filed 10-3-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 117 (Thursday, June 18, 2015)]
[Rules and Regulations]
[Pages 34839-34841]
[FR Doc No: 2015-14961]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385

[Docket No. FMCSA-FMCSA-2015-0075]
RIN 2126-AB78

Incorporation by Reference; North American Standard Out-of-
Service Criteria; Hazardous Materials Safety Permits

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: FMCSA amends its Hazardous Materials Safety Permits rules to
update the current incorporation by reference of the ``North American
Standard Out-of-Service Criteria and Level VI Inspection Procedures and
Out-of-Service Criteria for Commercial Highway Vehicles Transporting
Transuranics and Highway Route Controlled Quantities of Radioactive
Materials as defined in 49 CFR part 173.403.'' Currently the rules
reference the April 1, 2014, edition of the out-of-service criteria
and, through this final rule, FMCSA incorporates the April 1, 2015,
edition.

DATES: Effective June 18, 2015. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51 as of June 18, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Federal Motor
Carrier Safety Administration, Office of Policy, 1200 New Jersey Avenue
SE., Washington, DC 20590-0001, by telephone at<PHONE_NUMBER> or via
email<EMAIL_ADDRESS>Office hours are from 8 a.m. to 4:30
p.m., Monday through Friday, except Federal holidays. If you have
questions on viewing the docket, contact Docket Operations, telephone
202-366-9826.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This rulemaking updates an incorporation by reference found at 49
CFR 385.4 and referenced at 49 CFR 385.415(b)(1). The rules currently
reference the April 1, 2014, edition of ``North American Standard Out-
of-Service Criteria and Level VI Inspection Procedures and Out-of-
Service Criteria for Commercial Highway Vehicles Transporting
Transuranics and Highway Route Controlled Quantities of Radioactive
Materials as defined in 49 CFR part 173.403.'' In this final rule,
FMCSA incorporates the April 1, 2015, edition. The revision does not
impose new requirements or substantively amend the Code of Federal
Regulations.

II. Legal Basis for the Rulemaking

    Congress has enacted several statutory provisions to improve the
safety of hazardous materials transported in interstate commerce.
Specifically, in provisions codified at 49 U.S.C. 5105(e), relating to
inspections of motor vehicles carrying hazardous material, and 49
U.S.C. 5109, relating to motor carrier safety permits, it has required
the Secretary of the Department of Transportation to promulgate
regulations as part of a comprehensive safety program on hazardous
material safety permits. The FMCSA Administrator has been delegated
authority under 49 CFR 1.87 to carry out the rulemaking functions
vested in the Secretary of Transportation. Consistent with that
authority, FMCSA has promulgated regulations to address the
congressional mandate. Such regulations on hazardous materials are the
underlying provisions that have utilized the material incorporated by
reference discussed in this notice.
    The Administrative Procedure Act (APA) (5 U.S.C. 553) specifically
provides that adherence to its notice and public comment rulemaking
procedures are not required where the Agency finds there is good cause
to dispense with such procedures (and incorporates the finding and a
brief statement of reasons to support the finding in the rules issued).
Generally, good cause exists where the Agency determines that notice
and public comment procedures are impracticable, unnecessary, or
contrary to the public interest (5 U.S.C. 553 (b)(3)(B)). This document
updates an incorporation by reference found at 49 CFR 385.4 and
referenced at 49 CFR 385.415(b)(1). The revision does not impose new
requirements or substantively change the Code of Federal Regulations.
For these reasons, the FMCSA finds good cause that notice and public
comment procedures are unnecessary.

