[Federal Register Volume 83, Number 54 (Tuesday, March 20, 2018)]
[Notices]
[Pages 12221-12227]
[FR Doc No: 2018-05551]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 33047; File No. 812-14848]

Triloma EIG Energy Income Fund, et al.

March 14, 2018.
AGENCY:  Securities and Exchange Commission (``Commission'').

ACTION:  Notice.

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    Notice of application for an order under sections 17(d) and 57(i)
of the Investment Company Act of 1940 (the ``Act'') and rule 17d-1
under the Act to permit certain joint transactions otherwise prohibited
by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
    Summary of Application: Applicants request an order to permit
certain business development companies (``BDC'') and closed-end
management investment companies to co-invest in portfolio companies
with each other and with affiliated investment funds.
    Applicants: Triloma EIG Energy Income Fund (the ``Perpetual
Fund''), Triloma EIG Energy Income Fund--Term I (the ``Term Fund'' and,
together with the Perpetual Fund, the ``Existing Regulated Entities'');
Triloma Energy Advisors, LLC (``Triloma''); EIG Credit Management
Company, LLC (``EIG''); EIG Asset Management, LLC, EIG Funds
Management, LLC, EIG Management Company, LLC, EIG Global Energy (Asia)
Limited, EIG Harbour Energy Advisor, L.P. (collectively, together with
EIG, the ``Existing EIG Advisors''); EIG-Gateway Direct Investments,
L.P., EIG Energy Fund XVI, L.P., EIG Energy Fund XVI-B, L.P., EIG
Energy Fund XVI-E, L.P., EIG Energy Fund XVI (Cayman), L.P., EIG Energy
Fund XVI (Scotland), L.P., EIG-Keats Energy Partners, L.P., NYCRS EIG
Energy Partners, L.P., EIG Sunsuper Co-Investment, L.P., EIG Global
Private Debt Fund-A, L.P., EIG Global Private Debt Fund-A (UL), L.P.,
EIG Global Private Debt Sub B (UL), L.P., EIG Energy Fund XVII, L.P.,
EIG Energy Fund XVII-B, L.P., EIG Energy Fund XVII (Scotland), L.P.,
EIG Energy Fund XVII (Cayman), L.P., EIG-Emerson Energy Partners, L.P.,
and Harbour Energy Ltd. (collectively, the ``Existing Affiliated
Investors'').
    Filing Dates: The application was filed on November 30, 2017, and
amended on February 15, 2018.
    Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on April 9, 2018, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Pursuant to rule 0-5 under the Act, hearing
requests should state the nature of the writer's interest, any facts
bearing upon the desirability of a hearing on the matter, the reason
for the request, and the issues contested. Persons who wish to be
notified of a hearing may request notification by writing to the
Commission's Secretary.

ADDRESSES:  Secretary, U.S. Securities and Exchange Commission, 100 F
St. NE, Washington, DC 20549-1090. Applicants: Triloma and the Existing

Regulated Entities: 201 N. New York Avenue, Suite 200, Winter Park, FL
32789; the Existing EIG Advisors and the Existing Affiliated Investors:
1700 Pennsylvania Ave. NW, Suite 800, Washington, DC 20006.

FOR FURTHER INFORMATION CONTACT:  Hae-Sung Lee, Attorney-Adviser, at
(202) 551-7345 or Robert H. Shapiro, Branch Chief, at<PHONE_NUMBER>
(Chief Counsel's Office, Division of Investment Management).

SUPPLEMENTARY INFORMATION:  The following is a summary of the
application. The complete application may be obtained via the
Commission's website by searching for the file number, or for an
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling<PHONE_NUMBER>.
    Applicants' Representations:
    1. Term Fund was organized under the Delaware Statutory Trust Act
for the purpose of operating as an externally-managed, non-diversified,
closed-end management investment company. Term Fund is a registered
investment company under the Act. Term Fund's Objectives and Strategies
\1\ are to provide shareholders with current income; as secondary
investment objective, the Term Fund will seek to provide capital
preservation and, to a lesser extent, long-term capital appreciation by
investing primarily in a global portfolio of privately originated
energy company and project debt. Term Fund has a five member Board,\2\
of which three members are Independent Trustees,\3\ one member is
considered an ``interested person'' of Triloma, within the meaning of
section 2(a)(19) of the Act, and one member is considered an
``interested person'' of EIG.
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    \1\ ``Objectives and Strategies'' means a Regulated Entity's (as
defined below) investment objectives and strategies, as described in
the Regulated Entity's registration statement on Form N-2, other
filings the Regulated Entity has made with the Commission under the
Securities Act of 1933 (the ``Securities Act''), or under the
Securities Exchange Act of 1934, and the Regulated Entity's reports
to shareholders.
    \2\ The term ``Board'' refers to the board of directors or
trustees of any Regulated Entity.
    \3\ The term ``Independent Trustees'' refers to the trustees or
directors of any Regulated Entity that are not ``interested
persons'' of the Regulated Entity within the meaning of section
2(a)(19) of the Act.
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    2. Perpetual Fund was organized under the Delaware Statutory Trust
Act for the purpose of operating as an externally-managed, non-
diversified, closed-end management investment company. Perpetual Fund
is a registered investment company under the Act. Perpetual Fund has
the same Objectives and Strategies as Term Fund. Perpetual Fund will be
governed by a Board comprised of the same trustees (including
Independent Trustees) that serve as the Board of Term Fund.
    3. Triloma is a Florida limited liability company and is registered
as an investment adviser under the Investment Advisers Act of 1940 (the
``Advisers Act''). Triloma serves as the investment adviser to the
Existing Regulated Entities. Triloma also provides administrative
services to the Existing Regulated Entities under an administrative
services agreement.
    4. EIG is a Delaware limited liability company and is registered as
an investment adviser under the Advisers Act. EIG serves as the sub-
adviser to the Existing Regulated Entities. EIG is an indirectly owned
subsidiary of EIG Global Energy Partners, LLC (``EIG Partners'').
    5. Each Existing Affiliated Investors is a privately-offered fund
that would be an investment company but for section 3(c)(1) or 3(c)(7)
of the Act. An Existing EIG Advisor serves as the investment adviser to
each Existing Affiliated Investor. Each Existing EIG Advisor is either,
directly or indirectly, controlled by EIG Partners or under common
control with EIG and is registered as an investment adviser under the
Advisers Act.
    6. Applicants seek to supersede the Prior Order \4\ to permit one
or more Regulated Entities \5\ and/or one or more Affiliated Investors
\6\ to participate in the same investment opportunities through a
proposed co-investment program (the ``Co-Investment Program'') where
such participation would otherwise be prohibited under sections 17(d)
and 57(a)(4) and the rules under the Act. For purposes of the
application, ``Co-Investment Transaction'' means any transaction in
which a Regulated Entity (or its Wholly-Owned Investment Subsidiary, as
defined below) participated together with one or more other Regulated
Entities and/or one or more Affiliated Investors in reliance on the
requested Order. ``Potential Co-Investment Transaction'' means any
investment opportunity in which a Regulated Entity (or its Wholly-Owned
Investment Subsidiary) could not participate together with one or more
Affiliated Investors and/or one or more other Regulated Entities
without obtaining and relying on the Order.\7\ The term ``Advisor''
means any Triloma Advisor or any EIG Advisor.
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    \4\ The requested order (the ``Order'') would supersede an
exemptive order issued by the Commission on May 31, 2016 (the
``Prior Order'') that was granted pursuant to Sections 57(a)(4) and
57(i) and Rule 17d-1, with the result that no person will continue
to rely on the Prior Order if the Order is granted. Triloma EIG
Global Energy Fund, et al., Investment Company Act Release Nos.
32106 (May 5, 2016) (notice) and 32132 (May 31, 2016) (order).
    \5\ ``Regulated Entity'' means any of the Existing Regulated
Entities and any Future Regulated Entity. ``Future Regulated
Entity'' means a closed-end management investment company (a) that
is registered under the Act or has elected to be regulated as a BDC
under the Act, and either (b) whose investment adviser is a Triloma
Advisor and whose investment sub-adviser is an EIG Advisor or (c)
whose investment adviser is an EIG Advisor. ``Triloma Advisor''
means Triloma or any future investment adviser that (i) controls, is
controlled by or is under common control with Triloma, (ii) is
registered as an investment adviser under the Advisers Act and (iii)
is not a Regulated Entity or a subsidiary of a Regulated Entity.
``EIG Advisor'' means any Existing EIG Advisor or any future
investment adviser that (i) controls, is controlled by or is under
common control with EIG, (ii) is registered as an investment adviser
under the Advisers Act, and (iii) is not a Regulated Entity or a
subsidiary of a Regulated Entity.
    \6\ ``Affiliated Investors'' means the Existing Affiliated
Investors and any Future Affiliated Investor. ``Future Affiliated
Investor'' means an entity (a) whose investment adviser is an EIG
Advisor and (b) that would be an investment company but for section
3(c)(1) or 3(c)(7) of the Act.
    \7\ All existing entities that currently intend to rely upon the
requested Order have been named as applicants. Any other existing or
future entity that subsequently relies on the Order will comply with
the terms and conditions of the application.
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    7. Applicants state that a Regulated Entity may, from time to time,
form a Wholly-Owned Investment Subsidiary.\8\ Such a subsidiary would
be prohibited from investing in a Co-Investment Transaction with any
Affiliated Investor because it would be a company controlled by its
parent Regulated Entity for purposes of section 57(a)(4) and rule 17d-
1. Applicants request that each Wholly-Owned Investment Subsidiary be
permitted to participate in Co-Investment Transactions in lieu of its
parent Regulated Entity and that the Wholly-Owned Investment
Subsidiary's participation in any such transaction be treated, for
purposes of the requested Order, as though the parent Regulated

