Technical Amendment to Rule 19b-4: Filings With Respect to Proposed Rule Changes by Self-Regulatory Organizations, 20506-20509 [2011-8919]
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Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Rules and Regulations
Branch, ANM–116, Transport Airplane
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using the procedures found in 14 CFR 39.19.
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appropriate. If sending information directly
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Cindy Ashforth, Aerospace Engineer,
International Branch, ANM–116, Transport
Airplane Directorate, FAA, 1601 Lind
Avenue, SW., Renton, Washington 98057–
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(l) Refer to MCAI Brazilian Airworthiness
Directives 2010–06–04 and 2010–06–05, both
dated July 26, 2010, and the service
information identified in table 1 of this AD,
for related information.
TABLE 1—RELATED SERVICE INFORMATION
EMBRAER Service Bulletin
Revision
Date
170-24-0048 .................................................................................................................
190–24–0019 ...............................................................................................................
190LIN–24–0006 ..........................................................................................................
01 ..............................................................
01 ..............................................................
Original .....................................................
May 12, 2010.
May 11, 2010.
July 27, 2010.
Material Incorporated by Reference
(m) You must use the applicable service
information contained in Table 2 of this AD
to do the actions required by this AD, unless
the AD specifies otherwise.
(1) The Director of the Federal Register
approved the incorporation by reference of
this service information under 5 U.S.C.
552(a) and 1 CFR part 51.
(2) For service information identified in
this AD, contact Empresa Brasileira de
Aeronautica S.A. (EMBRAER), Technical
Publications Section (PC 060), Av. Brigadeiro
˜
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Jose dos Campos—SP—BRASIL; telephone:
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+55 12 3927–7546; e-mail:
distrib@embraer.com.br; Internet: https://
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(3) You may review copies of the service
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ibr_locations.html.
TABLE 2—MATERIAL INCORPORATED BY REFERENCE
EMBRAER Service Bulletin
Revision
Date
170–24–0048 ...............................................................................................................
190–24–0019 ...............................................................................................................
190LIN–24–0006 ..........................................................................................................
01 ..............................................................
01 ..............................................................
Original .....................................................
May 12, 2010.
May 11, 2010.
July 27, 2010.
Issued in Renton, Washington, on March
24, 2011.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 2011–8411 Filed 4–12–11; 8:45 am]
BILLING CODE 4910–13–P
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Part 240
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[Release No. 34–64251]
Technical Amendment to Rule 19b–4:
Filings With Respect to Proposed Rule
Changes by Self-Regulatory
Organizations
Securities and Exchange
Commission.
ACTION: Final rule.
AGENCY:
The Securities and Exchange
Commission (‘‘Commission’’) is
amending Rule 19b–4(a) under the
SUMMARY:
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Securities Exchange Act of 1934 (the
‘‘Exchange Act’’) so that references to
‘‘business day’’ in Section 19(b) of the
Exchange Act and Rule 19b–4
thereunder refer to a day other than a
Saturday, Sunday, Federal holiday, a
day that the U.S. Office of Personnel
Management (‘‘OPM’’) has announced
that Federal agencies in the Washington,
DC area are closed to the public, a day
on which the Commission is subject to
a Federal government shutdown in the
event of a lapse in appropriations, or a
day on which the Commission’s
Washington, DC office is otherwise not
open for regular business.
DATES:
Effective Date: April 13, 2011.
FOR FURTHER INFORMATION CONTACT:
Richard Holley III, Assistant Director, at
(202) 551–5614, Division of Trading and
Markets, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–7010.
SUPPLEMENTARY INFORMATION:
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I. Filing of SRO Proposed Rule Changes
A. Background
Section 19(b)(1) of the Exchange Act 1
requires self-regulatory organizations
(‘‘SROs’’), including national securities
exchanges, registered securities
associations, registered clearing
agencies, and the Municipal Securities
Rulemaking Board,2 to file with the
Commission any proposed rule change,3
1 15
U.S.C. 78s(b)(1).
Section 3(a)(26) of the Exchange Act, 15
U.S.C. 78c(a)(26) (defining the term ‘‘self-regulatory
organization’’ to mean any national securities
exchange, registered securities association,
registered clearing agency, and, for purposes of
Section 19(b) and other limited purposes, the
Municipal Securities Rulemaking Board).
3 Section 19(b)(1) of the Exchange Act defines a
‘‘proposed rule change’’ as ‘‘any proposed rule, or
any proposed change in, addition to, or deletion
from the rules of’’ an SRO. 15 U.S.C. 78s(b)(1).
Section 3(a)(27) of the Exchange Act defines ‘‘rules’’
to include ‘‘the constitution, articles of
incorporation, bylaws, and rules, or instruments
corresponding to the foregoing * * * and such of
the stated policies, practices, and interpretations of
such exchange, association, or clearing agency as
2 See
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Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Rules and Regulations
which must be submitted on Form 19b–
4 4 in accordance with the General
Instructions thereto. Once a proposed
rule change has been filed, the
Commission is required to publish it in
the Federal Register to provide an
opportunity for public comment.5 A
proposed rule change generally may not
take effect unless it is either approved
by the Commission pursuant to Section
19(b)(2) of the Exchange Act 6 or is
designated by the SRO to become
effective upon filing pursuant to Section
19(b)(3)(A) of the Exchange Act.7 The
Commission’s Division of Trading and
Markets, on behalf of the Commission,
is responsible for the day-to-day review
of SRO proposed rule changes.8
There may be days, in addition to
Saturday, Sunday and Federal holidays,
on which the Commission’s
Washington, DC offices are not open for
regular business. For example, a lapse in
appropriations or an announcement by
OPM that Federal agencies are closed
for business may cause the
Commission’s Washington DC offices to
not be open for regular business. To
make clear that ‘‘business day’’ does not
include those days, the Commission is
hereby adopting a technical amendment
to Rule 19b–4 to state what constitute
‘‘business days’’ for purposes of Section
19(b) under the Exchange Act and Rule
19b–4 concerning SRO proposed rule
changes.