III. Background

    Currently, 49 CFR 385.415 prescribes operational requirements for
motor carriers transporting hazardous materials for which a hazardous
materials safety permit is required. Section 385.415(b)(1) requires
that motor carriers must ensure a pre-trip inspection be performed on
each motor vehicle to be used to transport a highway route controlled
quantity of a Class 7 (radioactive) material, in accordance with the
requirements of the ``North American Standard Out-of-Service Criteria
and Level VI Inspection Procedures and Out-of-Service Criteria for
Commercial Highway Vehicles Transporting Transuranics and Highway Route
Controlled Quantities of Radioactive Materials as defined in 49 CFR
part 173.403.'' With regard to the specific edition of the out-of-
service criteria, 49 CFR 385.4, as amended on May 15, 2014 (79 FR
27766), references the April 1, 2014, edition. Specifically, this final
rule amends Sec.  385.4 (b) by replacing the reference to the April 1,
2014, edition date with the new edition date of April 1, 2015.
    FMCSA reviewed the April 1, 2015, edition and determined there are
no substantive changes that would result in motor carriers being
subjected to a new or amended standard. The changes are highlighted
below for reference. It is necessary to update the reference to ensure
that motor carriers and enforcement officials have convenient access to
the correctly identified inspection criteria that are referenced in the
rules.
    There are eight changes made in the 2015 edition. Additional
conforming changes have been made to the table of contents, but those
are not included in this summary. (All references are to the April 1,
2015 North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR part 173.403.)
The first change is to create consistency in the language used between
commercial driver's license (CDL) and non-CDL drivers, when being taken
out of service. (Part I, item 2.a.(1)) It does not change the criteria
used to take drivers out of service, therefore this is not a
substantive change. The second change is to align the standard with
FMCSA's regulation governing operation of a vehicle while fatigued,
found at 49 CFR 392.3. (Part I, Item 6.) Again, this change does not
alter the criteria an inspector would use to take

a driver out of service and as such does not rise to a substantive
change.
    The third change removes Part I, Item 7, which addresses
communication. The 2014 edition included an item covering the
responsibility of the driver and motor carrier to ensure adequate
communication in Canada, Mexico, and the United States (the three
countries covered by the standard). However, because the FMCSRs only
require drivers in the United States to be able to communicate in
English for basic purposes (converse with the general public, to
understand highway traffic signs and signals in the English language,
to respond to official inquiries, and to make entries on reports and
records), there should be no additional burden placed on drivers in the
United States as a result of the change in the 2015 standard. As a
result, removing this item will not have a substantive impact on
drivers.
    The fourth, fifth and sixth changes amend Part II, Item 1. (BRAKE
SYSTEMS). The language for the out-of-service condition for Defective
Brakes and Front Steering Axle(s) Brakes was modified to add loose and
missing caliper mounting bolts to the 20% calculation for determining
OOSC for hydraulic brakes. Its omission was an oversight when the
criterion for brakes was rewritten; FMCSA views this change as
nonsubstantive. (Part II, Item 1.a. & b.) An amendment to the language
for the application of OOSC for worn hoses clarifies that this section
is intended for air brake hoses only, and as such is not a substantive
change. (Part II, Item 1.h.) Also, the amendment to the OOSC addresses
the improper repair of hydraulic brake lines by means of placing a
piece of tubing over the metal tubing and attaching with hose clamps.
As this method of repair is not permitted under the FMCSRs, this change
will not have a substantive impact. (Part II, Item 1.o.)
    The seventh change revises wording that was causing confusion in
Part II, Item 3. (COUPLING). The current language causes confusion and
gives the impression that the entire fifth wheel is not being taken
into consideration. The new OOSC language clarifies how to measure
cracks in parent metal, how to determine the 20% weld cracks, and
defines a ``well defined (especially open) crack'' as well as a crack
in a repair weld. This revision is a clarification and not a
substantive change. (Part II, Item 3.a. & b.)
    The final change adds a paragraph (c) to Part II, Item 15. This new
paragraph explicitly calls out the practice of using loose or temporary
seating. As the practice is already prohibited under the FMCSRs (see 49
CFR 393.91, 390.33), the additional language does not alter the
criteria an inspector would use to take a driver out of service and as
such does not rise to a substantive change. (Part II, Item 15.c.)

IV. Regulatory Analyses

Regulatory Planning and Review (Executive Order (E.O.) 12866) and DOT
Regulatory Policies and Procedures

    FMCSA has determined that this action is not a significant
regulatory action within the meaning of E.O. 12866, as supplemented by
E.O. 13563 (76 FR 3821, January 18, 2011), or within the meaning of the
DOT Regulatory Policies and Procedures (44 FR 11034, February 26,
1979). FMCSA expects the final rule will have no costs; therefore, a
full regulatory evaluation is unnecessary. The Office of Management and
Budget (OMB) did not, therefore, review this document.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C.
601 et seq.), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not
required to prepare a final regulatory flexibility analysis under 5
U.S.C. 604(a) for this final rule because the Agency has not issued a
notice of proposed rulemaking prior to this action. FMCSA has
determined that it has good cause to adopt the rule without notice and
comment.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so that they can better evaluate its effects
on themselves and participate in the rulemaking initiative. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult the FMCSA point of contact,
Michael Huntley, listed in the FOR FURTHER INFORMATION CONTACT section
of this rule.

