Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices 65411 

8 39 U.S.C. 3662(a). 

9See Docket No. C2015–2, Order Granting Motion 

to Dismiss, July 15, 2015, at 12 (Order No. 2585). 

10See 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)). 

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)). 

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. 

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

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 

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 


lotter on DSK11XQN23PROD with NOTICES1
65412 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3The 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. 

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 

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. 

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, 


lotter on DSK11XQN23PROD with NOTICES1