Entity were participating directly. Applicants represent that this
treatment is justified because a Wholly-Owned Investment Subsidiary
would have no purpose other than serving as a holding vehicle for the
Regulated Entity's investments and, therefore, no conflicts of interest
could arise between the Regulated Entity and the Wholly-Owned
Investment Subsidiary. The Regulated Entity's Board would make all
relevant determinations under the conditions with regard to a Wholly-
Owned Investment Subsidiary's participation in a Co-Investment
Transaction, and the Regulated Entity's Board would be informed of, and
take into consideration, any proposed use of a Wholly-Owned Investment
Subsidiary in the Regulated Entity's place. If the Regulated Entity
proposes to participate in the same Co-Investment Transaction with any
of its Wholly-Owned Investment Subsidiaries, the Board will also be
informed of, and take into consideration, the relative participation of
the Regulated Entity and the Wholly-Owned Investment Subsidiary.
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    \8\ The term ``Wholly-Owned Investment Subsidiary'' means an
entity (i) that is wholly-owned by a Regulated Entity (with such
Regulated Entity at all times holding, beneficially and of record,
100% of the voting and economic interests); (ii) whose sole business
purpose is to hold one or more investments on behalf of the
Regulated Entity (and, in the case of an entity that is licensed by
the Small Business Administration to operate under the Small
Business Investment Act of 1958, as amended (the ``SBA Act''), as a
small business investment company (an ``SBIC''), to maintain a
license under the SBA Act and issue debentures guaranteed by the
Small Business Administration); (iii) with respect to which the
Regulated Entity's Board has the sole authority to make all
determinations with respect to the entity's participation under the
conditions of the application; and (iv) that would be an investment
company but for section 3(c)(1) or 3(c)(7) of the Act. All
subsidiaries participating in the Co-Investment Program will be
Wholly-Owned Investment Subsidiaries and will have Objectives and
Strategies that are either substantially the same as, or a subset
of, their parent Regulated Entity's Objectives and Strategies. A
subsidiary that is an SBIC may be a Wholly-Owned Investment
Subsidiary if it satisfies the conditions in this definition.
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    8. It is anticipated that an EIG Advisor will periodically
determine that certain investments the EIG Advisor recommends for a
Regulated Entity would also be appropriate investments for one or more
other Regulated Entities and/or one or more Affiliated Investors. Such
a determination may result in the Regulated Entity, one or more other
Regulated Entities and/or one or more Affiliated Investors co-investing
in certain investment opportunities. For each such investment
opportunity, the Advisors to each Regulated Entity will independently
analyze and evaluate the investment opportunity as to its
appropriateness for such Regulated Entity taking into consideration the
Regulated Entity's Objectives and Strategies.
    9. Applicants state that Triloma serves as the Existing Regulated
Entities' investment adviser and administrator and EIG serves as the
Existing Regulated Entities' sub-adviser, and with respect to any
Future Regulated Entity, either (i) Triloma or another Triloma Advisor
and EIG or another EIG Advisor will serve in the same capacities as
with Existing Regulated Entities, or (ii) EIG or another EIG Advisor
will serve as investment adviser. Applicants represent that although an
EIG Advisor will identify and recommend investments \9\ for each
Regulated Entity for which Triloma or another Triloma Advisor serves as
investment advisor, prior to any investment by such Regulated Entity,
the EIG Advisor will present each proposed investment to the Triloma
Advisor which has the authority to approve or reject all investments
proposed for the Regulated Entity by the EIG Advisor. With respect to
any Future Regulated Entity for which EIG or another EIG Advisor serves
as investment adviser, rather than sub-adviser, EIG or such other EIG
Advisor will be responsible for the overall management of the Future
Regulated Entity's activities, and for the day-to-day management of the
Future Regulated Entity's investment portfolio, in each case consistent
with its fiduciary duties and pursuant to the terms of an Advisory
Agreement with the Future Regulated Entity.
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    \9\ Applicants represent that the Triloma Advisors will not
source any Potential Co-Investment Transactions under the requested
Order.
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    10. Applicants state that each EIG Advisor has (or will have, in
the case of future advisers) an investment committee through which it
will carry out its obligation under condition 1 to make a determination
as to the appropriateness of a Potential Co-Investment Transaction for
each Regulated Entity. Applicants represent that each EIG Advisor, as a
registered investment adviser, has (or will have, in the case of future
advisers) developed a robust allocation process that is designed to
allocate investment opportunities fairly and equitably among its
clients over time. Applicants state that, in the case of a Potential
Co-Investment Transaction, the applicable EIG Advisor would apply its
allocation policies and procedures in determining the proposed
allocation for the Regulated Entity consistent with the requirements of
condition 2(a).
    11. Applicants state that, once the applicable EIG Advisor
determined a proposed allocation for a Regulated Entity for which
Triloma or another Triloma Advisor serves as investment adviser, such
EIG Advisor would notify the applicable Triloma Advisor of the
Potential Co-Investment Transaction and the EIG Advisor's recommended
allocation for such Regulated Entity. Applicants further state that the
applicable Triloma Advisor would then present the Potential Co-
Investment Transaction and the EIG Advisor's proposed allocation to the
Triloma Advisor's investment committee for its approval. Applicants
represent that the Triloma Advisor's investment committee would review
the EIG Advisor's recommendation for the Regulated Entity and would
have the ability to ask questions of the EIG Advisor and request
additional information from the EIG Advisor. Applicants further submit
that if the Triloma Advisor's investment committee approved the
investment for the Regulated Entity, the investment and all relevant
allocation information would then be presented to the Regulated
Entity's Board for its approval in accordance with the conditions to
the application. Applicants state that they believe the investment
process between the EIG Advisors and the Triloma Advisors, prior to
seeking approval from the Regulated Entity's Board (which is in
addition to, rather than in lieu of, the procedures required under the
conditions of the application), is significant and provides for
additional procedures and processes to ensure that the Regulated Entity
is being treated fairly in respect of Potential Co-Investment
Transactions.
    12. If the Advisors to a Regulated Entity determine that a
Potential Co-Investment Opportunity is appropriate for the Regulated
Entity (and the applicable Triloma Advisor approves the investment for
such Regulated Entity), and one or more other Regulated Entities and/or
one or more Affiliated Investors may also participate, the Advisors
will present the investment opportunity to the Eligible Trustees \10\
of the Regulated Entity prior to the actual investment by the Regulated
Entity. As to any Regulated Entity, a Co-Investment Transaction will be
consummated only upon approval by a required majority of the Eligible
Trustees of such Regulated Entity within the meaning of section 57(o)
of the Act (``Required Majority'').\11\
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    \10\ ``Eligible Trustees'' means the trustees or directors of a
Regulated Entity that are eligible to vote under section 57(o) of
the Act.
    \11\ In the case of a Regulated Entity that is a registered
closed-end fund, the trustees or directors that make up the Required
Majority will be determined as if the Regulated Entity were a BDC
subject to section 57(o). As defined in section 57(o), ``required
majority'' means ``both a majority of a business development
company's directors or general partners who have no financial
interest in such transaction, plan, or arrangement and a majority of
such directors or general partners who are not interested persons of
such company.''
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    13. With respect to the pro rata dispositions and follow-on
Investments provided in conditions 7 and 8, a Regulated Entity may
participate in a pro rata disposition or follow-on Investment without
obtaining prior approval of the Required Majority if, among other
things: (i) The proposed participation of each Regulated Entity and
Affiliated Investor in such disposition is proportionate to its
outstanding investments in the issuer immediately preceding the
disposition or follow-on investment, as the case may be; and (ii) each
Regulated Entity's Board has approved that Regulated Entity's
participation in pro rata