Unfunded Mandates Reform Act of 1995

    The final rule will not impose an unfunded Federal mandate, as
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et
seq.), that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $151
million (which is the 2012 inflation-adjusted value of the 1995
threshold of $100 million) or more in any 1 year.

Federalism (E.O. 13132)

    A rule has implications for federalism under E.O. 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on States or localities. FMCSA analyzed this
rule under that Order and has determined that it does not have
implications for federalism.

Civil Justice Reform (E.O. 12988)

    This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.

Protection of Children (E.O. 13045)

    FMCSA analyzed this action under E.O. 13045, Protection of Children
from Environmental Health Risks and Safety Risks. FMCSA determined that
this final rule will not create an environmental risk to health or
safety that may disproportionately affect children. In addition, it is
not an economically significant rule, and no such analysis is therefore
required.

Taking of Private Property (E.O. 12630)

    This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.

Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This rule does not require the
collection of personally identifiable information (PII).

Intergovernmental Review (E.O. 12372)

    The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the OMB for each
collection of information they conduct, sponsor, or require through
regulations. FMCSA determined that no new information collection
requirements are associated with this final rule.

National Environmental Policy and Clean Air Act

    FMCSA analyzed this final rule for the purpose of ascertaining the
applicability of the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and our Environmental Procedures Order 5610.1,
issued March 1, 2004 (69 FR 9680). This final rule is categorically
excluded from further analysis and documentation under the Categorical
Exclusion (CE) in paragraph 6(b) of Appendix 2 of FMCSA Order 5610.1.
This CE addresses minor revisions such as found in this rulemaking;
therefore preparation of an environmental assessment or environmental
impact statement is not necessary.
    The FMCSA also analyzed this rule under the Clean Air Act, as
amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and
implementing regulations promulgated by the Environmental Protection
Agency. Approval of this action is exempt from the CAA's general
conformity requirement since it will have no effect on air emissions.

Environmental Justice (E.O. 12898)

    FMCSA evaluated the environmental effects of this final rule in
accordance with E.O. 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impacts resulting from its promulgation.
Environmental justice issues would be raised if there were a
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations. FMCSA analyzed this action under NEPA and found
the action to be categorically excluded from analysis due to the lack
of impact to the environment. This final rule simply updates an
incorporation by reference and would not result in high and adverse
environmental impacts.

Energy Supply, Distribution, or Use (E.O. 13211)

    FMCSA has analyzed this rule under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. FMCSA has determined that it is not a ``significant energy
action'' under that E.O. because it is not a ``significant regulatory
action'' under E.O. 12866 and is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Therefore, the rule does not require a Statement of Energy Effects
under E.O. 13211.

Indian Tribal Governments (E.O. 13175)

    This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it would not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.

National Technology Transfer and Advancement Act (Technical Standards)
and 1 CFR Part 51

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) requires Federal agencies proposing to adopt technical
standards to consider whether voluntary consensus standards are
available. If the Agency chooses to adopt its own standards in place of
existing voluntary consensus standards, it must explain its decision in
a separate statement to OMB. Because FMCSA does not intend to adopt its
own technical standards, there is no need to submit a separate
statement to OMB on this matter. The standard incorporated by reference
is discussed in detail in section III. Background and is reasonably
available through the CSVA Web site.

E-Government Act of 2002

    The E-Government Act of 2002, Public Law 107-347, section 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a privacy impact assessment.

List of Subjects in 49 CFR Part 385

    Administrative practice and procedure, Highway safety,
Incorporation by reference, Mexico, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, FMCSA is amending 49 CFR chapter
III, part 385 as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 continues to read as follows:

    Authority:  49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of Pub.
L. 107-87; and 49 CFR 1.87.

0
2. Revise Sec.  385.4(b)(1) to read as follows:

Sec.  385.4  Matter incorporated by reference.