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B. References to ‘‘Business Days’’ in
Section 19 and Rule 19b–4
Section 19(b) of the Exchange Act
provides the time frames within which
the Commission must act in connection
with reviewing and processing SRO
the Commission, by rule, may determine to be
necessary or appropriate in the public interest or for
the protection of investors to be deemed to be rules
of such exchange, association, or clearing agency.’’
15 U.S.C. 78c(a)(27). Rule 19b–4(b) under the
Exchange Act defines ‘‘stated policy, practice, or
interpretation’’ to mean, in part, ‘‘[a]ny material
aspect of the operation of the facilities of the selfregulatory organization’’ or ‘‘[a]ny statement made
generally available’’ that ‘‘establishes or changes any
standard, limit, or guideline’’ with respect to the
‘‘rights, obligations, or privileges’’ of persons or the
‘‘meaning, administration, or enforcement of an
existing rule.’’ 17 CFR 240.19b–4(b).
4 17 CFR 249.819.
5 See 15 U.S.C. 78s(b)(1). The SRO is required to
prepare the notice of its proposed rule change on
Exhibit 1 of Form 19b–4 that the Commission then
publishes in the Federal Register.
6 See 15 U.S.C. 78s(b)(2). However, as provided in
Section 19(b)(2)(D) of the Exchange Act, 15 U.S.C.
78s(b)(2)(D), a proposed rule change may be
‘‘deemed to have been approved by the
Commission’’ if the Commission fails to take action
on a proposal that is subject to Commission
approval within the statutory time frames specified
in Section 19(b)(2).
7 15 U.S.C. 78s(b)(3)(A).
8 See 17 CFR 200.30–3 (Delegation of authority to
Director of the Division of Trading and Markets).
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proposed rule changes. Some time
frames are tied to calendar days; others
are tied to business days.
In particular, Section 19(b)(10)(B) of
the Exchange Act provides that the
Commission may, within seven business
days after receipt of a filing, reject as
improperly filed a filing that does not
comply with the rules of the
Commission relating to the required
form of a proposed rule change.9 That
provision currently is the only reference
to ‘‘business day’’ contained in Section
19.
References to ‘‘business days’’ are also
found in Rule 19b–4 under the
Exchange Act. For example,
subparagraph (l) provides a two
business day deadline by which an SRO
must post a proposed rule change on its
Web site after filing it with the
Commission, and subparagraph (m)
provides a two business day deadline by
which an SRO must update its Web site
to reflect changes to the text of its
rules.10
Other references to business days,
including in paragraphs (f)(6) and (k) of
Rule 19b–4, refer to the filing by the
SRO of materials with the Commission,
which the Commission must then
review in the normal course of its
oversight of the SRO rule change
process. Specifically, Rule 19b–4(f)(6)
allows an SRO to designate certain
proposed rule changes as effective upon
filing if, among other things, the SRO
provides written notice of its intent to
file, along with a brief description and
proposed rule text (a ‘‘prefiling’’), to the
Commission at least five business days
prior to filing. In addition, Rule 19b–
4(k) specifies when a proposed rule
change is received by the Commission
and provides that if the conditions of
Rule 19b–4 and Form 19b–4 are
satisfied, a proposed rule change will be
received by and accepted as filed on a
business day if it is filed on or before
5:30 p.m. (Eastern time).11 Any filing
submitted after 5:30 p.m. on a business
day will be accepted by the Commission
but will have as its date of filing the
9 15 U.S.C. 78s(b)(10)(B). This period may be
extended to 21 calendar days if, not later than 7
business days after the date of receipt by the
Commission, the Commission notifies the SRO that
it needs additional time due to the Commission’s
determination that the proposed rule change is
unusually lengthy, complex, or raises novel
regulatory issues. If it is not rejected, Section
19(b)(10)(A) of the Exchange Act provides that the
date of filing of a proposed rule change is the ‘‘date
on which the Commission receives the proposed
rule change.’’ 15 U.S.C. 78s(b)(10)(A).
10 See 17 CFR 240.19b–4(l) and (m), respectively.
An SRO is required to post and maintain a complete
version of its rules on its Web site. See 17 CFR
240.19b–4(m)(1).
11 17 CFR 240.19b–4(k).
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20507
next business day.12 Rule 19b–4 does
not, however, define what constitutes a
‘‘business day.’’
While the Commission’s Washington
DC headquarters is routinely closed for
business on weekends (Saturdays and
Sundays) and designated Federal
holidays,13 the Commission’s
Washington DC headquarters also may
be closed for other reasons. For
example, Federal agencies may be
closed in various situations, including,
but not limited to, adverse weather, the
observance of special events in the
District of Columbia (including, but not
limited to, presidential inaugurations or
funeral observances), or any other
conditions or events that cause Federal
agencies to not open for regular
business. These types of closings may be
non-agency specific and would
generally affect most Federal agencies in
the Washington, DC metropolitan area.
For these types of closings, the OPM
disseminates the Federal government’s
operating status for the Washington, DC
area as ‘‘CLOSED’’ and publishes that
operating status on its Web site at
https://www.opm.gov.14
In addition, the Commission could be
subject to a Federal government-wide
shutdown in the event of a lapse in
Congressional appropriations resulting
in the temporary cessation of nonessential Federal government
operations. Other circumstances may
uniquely and specifically affect the
Commission’s Washington, DC
headquarters, causing the Commission
to not be open for regular business at a
time when other Federal agencies in the
Washington, DC metropolitan area may
or may not be open for regular business.