dispositions and follow-on investments as being in the best interests
of the Regulated Entity. If the Board does not so approve, any such
disposition or follow-on investment will be submitted to the Regulated
Entity's Eligible Trustees. The Board of any Regulated Entity may at
any time rescind, suspend or qualify its approval of pro rata
dispositions and follow-on investments with the result that all
dispositions and/or follow-on investments must be submitted to the
Eligible Trustees.
    14. No Independent Trustee of a Regulated Entity will have a
financial interest in any Co-Investment Transaction.
    15. Under condition 15, if an Advisor or its principals, or any
person controlling, controlled by, or under common control with the
Advisor or its the principals, and any Affiliated Investors
(collectively, the ``Holders'') own in the aggregate more than 25% of
the outstanding voting securities of a Regulated Entity (``Shares''),
then the Holders will vote such Shares as directed by an independent
third party when voting on matters specified in the condition.
Applicants believe that this condition will ensure that the Independent
Trustees will act independently in evaluating the Co-Investment
Program, because the ability of the Advisor or its principals to
influence the Independent Trustees by a suggestion, explicit or
implied, that the Independent Trustees can be removed will be limited
significantly. Applicants represent that the Independent Trustees shall
evaluate and approve any such independent third party, taking into
account its qualifications, reputation for independence, cost to the
shareholders, and other factors that they deem relevant.
    Applicants' Legal Analysis:
    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
participation by a registered investment company and an affiliated
person in any ``joint enterprise or other joint arrangement or profit-
sharing plan,'' as defined in the rule, without prior approval by the
Commission by order upon application. Section 17(d) of the Act and rule
17d-1 under the Act are applicable to Regulated Entities that are
registered closed-end investment companies. Similarly, with regard to
BDCs, section 57(a)(4) of the Act makes it unlawful for any person who
is related to a BDC in a manner described in section 57(b), acting as
principal, knowingly to effect any transaction in which the BDC (or a
company controlled by such BDC) is a joint or a joint and several
participant with that person in contravention of rules as prescribed by
the Commission. Because the Commission has not adopted any rules
expressly under section 57(a)(4), section 57(i) provides that the rules
under section 17(d) applicable to registered closed-end investment
companies (e.g., rule 17d-1) are, in the interim, deemed to apply to
transactions subject to section 57(a). Rule 17d-1, as made applicable
to BDCs by section 57(i), prohibits any person who is related to a BDC
in a manner described in section 57(b), as modified by rule 57b-1, from
acting as principal, from participating in, or effecting any
transaction in connection with, any joint enterprise or other joint
arrangement or profit-sharing plan in which the BDC (or a company
controlled by such BDC) is a participant, unless an application
regarding the joint enterprise, arrangement, or profit-sharing plan has
been filed with the Commission and has been granted by an order entered
prior to the submission of the plan or any modification thereof, to
security holders for approval, or prior to its adoption or modification
if not so submitted.
    2. In passing upon applications under rule 17d-1, the Commission
considers whether the company's participation in the joint transaction
is consistent with the provisions, policies, and purposes of the Act
and the extent to which such participation is on a basis different from
or less advantageous than that of other participants.
    3. Applicants submit that Each Regulated Entity may be deemed to be
an ``affiliated person'' of each other Regulated Entity within the
meaning of section 2(a)(3) of the Act. Applicants state that the
Regulated Entities, by virtue of each having either a Triloma Advisor
as investment adviser and an EIG Advisor as sub-adviser, or an EIG
Advisor as an investment adviser, may be deemed to be under common
control, and thus affiliated persons of each other under section
2(a)(3)(C) of the Act. Section 17(d) and section 57(b) apply to any
investment adviser to a closed-end fund or a BDC, respectively,
including the sub-adviser. Thus, an EIG Advisor and any Regulated
Entities or Affiliated Investors that it advises could be deemed to be
persons related to other Regulated Entities it advises or sub-advises
in a manner described by sections 17(d) and 57(b) and therefore
prohibited by sections 17(d) and 57(a)(4) and rule 17d-1 from
participating in the Co-Investment Program. Applicants further submit
that, because the EIG Advisors are ``affiliated persons'' of other EIG
Advisors, Regulated Entities, and Affiliated Investors advised by any
of them could be deemed to be persons related to other Regulated
Entities (or a company controlled by a Regulated Entity) advised or
sub-advised by any of them in a manner described by sections 17(d) and
57(b) and also prohibited from participating in the Co-Investment
Program.
    4. Applicants state that they expect that that co-investment in
portfolio companies by a Regulated Entity, one or more other Regulated
Entities and/or one or more Affiliated Investors will increase
favorable investment opportunities for each Regulated Entity.
    5. Applicants submit that the fact that the Required Majority will
approve each Co-Investment Transaction before investment (except for
certain dispositions or follow-on investments, as described in the
conditions), and other protective conditions set forth in the
application, will ensure that each Regulated Entity will be treated
fairly. Applicants state that each Regulated Entity's participation in
the Co-Investment Transactions will be consistent with the provisions,
policies and purposes of the Act and on a basis that is not different
from or less advantageous than that of other participants. Applicants
further state that the terms and conditions proposed herein will ensure
that all such transactions are reasonable and fair to each Regulated
Entity and the Affiliated Investors and do not involve overreaching by
any person concerned, including Triloma or EIG.
    Applicants' Conditions:
    Applicants agree that the Order will be subject to the following
conditions:
    1. Each time an EIG Advisor considers a Potential Co-Investment
Transaction for an Affiliated Investor or another Regulated Entity that
falls within a Regulated Entity's then-current Objectives and
Strategies, the Advisors to the Regulated Entity will make an
independent determination of the appropriateness of the investment for
the Regulated Entity in light of the Regulated Entity's then-current
circumstances.
    2. a. If the Advisors to a Regulated Entity deem participation in
any Potential Co-Investment Transaction to be appropriate for the
Regulated Entity, the Advisors will then determine an appropriate level
of investment for such Regulated Entity.
    b. If the aggregate amount recommended by the Advisors to a
Regulated Entity to be invested by the Regulated Entity in the
Potential Co-Investment Transaction, together with the amount proposed
to be invested by the other participating Regulated Entities and
Affiliated Investors, collectively, in the same transaction,