* * * * *
    (b) * * *
    (1) ``North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR part
173.403,'' April 1, 2015; incorporation by reference approved for Sec.
385.415(b).
* * * * *

    Issued under the authority of delegation in 49 CFR 1.87 on: June
5, 2015.
T. F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-14961 Filed 6-17-15; 8:45 am]
 BILLING CODE 4910-EX-P


[Federal Register Volume 83, Number 105 (Thursday, May 31, 2018)]
[Rules and Regulations]
[Pages 24938-24939]
[FR Doc No: 2018-11661]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0503]
RIN 1625-AA00

Safety Zone; US 68/KY 80 Lake Barkley Bridge, Cumberland River,
Canton, KY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for a
one-mile stretch of the navigable waters on of the Cumberland River,
near the U.S. 68/KY 80 Lake Barkley Bridge-Henry R. Lawrence Memorial
Bridge in Canton, KY. The safety zone is needed to protect persons,
vessels, and the marine environment from potential hazards created by
the demolition of the bridge pier. Entry of vessels or persons into
this zone is prohibited unless authorized by the Captain of the Port
Sector Ohio Valley or a designated representative.

DATES: This rule is effective without actual notice from May 31, 2018
through 6 a.m. on June 2, 2018 or until the bridge pier demolition
operation and the cleanup of the main navigable channel is complete,
whichever occurs first. For the purposes of enforcement, actual notice
will be used from 6 a.m. on May 30, 2018 through May 31, 2018.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0503 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Petty Officer Joseph Stranc, Marine Safety Unit Paducah
Waterways Division, U.S. Coast Guard; telephone<PHONE_NUMBER> ext. 2124,
email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Ohio Valley
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that
good cause exists for not publishing a notice of proposed rulemaking
(NPRM) with respect to this rule because it is impracticable. On May
16, 2018, the Coast Guard was notified of the need for immediate bridge
pier demolition operations. This safety zone must be established by May
30, 2018 and we lack sufficient time to provide a reasonable comment
period and then consider those comments before issuing this rule. The
NPRM process would delay the establishment of the safety zone until
after the scheduled dates of the bridge pier demolition and compromise
public safety.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable and contrary to public interest
because immediate action is needed to ensure safety of persons and
vessels during the US 68/KY 80 Lake Barkley Bridge pier demolition.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Captain of the Port Sector Ohio Valley (COTP) has determined
that potential hazards associated with bridge pier demolition and
clean-up operations beginning on May 30, 2018 will be a safety concern
for anyone within a one-half mile radius of the pier. The purpose of
this rule is to protect persons, vessels, and the marine environment
while the bridge pier is being demolished.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 6 a.m. on May
30, 2018 through 6 a.m. on June 2, 2018 or until the bridge pier
demolition operation and cleanup of the main navigable channel is
complete, whichever occurs first. The safety zone will cover all
navigable waters of the Cumberland River between miles 62.6 and 63.6,
and a safety vessel will coordinate all vessel traffic during the
enforcement period. The duration of the zone is intended to protect
persons, vessels, and the marine environment while the bridge pier is
demolished. No vessel or person is permitted to enter the safety zone
without obtaining permission from the COTP or a designated
representative. They may be contacted via VHF-FM marine channel 16 or
by telephone at<PHONE_NUMBER>. If permission is granted, all persons and
vessels shall comply with the instructions of the COTP Ohio Valley or a
designated representative. The COTP or a designated representative will
inform the public of the enforcement period of this safety zone through
Broadcast Notices to Mariners (BNMs), Local Notice to Mariners (LNMs),
and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size and
duration of the rule. This rule establishes a temporary safety zone
over a one-mile section of the Cumberland River for 3 days. Moreover,
the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM
marine channel 16 about the zone, and the rule allows vessels to seek
permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations

that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Commandant Instruction M16475.1D, which guide the
Coast Guard in complying with the National Environmental Policy Act of
1969 (42 U.S.C. 4321-4370f), and have determined that this action is
one of a category of actions that do not individually or cumulatively
have a significant effect on the human environment. This rule involves
a safety zone lasting 3 days that will prohibit entry within one-mile
stretch of the Cumberland River. It is categorically excluded from
further review under paragraph L 60(c) of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental
Consideration supporting this determination is available in the docket
where indicated under ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T08-0503 to read as follows:

Sec.  165.T08-0503  Safety Zone; US 68/KY 80 Lake Barkley Bridge,
Cumberland River, Canton, KY.