Examples of these kinds of
circumstances might include a
disturbance at or problems with the
Commission’s headquarters facilities
that cause it to close temporarily for
regular business.15
II. Amendment to Rule 19b–4(a)
The Commission is adding new
subparagraph (2) to Rule 19b–4(a) to
specify that references to ‘‘business
days’’ in Section 19 of the Exchange Act
and Rule 19b–4 mean any day other
than a Saturday, Sunday, Federal
holiday, a day that OPM has announced
that Federal agencies in the Washington,
12 See
id.
Rule 104 of the Commission’s Rules of
Practice, 17 CFR 201.104 (Business Hours).
14 These days differ from days when OPM
disseminates an ‘‘OPEN’’ status, regardless of
whether unscheduled leave or telework options are
available or whether delayed arrival or early
departure is in effect. See OPM’s Washington, DC,
Area Dismissal and Closure Procedures, available
at: https://www.opm.gov/oca/compmemo/
dismissal.pdf.
13 See
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Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Rules and Regulations
DC area are closed to the public, a day
on which the Commission is subject to
a Federal government shutdown in the
event of a lapse in appropriations, or a
day on which the Commission’s
Washington, DC office is otherwise not
open for regular business.16 The
purpose of the amendment is to clarify
the treatment of days where the
Commission is not open and how such
days impact an SRO’s proposed rule
change submitted pursuant to Rule
19b–4 and an SRO’s obligation to post
on its Web site a proposed rule change
that has been filed with the
Commission, as well as determining the
‘‘business days’’ upon which the five day
prefiling and seven day rejection
periods are measured.
The new text in Rule 19b–4(a)(2)
applies to several aspects of the
Commission’s operations concerning the
processing of SRO proposed rule change
filings. First, pursuant to Rule 19b–4(k),
proposed rule filings submitted
electronically by SROs via its Electronic
Form 19b–4 Filing System (‘‘EFFS’’) on
a day other than a business day of the
Commission will be accepted by the
Commission, but will have as their date
of filing the next business day, as
defined. For example, if the
Commission is subject to a Federal
government shutdown in the event of a
lapse in appropriations from a Monday
through a Friday, and resumes
operations the following Monday, an
SRO proposed rule change that was
submitted electronically during the
week the Federal government was shut
down would, for purposes of Section
19(b) and Rule 19b–4, receive a filing
date of the Monday the Federal
government resumes operations.
In the event of a day that the Office
of Personnel Management has
announced that Federal agencies in the
Washington, DC area are closed to the
public, a government shutdown in the
event of a lapse in appropriations, or
other circumstances that cause the
Commission to not be open for regular
business, the Commission would
expect, to the extent feasible, to
disseminate through EFFS a general
notification viewable by all SROs
reflecting that any proposed rule
changes that an SRO submits through
EFFS on such day or days will not be
‘‘filed’’ until the Commission is open for
regular business.
Further, under Rule 19b–4(f)(6), an
SRO is required to submit a prefiling at
least five business days prior to filing a
full 19b–4(f)(6) proposed rule change
with the Commission. Under new
16 The Commission is also redesignating
paragraph (a) of Rule 19b–4 as paragraph (a)(1).
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paragraph (a)(2) to Rule 19b–4, for
purposes of counting the five business
day review period, any day that is not
a business day of the Commission is not
counted. For example, if an SRO
submits a prefiling before 5:30 p.m. on
Monday, February 1, and OPM
announces that Federal agencies in the
Washington, DC area, including the
Commission, are closed due to
inclement weather on Tuesday,
February 2 and Wednesday, February 3,
and the Commission subsequently
reopens on Thursday, February 4, then
February 2 and 3 would not be counted
as ‘‘business days’’ that have elapsed for
purposes of the five day prefiling period
specified in Rule 19b–4(f)(6).
Separately, for purposes of the two
business day period within which an
SRO must post a proposed rule change
on its Web site after filing it with the
Commission, or the two business day
period within which an SRO must
update its Web site to reflect changes to
the text of its rules, any non-business
day of the Commission is not counted.17
For example, if an SRO files a proposed
rule change with the Commission on
April 1 (a business day) on or before
5:30 p.m., and the Commission
subsequently is not open for regular
business on April 2 and 3, then April 2
and 3 would not be counted as
‘‘business days’’ that have elapsed for
purposes of the Web site posting
requirement in Rule 19b–4(l).
Finally, under Section 19(b)(10)(B) of
the Exchange Act, the Commission
generally has seven business days after
the date of receipt of a filing to reject as
improperly filed a filing that does not
comply with the rules of the
Commission relating to the required
form of a proposed rule change.18 Under
new paragraph (a)(2) to Rule 19b–4, for
purposes of counting the seven business
day Commission review period, any
non-business day of the Commission is
not counted. For example, if the
Commission is not open for regular
business on February 1 and 2, but the
Commission reopens on February 3, and
an SRO had submitted a proposed rule
change filing on February 1, February 1
and 2 would not be counted as
‘‘business days’’ that have elapsed for
purposes of the seven day period
provided under Section 19(b)(10)(B)
because those days would not be
business days.
The amendment to Rule 19b–4(a)(2) is
limited solely to Section 19(b) under the
Exchange Act and Rule 19b–4
thereunder concerning SRO proposed
rule changes. By excluding as business
17 See
18 See
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17 CFR 240.19b–4(l) and (m), respectively.
supra note 9.
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days those days on which the
Commission is not open for regular
business, and therefore lacks personnel
to review proposed rule changes, the
amendment facilitates the statutory
purposes and statutory requirements for
a full and adequate review. Without the
rule change, an SRO’s proposal might go
into effect (e.g., in the case of an
immediately effective filing submitted
pursuant to Section 19(b)(3)(A) of the
Exchange Act) in the absence of
Commission review, publication in the
Federal Register, or an opportunity for
public comment, all of which are
contemplated by the Exchange Act.