exceeds the amount of the investment opportunity, the amount of the
investment opportunity will be allocated among the Regulated Entities
and such Affiliated Investors, pro rata based on each participant's
Available Capital \12\ for investment in the asset class being
allocated, up to the amount proposed to be invested by each. The
Advisors to each participating Regulated Entity will provide the
Eligible Trustees of each participating Regulated Entity with
information concerning each participating party's Available Capital to
assist the Eligible Trustees with their review of the Regulated
Entity's investments for compliance with these allocation procedures.
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    \12\ ``Available Capital'' means (a) for each Regulated Entity,
the amount of capital available for investment determined based on
the amount of cash on hand, existing commitments and reserves, if
any, the targeted leverage level, targeted asset mix and other
investment policies and restrictions set from time to time by the
Board of the applicable Regulated Entity or imposed by applicable
laws, rules, regulations or interpretations and (b) for each
Affiliated Investor, the amount of capital available for investment
determined based on the amount of cash on hand, existing commitments
and reserves, if any, the targeted leverage level, targeted asset
mix and other investment policies and restrictions set by the
Affiliated Investor's directors, general partners or adviser or
imposed by applicable laws, rules, regulations or interpretations.
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    c. After making the determinations required in conditions 1 and
2(a) above, the Advisors to the Regulated Entity will distribute
written information concerning the Potential Co-Investment Transaction,
including the amount proposed to be invested by each Regulated Entity
and any Affiliated Investor, to the Eligible Trustees of each
participating Regulated Entity for their consideration. A Regulated
Entity will co-invest with one or more other Regulated Entities and/or
an Affiliated Investor only if, prior to the Regulated Entities' and
the Affiliated Investors' participation in the Potential Co-Investment
Transaction, a Required Majority concludes that:
    (i) The terms of the Potential Co-Investment Transaction, including
the consideration to be paid, are reasonable and fair to the Regulated
Entity and its shareholders and do not involve overreaching in respect
of the Regulated Entity or its shareholders on the part of any person
concerned;
    (ii) the Potential Co-Investment Transaction is consistent with:
    (a) The interests of the Regulated Entity's shareholders; and
    (b) the Regulated Entity's then-current Objectives and Strategies;
    (iii) the investment by any other Regulated Entity or an Affiliated
Investor would not disadvantage the Regulated Entity, and participation
by the Regulated Entity would not be on a basis different from or less
advantageous than that of any other Regulated Entity or Affiliated
Investor; provided, that if another Regulated Entity or Affiliated
Investor, but not the Regulated Entity itself, gains the right to
nominate a director for election to a portfolio company's board of
directors or the right to have a board observer, or any similar right
to participate in the governance or management of the portfolio
company, such event shall not be interpreted to prohibit a Required
Majority from reaching the conclusions required by this condition
2(c)(iii), if:
    (a) The Eligible Trustees will have the right to ratify the
selection of such director or board observer, if any; and
    (b) the Advisors to the Regulated Entity agree to, and do, provide
periodic reports to the Regulated Entity's Board with respect to the
actions of such director or the information received by such board
observer or obtained through the exercise of any similar right to
participate in the governance or management of the portfolio company;
and
    (c) any fees or other compensation that any other Regulated Entity
or any Affiliated Investor or any affiliated person of any other
Regulated Entity or an Affiliated Investor receives in connection with
the right of one or more Regulated Entities or Affiliated Investors to
nominate a director or appoint a board observer or otherwise to
participate in the governance or management of the portfolio company
will be shared proportionately among the participating Affiliated
Investors (who may, in turn, share their portion with their affiliated
persons) and any participating Regulated Entity in accordance with the
amount of each party's investment; and
    (iv) the proposed investment by the Regulated Entity will not
benefit the Advisors, any other Regulated Entity or the Affiliated
Investors or any affiliated person of any of them (other than the
parties to the Co-Investment Transaction), except (A) to the extent
permitted by condition 13, (B) to the extent permitted under sections
17(e) and 57(k) of the Act, as applicable, (C) in the case of fees or
other compensation described in condition 2(c)(iii)(c), or (D)
indirectly, as a result of an interest in the securities issued by one
of the parties to the Co-Investment Transaction.
    3. Each Regulated Entity will have the right to decline to
participate in any Potential Co-Investment Transaction or to invest
less than the amount proposed.
    4. The Advisors will present to the Board of each Regulated Entity,
on a quarterly basis, a record of all investments in Potential Co-
Investment Transactions made by any of the other Regulated Entities or
any of the Affiliated Investors during the preceding quarter that fell
within the Regulated Entity's then-current Objectives and Strategies
that were not made available to the Regulated Entity, and an
explanation of why the investment opportunities were not offered to the
Regulated Entity. All information presented to the Board pursuant to
this condition will be kept for the life of the Regulated Entity and at
least two years thereafter, and will be subject to examination by the
Commission and its staff.
    5. Except for follow-on investments made in accordance with
condition 8,\13\ a Regulated Entity will not invest in reliance on the
Order in any issuer in which another Regulated Entity or an Affiliated
Investor or any affiliated person of another Regulated Entity or an
Affiliated Investor is an existing investor.
---------------------------------------------------------------------------

    \13\ This exception applies only to follow-on investments by a
Regulated Entity in issuers in which that Regulated Entity already
holds investments.
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    6. A Regulated Entity will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of
securities to be purchased, settlement date, and registration rights
will be the same for each participating Regulated Entity and Affiliated
Investor. The grant to one or more Regulated Entities or Affiliated
Investors, but not the Regulated Entity itself, of the right to
nominate a director for election to a portfolio company's board of
directors, the right to have an observer on the board of directors or
similar rights to participate in the governance or management of the
portfolio company will not be interpreted so as to violate this
condition 6, if conditions 2(c)(iii)(a), (b) and (c) are met.
    7. a. If any Regulated Entity or Affiliated Investor elects to
sell, exchange or otherwise dispose of an interest in a security that
was acquired by one or more Regulated Entities and/or Affiliated
Investors in a Co-Investment Transaction, the Advisors will:
    (i) Notify each Regulated Entity that participated in the Co-
Investment Transaction of the proposed disposition at the earliest
practical time; and
    (ii) formulate a recommendation as to participation by each
Regulated Entity in the disposition.
    b. Each Regulated Entity will have the right to participate in such
disposition

on a proportionate basis, at the same price and on the same terms and
conditions as those applicable to the Affiliated Investors and any
other Regulated Entity.
    c. A Regulated Entity may participate in such disposition without
obtaining prior approval of the Required Majority if: (i) The proposed
participation of each Regulated Entity and each Affiliated Investor in
such disposition is proportionate to its outstanding investments in the
issuer immediately preceding the disposition; (ii) the Regulated
Entity's Board has approved as being in the best interests of the
Regulated Entity the ability to participate in such dispositions on a
pro rata basis (as described in greater detail in the application); and
(iii) the Regulated Entity's Board is provided on a quarterly basis
with a list of all dispositions made in accordance with this condition.
In all other cases, the Advisors will provide their written
recommendation as to the Regulated Entity's participation to the
Eligible Trustees, and the Regulated Entity will participate in such
disposition solely to the extent that a Required Majority determines
that it is in the Regulated Entity's best interests.
    d. Each Regulated Entity and each Affiliated Investor will bear its
own expenses in connection with the disposition.
    8. a. If any Regulated Entity or Affiliated Investor desires to
make a ``follow-on investment'' (i.e., an additional investment in the
same entity, including through the exercise of warrants or other rights
to purchase securities of the issuer) in a portfolio company whose
securities were acquired by the Regulated Entity and the Affiliated
Investor in a Co-Investment Transaction, the Advisors will:
    (i) Notify each Regulated Entity of the proposed transaction at the
earliest practical time; and
    (ii) formulate a recommendation as to the proposed participation,
including the amount of the proposed follow-on investment, by each
Regulated Entity.
    b. A Regulated Entity may participate in such follow-on investment
without obtaining prior approval of the Required Majority if: (i) The
proposed participation of each Regulated Entity and each Affiliated
Investor in such investment is proportionate to its outstanding
investments in the issuer immediately preceding the follow-on
investment; and (ii) the Regulated Entity's Board has approved as being
in the best interests of such Regulated Entity the ability to
participate in follow-on investments on a pro rata basis (as described
in greater detail in the application). In all other cases, the Advisors
will provide their written recommendation as to such Regulated Entity's
participation to the Eligible Trustees, and the Regulated Entity will
participate in such follow-on investment solely to the extent that the
Required Majority determines that it is in such Regulated Entity's best
interests.
    c. If, with respect to any follow-on investment:
    (i) The amount of a follow-on investment is not based on the
Regulated Entities' and the Affiliated Investors' outstanding
investments immediately preceding the follow-on investment; and
    (ii) the aggregate amount recommended by the Advisors to be
invested by the Regulated Entity in the follow-on investment, together
with the amount proposed to be invested by the other participating
Regulated Entities and the Affiliated Investors in the same
transaction, exceeds the amount of the opportunity; then the amount
invested by each such party will be allocated among them pro rata based
on each participant's Available Capital for investment in the asset
class being allocated, up to the amount proposed to be invested by
each.
    d. The acquisition of follow-on investments as permitted by this
condition will be considered a Co-Investment Transaction for all
purposes and be subject to the other conditions set forth in the
application.
    9. The Independent Trustees of each Regulated Entity will be
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including
investments made by other Regulated Entities or Affiliated Investors
that a Regulated Entity considered but declined to participate in, so
that the Independent Trustees may determine whether all investments
made during the preceding quarter, including those investments which
the Regulated Entity considered but declined to participate in, comply
with the conditions of the Order. In addition, the Independent Trustees
will consider at least annually the continued appropriateness for such
Regulated Entity of participating in new and existing Co-Investment
Transactions.
    10. Each Regulated Entity will maintain the records required by
section 57(f)(3) of the Act as if each of the Regulated Entities were a
BDC and each of the investments permitted under these conditions were
approved by a Required Majority under section 57(f).
    11. No Independent Trustee of a Regulated Entity will also be a
trustee, director, general partner, managing member or principal, or
otherwise an ``affiliated person'' (as defined in the Act) of any
Affiliated Investor.
    12. The expenses, if any, associated with acquiring, holding or
disposing of any securities acquired in a Co-Investment Transaction
(including, without limitation, the expenses of the distribution of any
such securities registered for sale under the 1933 Act) shall, to the
extent not payable by the Advisors under their respective advisory
agreements with the Regulated Entities and the Affiliated Investors, be
shared by the Regulated Entities and the Affiliated Investors in
proportion to the relative amounts of the securities held or to be
acquired or disposed of, as the case may be.
    13. Any transaction fee (including break-up or commitment fees but
excluding brokerage or underwriting compensation contemplated by
section 17(e) or 57(k) of the Act, as applicable) \14\ received in
connection with a Co-Investment Transaction will be distributed to the
participating Regulated Entities and Affiliated Investors on a pro rata
basis based on the amount they invested or committed, as the case may
be, in such Co-Investment Transaction. If any transaction fee is to be
held by an Advisor pending consummation of the transaction, the fee
will be deposited into an account maintained by the Advisor at a bank
or banks having the qualifications prescribed in section 26(a)(1) of
the Act, and the account will earn a competitive rate of interest that
will also be divided pro rata among the participating Regulated
Entities and Affiliated Investors based on the amount they invest in
the Co-Investment Transaction. None of the other Regulated Entities,
Affiliated Investors, the Advisors nor any affiliated person of the
Regulated Entities or the Affiliated Investors will receive additional
compensation or remuneration of any kind as a result of or in
connection with a Co-Investment Transaction (other than (a) in the case
of the Regulated Entities and the Affiliated Investors, the pro rata
transaction fees described above and fees or other compensation
described in condition 2(c)(iii)(c), (b) brokerage or underwriting
compensation permitted by section 17(e) or 57(k) of the Act, as
applicable, or (c) in the case of the Advisors, investment advisory
fees paid in accordance with the Regulated

