30 Day Notice

Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices
manner that is inconsistent with title 39,
id. at 9–10, the Commission lacks
jurisdiction over the claim. Second, a
claim for retaliation does not fall within
any of the enumerated bases of the
Commission’s complaint jurisdiction as
it does not implicate the requirements of
39 U.S.C. chapter 36; 39 U.S.C. 101(d),
401(2), 403(c), 404a, or 601; or any
regulations promulgated under any of
these provisions.8
Complainant objects to the Postal
Service’s alleged noncompliance with
its own regulations, not to the
regulations themselves. Thus, the
Complaint does not fall within the
Commission’s jurisdiction under 39
U.S.C. 401(2) and neither of the first two
claims are encompassed under the
Commission’s complaint jurisdiction.
Therefore, the Postal Service’s Motion to
Dismiss is granted as to these two
claims.

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B. Undue Discrimination
Complainant’s third claim alleges a
potential violation of 39 U.S.C. 403(c)
because other similarly situated
members of his community are
receiving delivery of oversized packages
to their doors. Complaint at 4–6. The
Postal Service is prohibited from
making any undue or unreasonable
discrimination among mail users. 39
U.S.C. 403(c). When evaluating claims
of discrimination among mail users, the
Commission follows the guidance set
forth in Egger v. USPS, 436 F. Supp. 138
(W.D. Va. 1977). In Egger, the district
court held that it is ‘‘obvious that the
Postal Service may provide different
levels of delivery service to different
groups of mail users so long as the
distinctions are reasonable.’’ Egger, 436
F. Supp. at 142. Thus, the Postal Service
may differentiate among customers
where the differences have a rational
basis.9
Thus, in order to state a claim for a
violation of 39 U.S.C. 403(c), the
Commission requires a complainant to
plead three things: (1) the complainant
is receiving less favorable services than
those provided to one or more other
postal customers, (2) the complainant is
similarly situated to those postal
customers receiving more favorable
service, and (3) there is no rational or
legitimate basis for denying the
complainant the more favorable service
currently being provided to those
similarly situated postal customers.10
8 39

U.S.C. 3662(a).
9 See Docket No. C2015–2, Order Granting Motion
to Dismiss, July 15, 2015, at 12 (Order No. 2585).
10 See Docket No. C2020–2, Order Granting the
Postal Service’s Motion to Dismiss Complaint with
Prejudice, April 28, 2020, at 8 (Order No. 5491)

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The Postal Service, solely for the
purposes of the Motion to Dismiss,
accepts that Complainant can meet the
first two prongs. Motion to Dismiss at
12. The third prong of the test used to
determine whether a 403(c) claim is
actionable is that there is no rational or
legitimate basis for the Postal Service to
deny the Complainant the more
favorable rates or terms and conditions
offered to others.11 The Postal Service
argues that delivery to homes outside of
the half-mile radius violates Postal
Service policy, and that constitutes a
legitimate basis for the Postal Service to
deny Mr. Edwards more favorable rates,
terms, or conditions offered to others.
Motion to Dismiss at 12–13.
The Commission finds that this
argument ignores the fact that, if
Complainant can meet the first two
prongs of the test, it means that other
customers are receiving those exact
‘‘rates or terms and conditions’’ in
violation of Postal Service policy.
Accepting the Postal Service’s argument
on this point would in effect request the
Commission to ignore potential
discrimination because its preferential
treatment of other customers violates its
own policies. Thus, the Commission
finds the Postal Service’s arguments on
the Complaint’s failure to state a claim
unpersuasive. Therefore, the Postal
Service’s Motion to Dismiss is denied as
it relates to the potential violation of 39
U.S.C. 403(c) pursuant to 39 U.S.C.
3662(b).
The outstanding issues of fact
required to resolve whether a violation
of 39 U.S.C. 403(c) occurred are:
1. Whether any similarly situated
postal customers in Complainant’s
neighborhood are receiving delivery of
oversized packages to their doors.
2. Whether postal management
followed non-discriminatory processes
in the discontinuation of door delivery
of oversized packages to Complainant’s
residence.
Pursuant to 39 CFR 3010.106, the
Commission appoints John Avila to
serve as presiding officer to ascertain
outstanding issues of material fact in
this matter. Parties may request that the
presiding officer obtain specific
discovery but may not independently
propound discovery. The presiding
officer shall examine the disputed
issues identified above and provide a
public, written intermediate decision
including findings of fact and
(citing Docket No. 2009–1, Order on Complaint,
April 20, 2011, at 28 (Order No. 718)).
11 Docket No. C2020–2, Order Granting the Postal
Service’s Motion to Dismiss Complaint with
Prejudice, April 28, 2020, at 8 (Order No. 5491)
(citing Docket No. 2009–1, Order on Complaint,
April 20, 2011, at 28 (Order No. 718)).