Accordingly, the amendment is
intended to support the statutory
framework in which the Commission
reviews and publishes for public
comment all SRO proposed rule changes
to help ensure that SROs carry out the
purposes of the Exchange Act.19
III. Certain Findings
Under the Administrative Procedure
Act (‘‘APA’’), notice of proposed
rulemaking is not required when an
agency, for good cause, finds ‘‘that
notice and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.’’ 20 The
Commission is making a technical
amendment to Rule 19b–4 to provide
that references to ‘‘business days’’ in
Section 19 of the Exchange Act and Rule
19b–4 mean any day other than a
Saturday, Sunday, Federal holiday, a
day that the Office of Personnel
Management has announced that
Federal agencies in the Washington, DC
area are closed to the public, a day on
which the Commission is subject to a
Federal government shutdown in the
19 For example, national securities exchanges are
subject to Section 6 of the Exchange Act, 15 U.S.C.
78f, which requires, among other things, that the
rules of the SRO be designed to ‘‘prevent fraudulent
and manipulative acts and practices, to promote
just and equitable principles of trade * * * [and]
to protect investors and the public interest’’ and that
they not be designed to ‘‘permit unfair
discrimination between customers, issuers, brokers,
or dealers.’’ 15 U.S.C. 78f (b)(5). In reviewing an
SRO’s proposed rule change, Section 19(b)(2)(C) of
the Exchange Act, 15 U.S.C. 78s(b)(2)(C), provides
the standards for Commission approval of an SRO’s
proposed rule change, which direct the Commission
to consider whether the proposal is consistent with
the Exchange Act and the rules and regulations
thereunder that are applicable to the SRO. For
immediately effective filings, the Commission is
authorized to suspend the proposal ‘‘if it appears to
the Commission that such action is necessary or
appropriate in the public interest, for the protection
of investors, or otherwise in furtherance of the
purposes of [the Exchange Act].’’ 15 U.S.C.
78s(b)(3)(C). Accordingly, Commission review of
SRO proposed rule changes helps ensure that SRO
proposed rule changes are consistent with the
Exchange Act and the rules thereunder that are
applicable to the SRO.
20 5 U.S.C. 553(b).
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event of a lapse in appropriations, or a
day on which the Commission’s
Washington, DC office is otherwise
closed for regular business due to other
circumstances. The Commission finds
that because the amendment is technical
in nature and pertains to the
Commission’s organization, procedure
or practice, publishing the amendment
for comment is unnecessary.21
The APA also requires publication of
a rule at least 30 days before its effective
date unless the agency finds otherwise
for good cause.22 For the same reasons
described above with respect to notice
and the opportunity for comment, the
Commission finds good cause for this
technical amendment to take effect
immediately.
IV. Consideration of Burden on
Competition, and Promotion of
Efficiency, Competition and Capital
Formation
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Section 3(f) of the Exchange Act,23
provides that whenever the Commission
is engaged in rulemaking and is
required to consider or determine
whether an action is necessary or
appropriate in the public interest, the
Commission shall consider, in addition
to the protection of investors, whether
the action will promote efficiency,
competition, and capital formation.
Section 23(a)(2) of the Exchange Act
requires the Commission, in adopting
rules under the Exchange Act, to
consider the competitive effects of such
rules, if any, and not to adopt a rule that
would impose a burden on competition
not necessary or appropriate in the
furtherance of the purposes of the
Exchange Act.24
Because the amendment to Exchange
Act Rule 19b–4 is technical in nature,
and does not impose any additional
requirements beyond those already
required, we do not anticipate that the
amendment would have a significant
effect on efficiency, competition, or
capital formation, and we do not
anticipate that any competitive
advantages or disadvantages would be
created.
21 For similar reasons, the amendment does not
require analysis under the Regulatory Flexibility
Act (‘‘RFA’’) or analysis of major rule status under
the Small Business Regulatory Enforcement
Fairness Act. See 5 U.S.C. 601(2) (for purposes of
RFA analysis, the term ‘‘rule’’ means any rule for
which the agency publishes a general notice of
proposed rulemaking); and 5 U.S.C. 804(3)(C) (for
purposes of Congressional review of agency
rulemaking, the term ‘‘rule’’ does not include any
rule of agency organization, procedure or practice
that does not substantially affect the rights or
obligations of non-agency parties).
22 See 5 U.S.C. 553(d)(3).
23 15 U.S.C. 78c(f).
24 15 U.S.C. 78w(a)(2).
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List of Subjects in 17 CFR Part 240
Brokers, Confidential business
information, Fraud, Reporting and
recordkeeping requirements, Securities.
20509
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
Statutory Basis and Text of Rules
21 CFR Part 179
The Commission is amending 17 CFR
part 240, pursuant to authority set forth
in the Exchange Act, including Sections
19(b) and 23(a).
[Docket No. FDA–1998–F–0072] (Formerly
98F–0165)
PART 240—GENERAL RULES AND
REGULATIONS, SECURITIES
EXCHANGE ACT OF 1934
AGENCY:
1. The authority citation for part 240
continues to read in part as follows:
■
Authority: 15 U.S.C. 77c, 77d, 77g, 77j,
77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn,
77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j,
78j–1, 78k, 78k–1, 78l, 78m, 78n, 78n–1, 78o,
78p, 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm,
80a–20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–
4 and 80b–11, and 7210 et seq., 18 U.S.C.
1350, and 12 U.S.C. 5221(e)(3), unless
otherwise noted.
*
*
*
*
*
2. Amend § 240.19b–4 by:
■ a. Redesignating paragraph (a) as
paragraph (a)(1); and
■ b. Adding new paragraph (a)(2).
The addition reads as follows:
■
§ 240.19b–4 Filings with respect to
proposed rule changes by self-regulatory
organizations.