Entities' and the Affiliated Investors' investment advisory
agreements).
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    \14\ Applicants are not requesting and the Commission is not
providing any relief for transaction fees received in connection
with any Co-Investment Transaction.
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    14. The Advisors to the Regulated Entities and Affiliated Investors
will maintain written policies and procedures reasonably designed to
ensure compliance with the foregoing conditions. These policies and
procedures will require, among other things, that each of the Advisors
to each Regulated Entity will be notified of all Potential Co-
Investment Transactions that fall within a Regulated Entity's then-
current Objectives and Strategies and will be given sufficient
information to make its independent determination and recommendations
under conditions 1, 2(a), 7 and 8.
    15. If the Holders own in the aggregate more than 25 percent of the
shares of a Regulated Entity, then the Holders will vote such shares as
directed by an independent third party when voting on (1) the election
of directors or trustees; (2) the removal of one or more directors or
trustees; or (3) any matters requiring approval by the vote of a
majority of the outstanding voting securities, as defined in section
2(a)(42) of the Act.
    16. Each Regulated Entity's chief compliance officer, as defined in
Rule 38a-1(a)(4), will prepare an annual report for its Board that
evaluates (and documents the basis of that evaluation) the Regulated
Entity's compliance with the terms and conditions of the application
and the procedures established to achieve such compliance.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-05551 Filed 3-19-18; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 87, Number 135 (Friday, July 15, 2022)]
[Notices]
[Page 42523]
[FR Doc No: 2022-15119]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95245; File No. SR-NSCC-2022-005]

Self-Regulatory Organizations; National Securities Clearing
Corporation; Notice of Designation of Longer Period for Commission
Action on a Proposed Rule Change To Revise the Excess Capital Premium
Charge

July 11, 2022.
    On May 30, 2022, National Securities Clearing Corporation
(``NSCC'') filed with the Securities and Exchange Commission
(``Commission'') proposed rule change SR-NSCC-2022-005 (the ``Proposed
Rule Change'') pursuant to Section 19(b)(1) of the Securities Exchange
Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder.\2\ The Proposed
Rule Change was published for comment in the Federal Register on June
8, 2022,\3\ and the Commission has received comments regarding the
changes proposed in the Proposed Rule Change.\4\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 95026 (June 2,
2022), 87 FR 34913 (June 8, 2022) (File No. SR-NSCC-2022-005).
    \4\ Comments are available at https://www.sec.gov/comments/sr-nscc-2022-005/srnscc2022005.htm.
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    Section 19(b)(2) of the Act \5\ provides that, within 45 days of
the publication of notice of the filing of a proposed rule change, or
within such longer period up to 90 days as the Commission may designate
if it finds such longer period to be appropriate and publishes its
reasons for so finding or as to which the self-regulatory organization
consents, the Commission shall either approve the proposed rule change,
disapprove the proposed rule change, or institute proceedings to
determine whether the proposed rule change should be disapproved. The
45th day after publication of the notice for the Proposed Rule Change
is July 23, 2022.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

    The Commission is extending the 45-day period for Commission action
on the Proposed Rule Change. The Commission finds that it is
appropriate to designate a longer period within which to take action on
the Proposed Rule Change so that it has sufficient time to consider and
take action on the Proposed Rule Change.
    Accordingly, pursuant to Section 19(b)(2) of the Act \6\ and for
the reasons stated above, the Commission designates September 6, 2022,
as the date by which the Commission shall either approve, disapprove,
or institute proceedings to determine whether to disapprove proposed
rule change SR-NSCC-2022-005.
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    \6\ Id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
---------------------------------------------------------------------------

    \7\ 17 CFR 200.30-3(a)(31).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-15119 Filed 7-14-22; 8:45 am]
BILLING CODE 8011-01-P


                               ICR SUPPORTING STATEMENT

   IDENTIFICATION OF THE INFORMATION COLLECTION

   TITLE OF THE INFORMATION COLLECTION

  Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act (Renewal).

  EPA ICR No.2553.04
  OMB Control No. 2040-0290

   SHORT CHARACTERIZATION/ABSTRACT

  In section 518 of the Clean Water Act (CWA), Congress authorized EPA to treat eligible federally recognized Indian tribes in a manner similar as states for purposes of administering section 303 and certain other provisions of the CWA and directed the agency to promulgate regulations effectuating this authorization. EPA previously had issued regulations establishing a process for federally recognized tribes to obtain treatment in a similar manner as states (TAS) for several provisions of the CWA. Over 50 tribes, for example, have obtained TAS authority to issue water quality standards under CWA section 303(c). EPA, in 2016, promulgated regulations expressly establishing a process for tribes to obtain TAS authority to administer the water quality restoration provisions of CWA section 303(d), including issuing lists of impaired waters and developing total maximum daily loads (TMDLs) under CWA section 303(d), as states routinely do. By establishing regulatory procedures for eligible tribes to obtain TAS for the CWA section 303(d) Impaired Water Listing and TMDL Program (or "303(d) Program"), the regulation enables eligible tribes to obtain authority to identify impaired waters on their reservations and establish TMDLs, which serve as plans for attaining and maintaining applicable water quality standards (WQS). The regulation is comparable to similar regulations that EPA issued in the 1990s for the CWA section 303(c) WQS and CWA sections 402 and 404 Permitting Programs, and includes features designed to minimize paperwork and unnecessary reviews.

  Section 303(d) of the CWA requires states, territories, and authorized tribes to identify and establish a priority ranking for waters that do not meet EPA-approved or promulgated water quality standards (WQS) following the implementation of technology-based controls. For waters so identified, section 303(d) requires states, territories, and authorized tribes to establish TMDLs in accordance with their priority ranking for those pollutants the Administrator identified as suitable for TMDL calculation. A TMDL is the calculation and allocation to point and nonpoint sources of the maximum amount of a pollutant that a water body can receive and still meet applicable WQS, with a margin of safety.

  EPA reviews and approves or disapproves state and territory section 303(d) lists and TMDLs from 56 respondents (the 50 states, the District of Columbia, and the five territories). Section 303(d) specifically requires states to develop lists and TMDLs "from time to time," and EPA to review and approve or disapprove the lists and TMDLs.

  State and territory respondent burden for implementing the 303(d) Program is covered under ICR 1560.12 (OMB Control Number 2040-0071), National Water Quality Inventory Reports (Renewal). This ICR, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act (Renewal), provides estimates of burden and costs to Indian tribes (1) to apply for TAS for purposes of the CWA section 303(d) Impaired Water Listing and TMDL Program and (2) to implement the 303(d) Program. This ICR also includes corresponding EPA burden and cost estimates for reviewing the tribal applications, section 303(d) lists, and TMDLs.

  The total estimated burden could overstate actual burden because (a) EPA used a liberal estimate of the number of tribal applications to ensure that the ICR does not underestimate tribal burden, (b) EPA assumed that all applications would be submitted in the first year of this ICR cycle, and (c) EPA used estimates based on state and territory burden to implement the 303(d) Program.

  This ICR renewal updates some estimates used in the currently approved ICR.  Estimates from the 2020 303(d)/305(b) National Water Quality Inventory Reports (Renewal) (OMB Control Number 2040-0071; ICR Number 1560.12) have been updated to include changes due to the redesigned ATTAINS data system.  Labor rates have also increased.
   NEED FOR AND USE OF THE COLLECTION

   NEED AND AUTHORITY FOR THE COLLECTION

  In 1987, through the Water Quality Act (P. L. 100-4), Congress made substantial additions to the CWA. The Water Quality Act added section 518(e), which requires EPA to promulgate regulations specifying how Indian tribes would qualify to administer certain specified CWA programs. The regulation promulgated in 2016, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act, satisfies the requirement set forth in CWA section 518(e) to promulgate regulations specifying how Indian tribes would qualify to administer the 303(d) Program.