    (a) Location. The following area is a safety zone: All navigable
waters of the Cumberland River between miles 62.6 and 63.6 near the US
68/KY 80 Lake Barkley Bridge-Henry R. Lawrence Memorial Bridge in
Canton, KY.
    (b) Effective period. This section is effective from 6 a.m. on May
30, 2018 through 6 a.m. on June 2, 2018 or until the bridge pier
demolition operation and cleanup of the main navigable channel is
complete, whichever occurs first.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23 of this part, entry into this zone is prohibited unless
authorized by the Captain of the Port Ohio Valley (COTP) or a
designated representative. A safety vessel will coordinate all vessel
traffic during the enforcement period.
    (2) Persons or vessels desiring to enter into or pass through the
zone must request permission from the COTP or a designated
representative. They may be contacted via VHF-FM marine channel 16 or
by telephone at<PHONE_NUMBER>.
    (3) If permission is granted, all persons and vessels shall comply
with the instructions of the COTP or designated representative.
    (d) Informational broadcasts. The COTP or a designated
representative will inform the public of the enforcement period of this
safety zone through Broadcast Notices to Mariners (BNMs), Local Notice
to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs)
as appropriate.

    Dated: May 24, 2018.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2018-11661 Filed 5-30-18; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Notices]
[Pages 1532-1534]
[FR Doc No: 2012-187]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66100; File No. SR-Phlx-2011-185]

Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
the Rebates and Fees for Adding and Removing Liquidity in Select
Symbols

January 4, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\, and Rule 19b-4 thereunder,\2\ notice is hereby given
that on December 22, 2011, 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, II, and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
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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 the Rebates and Fees for Adding and
Removing Liquidity in Select Symbols in Section I, Part A of the
Exchange's Fee Schedule.
    While changes to the Fee Schedule pursuant to this proposal are
effective upon filing, the Exchange has designated these changes to be
operative on January 3, 2012.
    The text of the proposed rule change is available on the Exchange's
Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, 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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the proposed rule change is to amend Section I of
the Fee Schedule, entitled ``Rebates and Fees for Adding and Removing
Liquidity in Select Symbols,'' at Part A, entitled ``Single contra-side
orders,'' to amend the Customer Fee for Removing Liquidity to increase
the fee in order to recoup additional costs associated with paying
rebates to attract additional order flow.
    Currently, Section I of the Fee Schedule, which applies to certain
select symbols,\3\ is comprised of a Part A, single contra-side order
fees, and a Part B, Complex Order fees.\4\ There are currently several
categories of market participants: Customers, Directed Participants,\5\
Specialists,\6\ Registered Options Traders,\7\ SQTs,\8\ RSQTs,\9\
Broker-Dealers, Firms and Professionals.\10\ Currently, the Exchange
pays the following Fees for Removing Liquidity:
---------------------------------------------------------------------------

    \3\ Select symbols shall be defined as options overlying the
following symbols: AA, AAPL, ABX, AIG, ALL, AMD, AMR, AMZN, AXP,
BAC, BRCD, C, CAT, CIEN, CSCO, DELL, DIA, DRYS, EBAY, EK, F, FAS,
FAZ, FXI, GDX, GE, GLD, GLW, GS, HAL, IBM, INTC, IWM, JPM, LVS, MGM,
MSFT, MU, NEM, NOK, NVDA, ORCL, PFE, PG, POT, QCOM, QQQ, RIG, RIMM,
RMBS, SBUX, SDS, SIRI, SKF, SLV, SLW, SMH, SNDK, SPY, T, TBT, TZA,
UAL, UNG, USO, UUP, UYG, V, VALE, VXX, VZ, WYNN, X, XLF, XOM, XOP,
XRX and YHOO (``Select Symbols''). These symbols are Multiply-
Listed.
    \4\ The Rebates and Fees for Adding and Removing Liquidity in
Select Symbols will continue to apply only to electronic orders.
    \5\ A Directed Participant is a Specialist, SQT, or RSQT that
executes a customer order that is directed to them by an Order Flow
Provider and is executed electronically on PHLX XL II.
    \6\ A Specialist is an Exchange member who is registered as an
options specialist pursuant to Rule 1020(a).
    \7\ A Registered Options Trader (``ROT'') includes a Streaming
Quote Trader (``SQT''), a Remote Streaming Quote Trader (``RSQT'')
and a Non-SQT ROT, which by definition is neither a SQT or a RSQT. A
ROT is defined in Exchange Rule 1014(b) as a regular member or a
foreign currency options participant of the Exchange located on the
trading floor who has received permission from the Exchange to trade
in options for his own account. See Exchange Rule 1014 (b)(i) and
(ii).
    \8\ An SQT is defined in Exchange Rule 1014(b)(ii)(A) as an ROT
who has received permission from the Exchange to generate and submit
option quotations electronically in options to which such SQT is
assigned.
    \9\ An RSQT is defined Exchange Rule in 1014(b)(ii)(B) as an ROT
that is a member or member organization with no physical trading
floor presence who has received permission from the Exchange to
generate and submit option quotations electronically in options to
which such RSQT has been assigned. An RSQT may only submit such
quotations electronically from off the floor of the Exchange.
    \10\ The Exchange defines a ``professional'' as any person or
entity that (i) is not a broker or dealer in securities, and (ii)
places more than 390 orders in listed options per day on average
during a calendar month for its own beneficial account(s)
(hereinafter ``Professional'').