*
*
*
*
*
(a) * * *
(2) For purposes of Section 19(b) of
the Act and this rule, a ‘‘business day’’
is any day other than a Saturday,
Sunday, Federal holiday, a day that the
Office of Personnel Management has
announced that Federal agencies in the
Washington, DC area are closed to the
public, a day on which the Commission
is subject to a Federal government
shutdown or a day on which the
Commission’s Washington, DC office is
otherwise not open for regular business.
*
*
*
*
*
Dated: April 7, 2011.
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011–8919 Filed 4–12–11; 8:45 am]
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Irradiation in the Production,
Processing, and Handling of Food
Food and Drug Administration,
HHS.
Final rule; denial of requests for
a hearing and response to objections.
ACTION:
The Food and Drug
Administration (FDA) is responding to
objections and is denying requests that
it received for a hearing on the final rule
that amended the food additive
regulations to provide for the safe use of
ionizing radiation for the reduction of
Salmonella in fresh shell eggs. After
reviewing objections to the final rule
and requests for a hearing, the Agency
has concluded that the objections do not
raise issues of material fact that justify
a hearing or otherwise provide a basis
for revoking or modifying the
amendment to the regulation.
FOR FURTHER INFORMATION CONTACT:
Teresa A. Croce, Center for Food Safety
and Applied Nutrition (HFS–265), Food
and Drug Administration, 5100 Paint
Branch Pkwy., College Park, MD 20740–
3835, 301–436–1281.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Introduction
In the Federal Register of March 20,
1998 (63 FR 13675), FDA published a
notice announcing the filing of a food
additive petition (FAP), FAP 8M4584,
submitted by Edward S. Josephson,
University of Rhode Island, Food
Science and Nutrition Research Center,
to amend the regulations in part 179,
Irradiation in the Production,
Processing, and Handling of Food (21
CFR part 179), to provide for the safe
use of ionizing radiation for the
reduction of Salmonella in fresh shell
eggs. In response to the petition, FDA
issued a final rule in the Federal
Register of July 21, 2000 (65 FR 45280),
permitting the irradiation of fresh shell
eggs for the reduction of Salmonella at
doses not to exceed 3.0 kiloGray (kGy)
(hereafter referred to as the ‘‘egg
irradiation rule’’). FDA based its
decision on data in the petition and in
its files. In the preamble to the final
rule, FDA outlined the basis for its
decision and stated that objections to
the final rule and requests for a hearing
were due within 30 days of the
E:\FR\FM\13APR1.SGM
13APR1
]]>Agencies
[Federal Register Volume 76, Number 71 (Wednesday, April 13, 2011)]
[Rules and Regulations]
[Pages 20506-20509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8919]
=======================================================================
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 240
[Release No. 34-64251]
Technical Amendment to Rule 19b-4: Filings With Respect to
Proposed Rule Changes by Self-Regulatory Organizations
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: The Securities and Exchange Commission (``Commission'') is
amending Rule 19b-4(a) under the Securities Exchange Act of 1934 (the
``Exchange Act'') so that references to ``business day'' in Section
19(b) of the Exchange Act and Rule 19b-4 thereunder refer to a day
other than a Saturday, Sunday, Federal holiday, a day that the U.S.
Office of Personnel Management (``OPM'') has announced that Federal
agencies in the Washington, DC area are closed to the public, a day on
which the Commission is subject to a Federal government shutdown in the
event of a lapse in appropriations, or a day on which the Commission's
Washington, DC office is otherwise not open for regular business.
DATES: Effective Date: April 13, 2011.
FOR FURTHER INFORMATION CONTACT: Richard Holley III, Assistant
Director, at (202) 551-5614, Division of Trading and Markets,
Securities and Exchange Commission, 100 F Street, NE., Washington, DC
20549-7010.
SUPPLEMENTARY INFORMATION:
I. Filing of SRO Proposed Rule Changes
A. Background
Section 19(b)(1) of the Exchange Act \1\ requires self-regulatory
organizations (``SROs''), including national securities exchanges,
registered securities associations, registered clearing agencies, and
the Municipal Securities Rulemaking Board,\2\ to file with the
Commission any proposed rule change,\3\
[[Page 20507]]
which must be submitted on Form 19b-4 \4\ in accordance with the
General Instructions thereto. Once a proposed rule change has been
filed, the Commission is required to publish it in the Federal Register
to provide an opportunity for public comment.\5\ A proposed rule change
generally may not take effect unless it is either approved by the
Commission pursuant to Section 19(b)(2) of the Exchange Act \6\ or is
designated by the SRO to become effective upon filing pursuant to
Section 19(b)(3)(A) of the Exchange Act.\7\ The Commission's Division
of Trading and Markets, on behalf of the Commission, is responsible for
the day-to-day review of SRO proposed rule changes.\8\
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\1\ 15 U.S.C. 78s(b)(1).
\2\ See Section 3(a)(26) of the Exchange Act, 15 U.S.C.
78c(a)(26) (defining the term ``self-regulatory organization'' to
mean any national securities exchange, registered securities
association, registered clearing agency, and, for purposes of
Section 19(b) and other limited purposes, the Municipal Securities
Rulemaking Board).
\3\ Section 19(b)(1) of the Exchange Act defines a ``proposed
rule change'' as ``any proposed rule, or any proposed change in,
addition to, or deletion from the rules of'' an SRO. 15 U.S.C.
78s(b)(1). Section 3(a)(27) of the Exchange Act defines ``rules'' to
include ``the constitution, articles of incorporation, bylaws, and
rules, or instruments corresponding to the foregoing * * * and such
of the stated policies, practices, and interpretations of such
exchange, association, or clearing agency as the Commission, by
rule, may determine to be necessary or appropriate in the public
interest or for the protection of investors to be deemed to be rules
of such exchange, association, or clearing agency.'' 15 U.S.C.