  The CWA does not require tribes to administer regulatory programs. However, tribes seeking to be authorized must apply for and be found eligible for TAS through the procedures described in the regulations. The information a tribe submits represents a collection of information that is necessary for EPA to fulfill the Agency's responsibilities under CWA section 518(e) in a reasonable and timely manner.

  The statute and existing regulations specify four criteria for an Indian tribe to qualify to administer a CWA regulatory program: (a) the tribe must be federally recognized, (b) the tribe must have a governing body carrying out substantial governmental duties and powers, (c) the program must pertain to water resources within the borders of an Indian reservation and (d) the tribe must be reasonably expected to be capable of carrying out the functions to be exercised consistent with the terms and purposes of the CWA and all applicable regulations. Further information is summarized in section 4.2.

  As described in ICR 1560.12, National Water Quality Inventory Reports (Renewal), section 303(d) of the CWA establishes the TMDL process to address waters where required controls are inadequate to achieve applicable WQS. States, territories, and authorized tribes must identify waters that do not or are not expected to meet applicable WQS solely through the implementation of technology-based controls. These waters are referred to as water-quality limited or impaired waters.

                    "(d)(1)(A)	Each State shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters.

 Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 301 are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife.

 Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 304(a)(2) as suitable for calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.

 Each State shall estimate for the waters identified in paragraph (1)(B) of this subsection the total maximum daily thermal load required to assure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife..."

  Section 303(d)(2) requires states, territories, and authorized tribes to submit the lists of water-quality limited waters and associated TMDLs to the EPA "from time to time."

                    "(2)	Each State shall submit to the Administrator, from time to time, with the first submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 304(a)(2)(D), for his approval the waters identified and the loads
                    established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection..."

  For purposes of listing impaired waters under section 303(d), EPA's Water Quality Planning and Management regulation (40 CFR 130) defines "from time to time" as a biennial reporting requirement for submitting prioritized lists of water-quality limited waters still requiring TMDLs (note that the regulatory provision pertains exclusively to 303(d) lists of waters requiring TMDLs and does not require biennial submittal of TMDLs).

  Like states, authorized tribes are required to submit their "303(d) lists" to EPA for approval every two years on April 1. As indicated in section 130.16(c)(3) of the rule, a tribe gaining TAS status is provided at least 24 months to submit its first impaired waters list to EPA. The 24-months would begin to run on (1) the date the tribe's TAS application for 303(d) is approved or (2) the date applicable WQS for the tribe's waters are effective, whichever comes later. Under the CWA, each state and authorized tribe must, from time to time, develop TMDLs for pollutants causing impairments in all the waters on its 303(d) list. States and authorized tribes set priorities for developing TMDLs for their impaired and listed waters.

  TMDLs must be established "at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." Calculations to establish TMDLs must be subject to public review. Once established, the state or authorized tribe submits the TMDL to EPA for review.

  EPA encourages tribes to submit their 303(d) impaired waters list electronically through the Assessment TMDL Tracking and Implementation System (ATTAINS).  In 2014, EPA initiated activities to redesign ATTAINS to streamline reporting and Agency processing of data and information, including 303(d) lists and TMDLs. EPA is currently working on a pilot with several tribes and EPA regions to explore options for submitting electronic assessment information, in an effort to streamline tribal reporting under the CWA.

  2.2	PRACTICAL UTILITY/USERS OF THE DATA

  EPA would use the information supplied in an application by a tribe interested in TAS for the CWA section 303(d) Impaired Water Listing and TMDL Program to determine whether it qualifies to administer the 303(d) Program. EPA must assess the tribe's information to determine whether the tribe meets the requirements specified in section 518(e) of the CWA and EPA's implementing regulations.

  If these information collection activities are not carried out, interested and otherwise qualified tribes would be unable to administer the CWA section 303(d) Impaired Water Listing and TMDL Program. This would not be consistent with the CWA or EPA and federal Indian policy.
  The action is likely to increase the availability of information to indigenous populations as interested tribes obtain TAS for the CWA section 303(d) Impaired Water Listing and TMDL Program and begin implementing the 303(d) Program. In short, tribes with TAS assume the primary role under the CWA in deciding (1) what waters on their reservations are impaired and in need of restoration (and establish priority ranking for TMDL development for those waters) and (2) what the TMDLs and pollutant source allocations for those waters should look like.

  The Watershed Restoration, Assessment and Protection Division (WRAPD), along with other divisions within EPA, would utilize the tribal data and information generated through implementation of the 303(d) Program (similarly to entities described in ICR 1560.12, National Water Quality Inventory Reports (Renewal)). EPA Regional permit enforcement branches have used the data to verify that state National Pollutant Discharge Elimination System permits address causes and sources of pollution in degraded waters. Others, such as the Great Lakes Task Force, can use the ATTAINS database to summarize water pollution information by interstate and interregional hydrological units. Other agencies, including the National Oceanic and Atmospheric Administration (NOAA) and the US Department of Agriculture, have used ATTAINS to summarize the extent of water quality problems in coastal water and the national extent of watershed impaired by agricultural nonpoint sources. Also, the respondents use ATTAINS and other assessment databases in their water quality management programs to identify problem areas, track progress in pollution control, and to set priorities.

  WRAPD would use the information submitted under CWA section 303(d) to track tribal progress in preparing TMDLs for impaired waters still requiring TMDLs. Consistent with the requirements of CWA section 303(d), EPA would review the section 303(d) lists submitted by the tribes to determine whether they comply with the requirements of the statute and EPA's regulations and reflect an accurate accounting of waters not meeting applicable WQS. Also, as required by CWA section 303(d), EPA would review TMDLs developed and submitted by the tribes to determine their technical sufficiency and whether they otherwise comply with CWA section 303(d) and EPA regulations.

      3	NON-DUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

  3.1	NON-DUPLICATION

  Under EPA's regulations, a tribe must address TAS application requirements for each program it wishes to administer. To avoid requiring tribes to submit duplicate information, EPA's regulations specify that a tribe need only provide the required information that has not been submitted in a previous application. For example, in evaluating whether a tribe qualifies to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program, EPA does not require a tribe to resubmit information from a previously-approved TAS application for the CWA section 303(c) Water Quality Standards Program.

  The CWA section 303(d) impaired water lists would be unique tribe-by-tribe accounting and ranking of waters not meeting applicable WQS. Under CWA section 303(d), states, territories, and authorized tribes submit lists to EPA for review and approval/disapproval. TMDLs are a unique and valuable tool that quantifies the maximum amount of a pollutant that a water body can absorb and still meet applicable WQS. They specify the amount that pollutant loadings need to be reduced for the water to attain such WQS and allocate pollutant load reductions among sources for a watershed. Section 303(d) also requires EPA to review and approve or disapprove TMDLs submitted by tribes.

  3.2	PUBLIC NOTICE REQUIRED PRIOR TO ICR SUBMISSION TO OMB

  In compliance with the 1995 Paperwork Reduction Act, EPA is soliciting comments on this ICR for a 30-day period. EPA did not receive any comments while announcing the availability of and seeking public comment on this revised ICR, referred to as the "60-day" or "first FR notice," published on July 19[th], 2022. EPA has established a docket for this renewal No. EPA-HQ-OW-2019-0143. All documents in the docket are listed and accessible for viewing at http://www.regualtions.gov.

  3.3	CONSULTATIONS

  In developing the 2016 rule, EPA made a substantial effort to involve key stakeholders. In multiple meetings, EPA consulted and coordinated with tribes, states, and organizations representing tribes and states.

  To help develop the initial burden estimates for the 2016 ICR associated with the rule, EPA worked with relevant information gathered for a related ICR, Revised Interpretation of Clean Water Act Tribal Provision (Final Interpretive Rule) (ICR number 2515.02)[,] and information within ICR 1560.12, National Water Quality Inventory Reports (Renewal). In preparing ICR number 2515.02, EPA consulted with eight tribes that have been approved for TAS to administer the Water Quality Standard Program. In preparation for the 2019 ICR Renewal (ICR 2553.03), EPA contacted four tribes to review burden and costs estimates and received responses from two tribes.  The information reviewed included the number of tribal staff hours spent on the application process, and the amount of tribal funds spent on contractor support for the process. Feedback indicated that the estimates were reasonable, while also recognizing that there are still a number of unknowns because no application has yet been submitted. The tribes provided resource information in interviews conducted by EPA staff members in the respective Regional offices.