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Specialist,
                                                        Customer         Directed       ROT, SQT and         Firm        Broker-dealer     Professional
                                                                       participant          RSQT
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fee for Removing Liquidity........................           $0.29            $0.35            $0.37            $0.45            $0.45            $0.45
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Exchange proposes to increase the Customer Fee for Removing
Liquidity from $0.29 per contract to $0.31 per contract. The Exchange
is not proposing to amend any other rebates or fees in Section I.
    While changes to the Fee Schedule pursuant to this proposal are
effective upon filing, the Exchange has designated these changes to be
operative on January 3, 2012.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \11\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \12\ in
particular, in that it is an equitable allocation of reasonable fees
and other charges among Exchange members and other persons using its
facilities.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange believes that its proposal to increase the Customer
Fee for Removing Liquidity is reasonable because the Customer currently
pays the lowest Fee to Remove Liquidity and would pay the lowest fee
when compared to other market participants with this proposal. The
Exchange is filing this proposal to recoup costs associated with paying
Customers rebates to attract order flow to the Exchange.\13\ The
Exchange believes that offering such rebates incentivizes Broker-
Dealers to route Customer orders to the Exchange, which in turn should
increase liquidity and benefit all market participants.
---------------------------------------------------------------------------

    \13\ The Exchange recently increased the Rebate for Adding
Liquidity for Professionals. See Securities Exchange Act Release No.
65940 (December 12, 2011), 76 FR 78322 (December 16, 2011) (SR-Phlx-
2011-162).
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    The Exchange believes it is equitable and not unfairly
discriminatory to increase the Customer Fee for Removing Liquidity
because, as mentioned, compared to other participants the Customer
would pay the lowest Fee for Removing Liquidity and the Customer also
receive the highest Rebate for Adding Liquidity as compared to other
market participants.\14\ Also, the rebate is within the range of fees
assessed by BATS Exchange, Inc. (``BATS'').\15\
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    \14\ The Exchange recently filed a proposed rule change to
decrease the Professional Rebate for Adding Liquidity for Single
contra-side orders to $0.23 per contract. The rule change was filed
as immediately effective with an operative date of January 3, 2012.
See SR-Phlx-2011-184.
    \15\ See BATS' (BZX) Exchange Fee Schedule (a Customer pays
either a $0.27 per contract or $0.30 per contract remove fee
depending on average daily volume).
---------------------------------------------------------------------------

    The Exchange operates in a highly competitive market in which
market participants can readily direct order flow to competing venues
if they deem fee levels at a particular venue to be excessive. The
Exchange believes that the fees it charges and rebates it pays for
options overlying the various Select Symbols remain competitive with
fees and rebates charged/paid by other venues and therefore continue to
be reasonable and equitably allocated to those members that opt to
direct orders to the Exchange rather than competing venues.

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

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

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\16\ 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.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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 No. SR-Phlx-2011-185 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 No. SR-Phlx-2011-185. 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
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. SR-Phlx-2011-185 and should be
submitted on or before January 31, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-187 Filed 1-9-12; 8:45 am]
BILLING CODE 8011-01-P