78c(a)(27). Rule 19b-4(b) under the Exchange Act defines ``stated
policy, practice, or interpretation'' to mean, in part, ``[a]ny
material aspect of the operation of the facilities of the self-
regulatory organization'' or ``[a]ny statement made generally
available'' that ``establishes or changes any standard, limit, or
guideline'' with respect to the ``rights, obligations, or
privileges'' of persons or the ``meaning, administration, or
enforcement of an existing rule.'' 17 CFR 240.19b-4(b).
\4\ 17 CFR 249.819.
\5\ See 15 U.S.C. 78s(b)(1). The SRO is required to prepare the
notice of its proposed rule change on Exhibit 1 of Form 19b-4 that
the Commission then publishes in the Federal Register.
\6\ See 15 U.S.C. 78s(b)(2). However, as provided in Section
19(b)(2)(D) of the Exchange Act, 15 U.S.C. 78s(b)(2)(D), a proposed
rule change may be ``deemed to have been approved by the
Commission'' if the Commission fails to take action on a proposal
that is subject to Commission approval within the statutory time
frames specified in Section 19(b)(2).
\7\ 15 U.S.C. 78s(b)(3)(A).
\8\ See 17 CFR 200.30-3 (Delegation of authority to Director of
the Division of Trading and Markets).
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There may be days, in addition to Saturday, Sunday and Federal
holidays, on which the Commission's Washington, DC offices are not open
for regular business. For example, a lapse in appropriations or an
announcement by OPM that Federal agencies are closed for business may
cause the Commission's Washington DC offices to not be open for regular
business. To make clear that ``business day'' does not include those
days, the Commission is hereby adopting a technical amendment to Rule
19b-4 to state what constitute ``business days'' for purposes of
Section 19(b) under the Exchange Act and Rule 19b-4 concerning SRO
proposed rule changes.
B. References to ``Business Days'' in Section 19 and Rule 19b-4
Section 19(b) of the Exchange Act provides the time frames within
which the Commission must act in connection with reviewing and
processing SRO proposed rule changes. Some time frames are tied to
calendar days; others are tied to business days.
In particular, Section 19(b)(10)(B) of the Exchange Act provides
that the Commission may, within seven business days after receipt of a
filing, reject as improperly filed a filing that does not comply with
the rules of the Commission relating to the required form of a proposed
rule change.\9\ That provision currently is the only reference to
``business day'' contained in Section 19.
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\9\ 15 U.S.C. 78s(b)(10)(B). This period may be extended to 21
calendar days if, not later than 7 business days after the date of
receipt by the Commission, the Commission notifies the SRO that it
needs additional time due to the Commission's determination that the
proposed rule change is unusually lengthy, complex, or raises novel
regulatory issues. If it is not rejected, Section 19(b)(10)(A) of
the Exchange Act provides that the date of filing of a proposed rule
change is the ``date on which the Commission receives the proposed
rule change.'' 15 U.S.C. 78s(b)(10)(A).
---------------------------------------------------------------------------
References to ``business days'' are also found in Rule 19b-4 under
the Exchange Act. For example, subparagraph (l) provides a two business
day deadline by which an SRO must post a proposed rule change on its
Web site after filing it with the Commission, and subparagraph (m)
provides a two business day deadline by which an SRO must update its
Web site to reflect changes to the text of its rules.\10\
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\10\ See 17 CFR 240.19b-4(l) and (m), respectively. An SRO is
required to post and maintain a complete version of its rules on its
Web site. See 17 CFR 240.19b-4(m)(1).
---------------------------------------------------------------------------
Other references to business days, including in paragraphs (f)(6)
and (k) of Rule 19b-4, refer to the filing by the SRO of materials with
the Commission, which the Commission must then review in the normal
course of its oversight of the SRO rule change process. Specifically,
Rule 19b-4(f)(6) allows an SRO to designate certain proposed rule
changes as effective upon filing if, among other things, the SRO
provides written notice of its intent to file, along with a brief
description and proposed rule text (a ``prefiling''), to the Commission
at least five business days prior to filing. In addition, Rule 19b-4(k)
specifies when a proposed rule change is received by the Commission and
provides that if the conditions of Rule 19b-4 and Form 19b-4 are
satisfied, a proposed rule change will be received by and accepted as
filed on a business day if it is filed on or before 5:30 p.m. (Eastern
time).\11\ Any filing submitted after 5:30 p.m. on a business day will
be accepted by the Commission but will have as its date of filing the
next business day.\12\ Rule 19b-4 does not, however, define what
constitutes a ``business day.''
---------------------------------------------------------------------------
\11\ 17 CFR 240.19b-4(k).
\12\ See id.
---------------------------------------------------------------------------
While the Commission's Washington DC headquarters is routinely
closed for business on weekends (Saturdays and Sundays) and designated
Federal holidays,\13\ the Commission's Washington DC headquarters also
may be closed for other reasons. For example, Federal agencies may be
closed in various situations, including, but not limited to, adverse
weather, the observance of special events in the District of Columbia
(including, but not limited to, presidential inaugurations or funeral
observances), or any other conditions or events that cause Federal
agencies to not open for regular business. These types of closings may
be non-agency specific and would generally affect most Federal agencies
in the Washington, DC metropolitan area. For these types of closings,
the OPM disseminates the Federal government's operating status for the
Washington, DC area as ``CLOSED'' and publishes that operating status
on its Web site at https://www.opm.gov.\14\
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\13\ See Rule 104 of the Commission's Rules of Practice, 17 CFR
201.104 (Business Hours).
\14\ These days differ from days when OPM disseminates an
``OPEN'' status, regardless of whether unscheduled leave or telework
options are available or whether delayed arrival or early departure
is in effect. See OPM's Washington, DC, Area Dismissal and Closure
Procedures, available at: https://www.opm.gov/oca/compmemo/dismissal.pdf.