  EPA regularly solicits feedback from tribes through ongoing programmatic activities. EPA conducts annual workshops with technical and managerial state, tribal, and territorial representatives from around the country. Individual 303(d) TAS breakout sessions were held during the 2017, 2018, 2019, 2021, and 2022 workshops at which attending tribes were involved in both planning and facilitation, and provided the opportunity to submit feedback and engage directly with program staff. Fifty-two attendees representing a total of forty-two tribes registered for the virtual workshop in 2022. Additionally, tribes were directly involved in the writing and review of EPA's 2022 - 2032 Vision for the Clean Water Act Section 303(d) Program, which outlines a framework to organize program activities. EPA held a virtual workshop for tribal partners on May 4, 2022 to provide staff from tribes more information about the CWA 303(d) Program and identify ways to improve communication and collaboration regarding water quality impairment determinations, TMDLs, and other restoration and protection plans. Twenty-four participants from twenty federally recognized tribes participated the event.

  For each two-year listing cycle, EPA has typically developed a reporting memorandum to help states, territories, and authorized tribes prepare for biennial reporting to EPA on the conditions of waters within their boundaries, including information on listing impaired waters. For each reporting cycle, EPA generally has distributed the draft reporting memorandum to all respondents for comment before issuing a final memorandum. EPA may reach out to states, territories, and authorized tribes occasionally to solicit their input on the effectiveness of the 303(d) Program in meeting the applicable WQS. This information would facilitate the evaluation of the 303(d) Program to identify gaps and potential efficiencies that can be gained.

  3.4	EFFECTS OF LESS FREQUENT COLLECTION

  Application by Indian tribes to obtain TAS to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program is a one-time collection of information per respondent, initiated voluntarily by interested tribes.

  The biennial frequency of the CWA section 303(d) list collection is mandated by 40 CFR 130.7(d)(1). Less frequent collection may result in a declining quality of state, territory, tribal, and EPA water quality analyses because each could possibly be based on outdated information. Each state, territory, or authorized tribe must, from time to time, develop TMDLs for pollutants causing impairments in all waters on its 303(d) list; this "from time to time" frequency is mandated by the CWA.

  3.5	GENERAL GUIDELINES

  EPA reviewed this ICR for compliance with OMB's information collection guidelines in 5 CFR 1320.5(d)(2) and concluded that it is compliant.

  3.6	CONFIDENTIALITY AND SENSITIVE QUESTIONS

  Tribal program applications under this ICR should contain no confidential or sensitive information. Tribal respondents would be working entirely in a public forum.

  4.	THE RESPONDENTS AND THE INFORMATION REQUESTED

  4.1	RESPONDENTS/NAICS CODES

  The following describes the universe of potential respondents. The number of annual respondents is estimated in section 6.

  Any federally recognized tribe with a reservation may apply to administer the CWA section 303(d) Impaired Water Listing and TMDL Program. There are over 300 tribes with reservations.

  The respondents affected by this collection activity are in NAICS code 92411 "Administration of Air and Water Resources and Solid Waste Management Programs."

  4.2	INFORMATION REQUESTED

  This regulation, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act, clarifies the process for tribes to obtain TAS authority for the CWA Section 303(d) Impaired Water Listing and TMDL Program. The regulation also specifies the information a tribe must provide in its application to administer the CWA section 303(d) Program. The application must include the following information, as described in 130.16 (a) & (b) of the rule:

       A statement that the tribe is recognized by the Secretary of the Interior.

          A descriptive statement demonstrating that the tribal governing body is currently carrying out substantial governmental duties and powers over a defined area.

       A descriptive statement of the tribe's authority to regulate water quality.

          A narrative statement describing the capability of the Indian tribe to administer an effective CWA Section 303(d) Impaired Water Listing and TMDL Program.

          Additional documentation required by the Regional Administrator that, in the judgment of the Regional Administrator, is necessary to support a tribal application.

  Where the tribe has previously qualified for eligibility for TAS under another EPA-administered program, the tribe need only provide the required information that has not been submitted in a previous application.

  Approvals for tribes to administer a CWA Section 303(d) Impaired Water Listing and TMDL Program are valid unless rescinded. Therefore, EPA anticipates an interested tribe typically needs to apply only once for TAS for the 303(d) Program. Where a tribe has previously qualified for TAS under another program, the tribe need only provide the required information that has not been submitted in a previous application.

  As described in section 2.1 of this ICR and in accordance with CWA section 303(d)(1), an authorized tribe must submit to EPA, for review and approval and/or disapproval, a list of waters not attaining applicable WQS. The statute requires authorized tribes to establish a priority ranking for these waters taking into account the severity of the pollution problems and the designated uses of each water. In conformance with the CWA, authorized tribes may apply individual approaches to assign priority to the order in which TMDLs will be established for each identified water.

  In accordance with CWA section 303(d)(2), an authorized tribe must establish TMDLs for waters not meeting applicable WQS as a result of pollutant discharges. A TMDL is a written, quantitative assessment of water quality problems and contributing pollutant sources. It specifies the amount that pollutant loadings need to be reduced for the water to attain applicable WQS and allocates pollutant load reductions among sources in a watershed. CWA section 303(d) requires authorized tribes to submit TMDLs to EPA for review and approval and/or disapproval action. Occasionally EPA may also seek additional information from authorized tribes to evaluate how well the 303(d) Program is working.

  4.3	RESPONDENT ACTIVITIES

  Respondent activities relevant to applying for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program include:

 Reading the statutory and regulatory requirements and EPA guidance, obtaining any necessary background understanding, obtaining clarifications from EPA.

 Assembling information required for the application, as necessary, including federal recognition documentation; descriptions of form and functions of tribal government; documentation of the tribe's authority to carry out functions; maps and legal description of the tribal reservation; identification of surface waters to be regulated; description of the tribe's previous management experience; descriptions of existing tribal environmental or public health programs; identification of tribal entities that exercise the tribe's executive, legislative, and judicial functions; and a description of the tribal agency that will assume responsibility for the program.

 Developing any of the above materials that do not already exist, or revising existing materials, as necessary, for inclusion in the application.

 Generating any needed data, including conducting water quality monitoring, and conducting scientific analyses of the data, to assist as necessary with the application.

 Analyzing the assembled information, and analyzing any issues identified by the tribe or EPA.

 Developing, as necessary, a statement by the tribal legal counsel discussing the legal basis for the tribe's assertion of authority.

 Developing, as necessary, a description of the technical and administrative capabilities of the staff to administer the program.

 Developing, if necessary, a plan that describes how the tribe will acquire needed expertise, and how the tribe will obtain the funds required to develop needed expertise.

 Assembling and writing the application and transmittal documents.

            Meeting with EPA as needed to discuss plans, progress and any issues in developing the application.

        Responding to comments from EPA or others.

         Transmitting the draft and final application to EPA.

            Establishing a permanent file of the TAS application that can be referenced when amending the application or applying for other EPA programs at a later date.

  Respondent activities relevant to implementing the CWA Section 303(d) Impaired Water Listing and TMDL Program include:

 Reviewing the CWA, regulations and guidance for CWA section 303(d).

 Developing, reviewing, and updating 303(d) assessment methodology.

 Preparing the 303(d) list. Specific activities include identifying waters (including wetlands and coastal and marine waters), establishing priorities, and determining schedules and targets.

 Conducting public participation required for the 303(d) list. Specific activities include issuing public notice(s) and developing responses to public comments on the list, priorities, and schedules.

 Submitting the 303(d) list to EPA and responding to EPA comments.

 Occasionally assisting EPA with evaluating program management and its effectiveness in attaining applicable WQS.

 Conducting watershed characterization, compiling available information, creating database or electronic files, reviewing available information, and selecting the technical approach.

 Modeling and analyzing data. Selecting, setting up, and calibrating the model.

 Conducting analyses of pollutant source allocations. Evaluating allocation scenarios and selecting the allocation.

 Developing TMDL documents for public review. Preparing technical reports documenting analyses and assumptions. For each TMDL, documenting the waste load allocation (WLA), load allocation (LA), loading capacity, margin of safety, and seasonality.

 Preparing an administrative record.

 Conducting public outreach with public participation. Holding public meeting(s) and disseminating information prior to TMDL submittal.

 Tracking, planning, developing legal support, etc. Completing miscellaneous tasks needed to support TMDL development.

  These activities are generally carried out by the tribe with support in some instances from contractors and consultants hired by the tribe.

      5.	THE INFORMATION COLLECTED  -  AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT

  5.1	AGENCY ACTIVITIES

  After a tribe submits an application to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program, EPA will review the application and use the submitted information to determine whether the tribe meets the criteria under CWA section 518(e) and EPA's regulations to administer the 303(d) Program.