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65411

conclusions of law on the issues raised
in this proceeding. 39 CFR 3010.335.
The Commission finds good cause to
waive the appointment of an officer of
the Commission designated to represent
the interests of the general public in this
proceeding as required by 39 CFR
30.30(c) because the violations alleged
in the Complaint pertain solely to
Complainant rather than the general
public.
IV. Ordering Paragraphs
It is ordered:
1. The Commission finds that the
Complaint of Mark Allan Edwards, filed
July 7, 2023, raises material issues of
fact.
2. The United States Postal Service’s
Motion to Dismiss the Complaint of
Mark Allan Edwards, filed July 27,
2023, is granted on all grounds except
for the claim related to the alleged
violation of 39 U.S.C. 403(c).
3. Pursuant to 39 CFR 3010.106, the
Commission appoints John Avila as a
presiding officer in this proceeding.
4. Parties may request that the
presiding officer obtain specific
discovery but may not independently
propound discovery.
5. The presiding officer shall,
pursuant to 39 CFR 3010.335, provide a
public written intermediate decision
including findings of fact and
conclusions of law on the issues raised
in this proceeding.
6. The Secretary shall arrange for
publication of this Order in the Federal
Register.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2023–20560 Filed 9–21–23; 8:45 am]
BILLING CODE 7710–FW–P

SECURITIES AND EXCHANGE
COMMISSION
[SEC File No. 270–037, OMB Control No.
3235–0031]

Submission for OMB Review;
Comment Request; Extension: Rule
17f–2(e)
Upon Written Request, Copies Available
From: Securities and Exchange
Commission, Office of FOIA Services,
100 F Street NE, Washington, DC
20549–2736.
Notice is hereby given that pursuant
to the Paperwork Reduction Act of 1995
(‘‘PRA’’) (44 U.S.C. 3501 et seq.), the
Securities and Exchange Commission
(‘‘Commission’’) has submitted to the
Office of Management and Budget
(‘‘OMB’’) a request for approval of

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65412

Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices

extension of the previously approved
collection of information provided for in
Rule 17f–2(e) (17 CFR 240.17f–2(e)),
under the Securities Exchange Act of
1934 (15 U.S.C. 78a et seq.).
Rule 17f–2(e) requires every member
of a national securities exchange,
broker, dealer, registered transfer agent,
and registered clearing agency (‘‘covered
entities’’) claiming an exemption from
the fingerprinting requirements of Rule
17f–2 to make and keep current a
statement entitled ‘‘Notice Pursuant to
Rule 17f–2’’ (‘‘Notice’’) containing the
information specified in paragraph (e)(1)
to support their claim of exemption.
Rule 17f–2(e) contains no filing
requirement. Instead, paragraph (e)(2)
requires covered entities to keep a copy
of the Notice in an easily accessible
place at the organization’s principal
office and at the office employing the
persons for whom exemptions are
claimed and to make the Notice
available upon request for inspection by
the Commission, appropriate regulatory
agency (if not the Commission), or other
designated examining authority. Notices
prepared pursuant to Rule 17f–2(e) must
be maintained for different lengths of
time depending on the type of entity
maintaining the Notice. Under Rule
240.17a–1, every registered clearing
agency must keep and preserve at least
one copy of all documents made or
received by it in the course of its
business for a period of not less than
five years. Under Rule 240.17a–4 certain
members of national securities
exchanges, brokers, and dealers must
maintain the Notice during the life of
their enterprise. Under Rule 240.17Ad–
7, registered transfer agents must
maintain the Notice in an easily
accessible place. The recordkeeping
requirement under Rule 17f–2(e) assists
the Commission and other regulatory
agencies with ensuring compliance with
Rule 17f–2. This rule does not involve
the collection of confidential
information.
We estimate that approximately 75
respondents will incur an average
burden of 30 minutes per year to
comply with this rule, which represents
the time it takes for a staff person at a
covered entity to properly document a
claimed exemption from the
fingerprinting requirements of Rule 17f–
2 in the required Notice and to properly
retain the Notice according to the
entity’s record retention policies and
procedures. The total annual burden for
all covered entities is approximately 38
hours (75 entities × .5 hours, rounded
up).
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information