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In addition, the Commission could be subject to a Federal
government-wide shutdown in the event of a lapse in Congressional
appropriations resulting in the temporary cessation of non-essential
Federal government operations. Other circumstances may uniquely and
specifically affect the Commission's Washington, DC headquarters,
causing the Commission to not be open for regular business at a time
when other Federal agencies in the Washington, DC metropolitan area may
or may not be open for regular business. Examples of these kinds of
circumstances might include a disturbance at or problems with the
Commission's headquarters facilities that cause it to close temporarily
for regular business.\15\
II. Amendment to Rule 19b-4(a)
The Commission is adding new subparagraph (2) to Rule 19b-4(a) to
specify that references to ``business days'' in Section 19 of the
Exchange Act and Rule 19b-4 mean any day other than a Saturday, Sunday,
Federal holiday, a day that OPM has announced that Federal agencies in
the Washington,
[[Page 20508]]
DC area are closed to the public, a day on which the Commission is
subject to a Federal government shutdown in the event of a lapse in
appropriations, or a day on which the Commission's Washington, DC
office is otherwise not open for regular business.\16\ The purpose of
the amendment is to clarify the treatment of days where the Commission
is not open and how such days impact an SRO's proposed rule change
submitted pursuant to Rule 19b-4 and an SRO's obligation to post on its
Web site a proposed rule change that has been filed with the
Commission, as well as determining the ``business days'' upon which the
five day prefiling and seven day rejection periods are measured.
---------------------------------------------------------------------------
\16\ The Commission is also redesignating paragraph (a) of Rule
19b-4 as paragraph (a)(1).
---------------------------------------------------------------------------
The new text in Rule 19b-4(a)(2) applies to several aspects of the
Commission's operations concerning the processing of SRO proposed rule
change filings. First, pursuant to Rule 19b-4(k), proposed rule filings
submitted electronically by SROs via its Electronic Form 19b-4 Filing
System (``EFFS'') on a day other than a business day of the Commission
will be accepted by the Commission, but will have as their date of
filing the next business day, as defined. For example, if the
Commission is subject to a Federal government shutdown in the event of
a lapse in appropriations from a Monday through a Friday, and resumes
operations the following Monday, an SRO proposed rule change that was
submitted electronically during the week the Federal government was
shut down would, for purposes of Section 19(b) and Rule 19b-4, receive
a filing date of the Monday the Federal government resumes operations.
In the event of a day that the Office of Personnel Management has
announced that Federal agencies in the Washington, DC area are closed
to the public, a government shutdown in the event of a lapse in
appropriations, or other circumstances that cause the Commission to not
be open for regular business, the Commission would expect, to the
extent feasible, to disseminate through EFFS a general notification
viewable by all SROs reflecting that any proposed rule changes that an
SRO submits through EFFS on such day or days will not be ``filed''
until the Commission is open for regular business.
Further, under Rule 19b-4(f)(6), an SRO is required to submit a
prefiling at least five business days prior to filing a full 19b-
4(f)(6) proposed rule change with the Commission. Under new paragraph
(a)(2) to Rule 19b-4, for purposes of counting the five business day
review period, any day that is not a business day of the Commission is
not counted. For example, if an SRO submits a prefiling before 5:30
p.m. on Monday, February 1, and OPM announces that Federal agencies in
the Washington, DC area, including the Commission, are closed due to
inclement weather on Tuesday, February 2 and Wednesday, February 3, and
the Commission subsequently reopens on Thursday, February 4, then
February 2 and 3 would not be counted as ``business days'' that have
elapsed for purposes of the five day prefiling period specified in Rule
19b-4(f)(6).
Separately, for purposes of the two business day period within
which an SRO must post a proposed rule change on its Web site after
filing it with the Commission, or the two business day period within
which an SRO must update its Web site to reflect changes to the text of
its rules, any non-business day of the Commission is not counted.\17\
For example, if an SRO files a proposed rule change with the Commission
on April 1 (a business day) on or before 5:30 p.m., and the Commission
subsequently is not open for regular business on April 2 and 3, then
April 2 and 3 would not be counted as ``business days'' that have
elapsed for purposes of the Web site posting requirement in Rule 19b-
4(l).
---------------------------------------------------------------------------
\17\ See 17 CFR 240.19b-4(l) and (m), respectively.
---------------------------------------------------------------------------
Finally, under Section 19(b)(10)(B) of the Exchange Act, the
Commission generally has seven business days after the date of receipt
of a filing to reject as improperly filed a filing that does not comply
with the rules of the Commission relating to the required form of a
proposed rule change.\18\ Under new paragraph (a)(2) to Rule 19b-4, for
purposes of counting the seven business day Commission review period,
any non-business day of the Commission is not counted. For example, if
the Commission is not open for regular business on February 1 and 2,
but the Commission reopens on February 3, and an SRO had submitted a
proposed rule change filing on February 1, February 1 and 2 would not
be counted as ``business days'' that have elapsed for purposes of the
seven day period provided under Section 19(b)(10)(B) because those days
would not be business days.
---------------------------------------------------------------------------
\18\ See supra note 9.
---------------------------------------------------------------------------
The amendment to Rule 19b-4(a)(2) is limited solely to Section
19(b) under the Exchange Act and Rule 19b-4 thereunder concerning SRO
proposed rule changes. By excluding as business days those days on
which the Commission is not open for regular business, and therefore
lacks personnel to review proposed rule changes, the amendment
facilitates the statutory purposes and statutory requirements for a
full and adequate review. Without the rule change, an SRO's proposal
might go into effect (e.g., in the case of an immediately effective
filing submitted pursuant to Section 19(b)(3)(A) of the Exchange Act)
in the absence of Commission review, publication in the Federal
Register, or an opportunity for public comment, all of which are
contemplated by the Exchange Act. Accordingly, the amendment is
intended to support the statutory framework in which the Commission
reviews and publishes for public comment all SRO proposed rule changes
to help ensure that SROs carry out the purposes of the Exchange
Act.\19\
---------------------------------------------------------------------------
\19\ For example, national securities exchanges are subject to
Section 6 of the Exchange Act, 15 U.S.C. 78f, which requires, among
other things, that the rules of the SRO be designed to ``prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade * * * [and] to protect investors and
the public interest'' and that they not be designed to ``permit
unfair discrimination between customers, issuers, brokers, or
dealers.'' 15 U.S.C. 78f (b)(5). In reviewing an SRO's proposed rule
change, Section 19(b)(2)(C) of the Exchange Act, 15 U.S.C.
78s(b)(2)(C), provides the standards for Commission approval of an
SRO's proposed rule change, which direct the Commission to consider
whether the proposal is consistent with the Exchange Act and the
rules and regulations thereunder that are applicable to the SRO. For
immediately effective filings, the Commission is authorized to
suspend the proposal ``if it appears to the Commission that such
action is necessary or appropriate in the public interest, for the
protection of investors, or otherwise in furtherance of the purposes
of [the Exchange Act].'' 15 U.S.C. 78s(b)(3)(C). Accordingly,
Commission review of SRO proposed rule changes helps ensure that SRO
proposed rule changes are consistent with the Exchange Act and the
rules thereunder that are applicable to the SRO.
---------------------------------------------------------------------------
III. Certain Findings
Under the Administrative Procedure Act (``APA''), notice of
proposed rulemaking is not required when an agency, for good cause,
finds ``that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' \20\ The Commission
is making a technical amendment to Rule 19b-4 to provide that
references to ``business days'' in Section 19 of the Exchange Act and
Rule 19b-4 mean any day other than a Saturday, Sunday, Federal holiday,
a day that the Office of Personnel Management has announced that
Federal agencies in the Washington, DC area are closed to the public, a
day on which the Commission is subject to a Federal government shutdown
in the
[[Page 20509]]
event of a lapse in appropriations, or a day on which the Commission's
Washington, DC office is otherwise closed for regular business due to
other circumstances. The Commission finds that because the amendment is
technical in nature and pertains to the Commission's organization,
procedure or practice, publishing the amendment for comment is
unnecessary.\21\
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\20\ 5 U.S.C. 553(b).
\21\ For similar reasons, the amendment does not require
analysis under the Regulatory Flexibility Act (``RFA'') or analysis
of major rule status under the Small Business Regulatory Enforcement
Fairness Act. See 5 U.S.C. 601(2) (for purposes of RFA analysis, the
term ``rule'' means any rule for which the agency publishes a
general notice of proposed rulemaking); and 5 U.S.C. 804(3)(C) (for
purposes of Congressional review of agency rulemaking, the term
``rule'' does not include any rule of agency organization, procedure
or practice that does not substantially affect the rights or
obligations of non-agency parties).
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The APA also requires publication of a rule at least 30 days before
its effective date unless the agency finds otherwise for good
cause.\22\ For the same reasons described above with respect to notice
and the opportunity for comment, the Commission finds good cause for
this technical amendment to take effect immediately.
---------------------------------------------------------------------------
\22\ See 5 U.S.C. 553(d)(3).
---------------------------------------------------------------------------
IV. Consideration of Burden on Competition, and Promotion of
Efficiency, Competition and Capital Formation
Section 3(f) of the Exchange Act,\23\ provides that whenever the
Commission is engaged in rulemaking and is required to consider or
determine whether an action is necessary or appropriate in the public
interest, the Commission shall consider, in addition to the protection
of investors, whether the action will promote efficiency, competition,
and capital formation. Section 23(a)(2) of the Exchange Act requires
the Commission, in adopting rules under the Exchange Act, to consider
the competitive effects of such rules, if any, and not to adopt a rule
that would impose a burden on competition not necessary or appropriate
in the furtherance of the purposes of the Exchange Act.\24\
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\23\ 15 U.S.C. 78c(f).
\24\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------
Because the amendment to Exchange Act Rule 19b-4 is technical in
nature, and does not impose any additional requirements beyond those
already required, we do not anticipate that the amendment would have a
significant effect on efficiency, competition, or capital formation,
and we do not anticipate that any competitive advantages or
disadvantages would be created.
List of Subjects in 17 CFR Part 240
Brokers, Confidential business information, Fraud, Reporting and
recordkeeping requirements, Securities.
Statutory Basis and Text of Rules
The Commission is amending 17 CFR part 240, pursuant to authority
set forth in the Exchange Act, including Sections 19(b) and 23(a).
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
0
1. The authority citation for part 240 continues to read in part as
follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3,
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i,
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78p, 78q, 78s,
78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3,
80b-4 and 80b-11, and 7210 et seq., 18 U.S.C. 1350, and 12 U.S.C.
5221(e)(3), unless otherwise noted.
* * * * *
0
2. Amend Sec. 240.19b-4 by:
0
a. Redesignating paragraph (a) as paragraph (a)(1); and
0
b. Adding new paragraph (a)(2).
The addition reads as follows:
Sec. 240.19b-4 Filings with respect to proposed rule changes by self-
regulatory organizations.
* * * * *
(a) * * *
(2) For purposes of Section 19(b) of the Act and this rule, a
``business day'' is any day other than a Saturday, Sunday, Federal
holiday, a day that the Office of Personnel Management has announced
that Federal agencies in the Washington, DC area are closed to the
public, a day on which the Commission is subject to a Federal
government shutdown or a day on which the Commission's Washington, DC
office is otherwise not open for regular business.
* * * * *
Dated: April 7, 2011.
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-8919 Filed 4-12-11; 8:45 am]
BILLING CODE P