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under the PRA unless it displays a
currently valid OMB control number.
The public may view background
documentation for this information
collection at the following website:
www.reginfo.gov. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function. Written comments and
recommendations for the proposed
information collection should be sent by
October 23, 2023 to (i) www.reginfo.gov/
public/do/PRAMain and (ii) David
Bottom, Director/Chief Information
Officer, Securities and Exchange
Commission, c/o John Pezzullo, 100 F
Street NE, Washington, DC 20549, or by
sending an email to: PRA_Mailbox@
sec.gov.
Dated: September 18, 2023.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023–20528 Filed 9–21–23; 8:45 am]
BILLING CODE 8011–01–P

SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–98420; File No. SR–
CboeBZX–2023–071]

Self-Regulatory Organizations; Cboe
BZX Exchange, Inc.; Notice of Filing
and Immediate Effectiveness of a
Proposed Rule Change To Amend Its
Fee Schedule Related to the Options
Regulatory Fee
September 18, 2023.

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
September 12, 2023, Cboe BZX
Exchange, Inc. (the ‘‘Exchange’’ or
‘‘BZX’’) filed with the Securities and
Exchange Commission (‘‘SEC’’ or
‘‘Commission’’) the proposed rule
change as described in Items I and II,
below, which Items have been prepared
by the Exchange. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
Cboe BZX Exchange, Inc. (the
‘‘Exchange’’ or ‘‘BZX’’) proposes to
amend its Fee Schedule related to the
Options Regulatory Fee. The text of the
proposed rule change is provided in
Exhibit 5.
1 15
2 17

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U.S.C. 78s(b)(1).
CFR 240.19b–4.

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The text of the proposed rule change
is also available on the Exchange’s
website (http://markets.cboe.com/us/
equities/regulation/rule_filings/bzx/), 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 increase
the Options Regulatory Fee (‘‘ORF’’)
from $0.0001 per contract to $0.0003 per
contract.3
The ORF is assessed by BZX Options
to each Member for options transactions
cleared by the Member that are cleared
by the Options Clearing Corporation
(‘‘OCC’’) in the customer range,
regardless of the exchange on which the
transaction occurs. In other words, the
Exchange imposes the ORF on all
customer-range transactions cleared by a
Member, even if the transactions do not
take place on the Exchange. The ORF is
collected by OCC on behalf of the
Exchange from the Clearing Member or
non-Member that ultimately clears the
transaction. With respect to linkage
transactions, BZX Options reimburses
its routing broker providing Routing
Services (pursuant to BZX Options Rule
21.9) for options regulatory fees it incurs
in connection with the Routing Services
it provides.
Revenue generated from ORF, when
combined with all of the Exchange’s
other regulatory fees and fines, is
designed to recover a material portion of
the regulatory costs to the Exchange of
the supervision and regulation of
Member customer options business
including performing routine
surveillances, investigations,
3 The Exchange initially filed the proposed fee
change on September 1, 2023 (SR–CboeBZX–2023–
066). On September 12, 2023, the Exchange
withdrew that filing and submitted this filing.

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