  According to the regulation, EPA will also provide an appropriate opportunity for "appropriate governmental entities" (i.e., states, tribes and other federal entities located contiguous to the reservation of the applicant tribe) to comment on the applicant tribe's assertion of authority and, among other things, inform EPA of any special circumstances that they believe could affect a tribe's ability to administer the 303(d) Program.

  Once EPA receives a list or TMDL from an authorized tribe, it must either approve or disapprove that list or TMDL within thirty days. If EPA disapproves the list or TMDL, EPA must establish a replacement list or TMDL within thirty days of disapproval. Additional Agency activities include preparing 303(d) memoranda and providing technical assistance to authorized tribes for 303(d) listing and TMDLs.

  5.2	COLLECTION METHODOLOGY AND MANAGEMENT

  An interested tribe submits its application to the EPA Regional office. EPA has delegated to Regions the responsibility to review and approve tribal TAS eligibility; EPA headquarters would have a concurrence role on the first application submitted to each Region. Regional office staff members would work closely with the tribes in this process. EPA headquarters staff members would provide support to the Regional offices in the reviews.

  Authorized tribes would submit the CWA section 303(d) lists and priority rankings to their EPA Region. The Regions would review the submissions and then issue a decision document approving or disapproving the tribal list. If EPA disapproves a tribal list, EPA would issue a public notice identifying the waters EPA is proposing to add to the tribal list. Tribes would submit each completed TMDL to the appropriate EPA Region for review and action. If EPA disapproves the tribal submission, EPA would establish the TMDL for the tribe.

  5.3	SMALL ENTITY FLEXIBILITY

  The reporting requirements discussed in this ICR do not place a burden on any small entities.

  5.4	COLLECTION SCHEDULE

  There are no scheduling requirements for Indian tribes to apply for authorization to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program; however, as described in section 3.4, the frequency of the CWA section 303(d) list collection is biennial. A tribe gaining TAS status is provided at least 24 months to submit its first section 303(d) list to EPA. The tribe's first impaired waters list is due to EPA the next listing cycle due date that is at least 24 months from the later of (1) the date the tribe's TAS for 303(d) application is approved or (2) the date applicable WQS for the tribe's waters are effective. Subsequent section 303(d) lists are due April 1st of even-numbered years (e.g., April 1, 2024, 2026...). As described in section 3.4, each state, territory, or authorized tribe must, from "time to time", develop TMDLs for pollutants causing impairments in all waters on its 303(d) list; this "from time to time" frequency is mandated by CWA section 303(d).

        6.	ESTIMATING THE BURDEN AND COST OF THE COLLECTION

  6.1	ESTIMATING RESPONDENT BURDEN

  To develop burden estimates for submitting a TAS application, the 303(d) Program evaluated information for a related ICR, Revised Interpretation of Clean Water Act Tribal Provisions (ICR number 2515.02). In preparing ICR 2515.02, EPA consulted with eight tribes that have been approved for TAS to administer the Water Quality Standards Program. The information requested included the number of tribal staff hours spent on the application process, and the amount of tribal funds spent on contractor support for the process. The Agency also worked with 303(d) Program experts in the Regions for additional information to estimate tribal burden. EPA's methodology and results are described in the Appendix: Derivation of Burden Estimates.

  To date, no tribes have applied for TAS status. For this ICR renewal, EPA is basing its estimate of the number of tribes that may apply for TAS over the next three years on recent interactions with tribes and information from EPA regions. Over the past three years over forty separate tribes have attended EPA's annual Section 303(d) Training Workshop. This workshop is held each year to bring states, territories and tribes together to enhance collaboration and address challenging issues.. In addition, Regional 303(d) coordinators predict nine tribes may seek TAS status in coming years, though not necessarily over the next three-year ICR cycle. For the 2019 ICR, EPA had estimated that 5 tribes may seek TAS status; zero tribes have applied to date. For the next three-year ICR cycle, EPA is maintaining the estimate that five tribes may submit tribal TAS applications for the 303(d) Program.

  EPA estimates that a tribe would expend 270 staff hours and $7,466 on contractor costs to develop a section 303(d) TAS application. Thus, this one-time burden is:
  (5 tribes) * (270 hours/application) = 1,350 hour/application. Similarly, the one-time cost is:
  (5 tribes) * ($7,466) = $37,330. Distributing these over the three-year ICR cycle results in a burden of 450 hours/year and a contractor cost of $12,443/year.

  Note that this estimate of burden for 303(d) TAS application assumes that all TAS for 303(d) applications would be submitted by tribes already having TAS for the CWA Section 303(c) WQS Program, as such, the tribes would be able to rely on materials from previous applications. The tribe would need to submit only material that had not been provided as part of the WQS TAS application process, thus alleviating the burden on the 303(d) application.

  Based on estimates derived from ICR 1560.12, National Water Quality Inventory Reports (Renewal) EPA estimates that an authorized tribe would expend 3,158 hours per respondent, per year (Table 1) on listing activities. EPA estimates that each tribe would develop five TMDLs per year. This estimate is based on: 1) tribal 303(d) programs being at the beginning stages of program development and 2) the number of TMDLs developed in recent years by U.S. territories, which share some similarities with developing tribal programs. EPA estimates that each tribe would expend 740 hours per TMDL. Thus, EPA estimates that an authorized tribe would expend 3,700 hours per year on TMDL activities. In addition, because lists are required biannually, and the tribal 303(d) rule provides at least two years for a tribe to initiate its listing program, only the tribes that apply for TAS status in the first year of this ICR will be fully impacted. Therefore, annual burden and cost estimates will be higher than what actually may be incurred.

  Table 1. Respondent Annual Average Burden on Listing Activities
Program Activity
                                    Burden
                                    (hours)
Develop listing methodologies
                                      831
Prepare 303(d) list
                                     1877
Release list for public comment
                                      265
Submit list, response to comments, and TMDL rankings
                                      185
TOTAL Listing Activities
                                     3,158

  Annual tribal burden (Table 2)

  TAS application: (270 hrs/application) * 5 applications/3 years) = 450 hours/year
  Listing activities: (3,158 hrs/tribe) * 5 tribes) = 15,790 hours/year
  TMDL development activities: (740 hrs/TMDL) * (5 TMDLs/tribe) * (5tribes) = 18,517 hrs/year

  Table 2. Estimated Annual Tribal Burden
Program Activity
                                     Hours
TAS application
                                      450
Listing activities
                                    15,790
TMDL activities
                                    18,517
TOTAL BURDEN
                                    34,757

  6.2	ESTIMATING RESPONDENT COSTS

  To estimate the cost for TAS applications, EPA used post-final rule information from Revised Interpretation of Clean Water Act Tribal Provisions (Final Interpretive Rule) (ICR number 2515.02).

  Utilizing estimates in ICR No. 1560.12 National Water Quality Inventory Reports (Renewal) States indicated that a typical or average labor cost, including overhead, is $54.39/hour. To reflect current cost (2022) a factor of 1.154 was used to derive a typical fully loaded labor rate of $66.12/hour.[9] Estimated respondent costs are reflected in Table 3.  The cost estimates for TAS applications include $7,466 for contract support.

  Annual tribal cost (Table 3)

  TAS application:
  (270 hours/application) * ($66.12/hour) + ($7,466 contractor cost) = $25,318/year.
  (5 tribes/ 3 yrs) * ($25,318/application) = $ 42,197/year.

  Listing activities: (3,158 hours/tribe) * ($66.12/hr) * (5 tribes) = $1,044,035/yr
  TMDL development activities:
  (740 hours/TMDL) * (5 TMDLs/tribe) * ($66.12/hr) * (5 tribes) = $1,223,220/yr.

  The cost for 303(d) listing is derived from burden estimates for developing listing methodologies, identifying those that are impaired and submitting a report to EPA. While it is unlikely that a tribe will complete a TMDL within this ICR cycle, EPA's assumption in its estimates is more conservative. (Table 3)

  Table 3. Estimated Annual Tribal Cost *
Program Activity

TAS application
                                    $42,197
Listing activities
                                  $1,044,035
TMDL development
                                  $1,223,220
TOTAL COST
                                  $2,309,452
  *Calculated at $57.30/hour
  ** Includes $7,466 contractor costs

  As mentioned, the burden estimates are informed by the ICR 1560.12 National Water Quality Inventory Reports (Renewal) and are based upon information currently available to EPA plus some projections. For example, EPA recently implemented updates for the Assessment and Total Maximum Daily Load Tracking and Implementation System (ATTAINS), which integrates EPA's data and information systems to more effectively support reporting and tracking water quality protection and restoration actions. EPA used some projections and assumptions on cost savings from ATTAINS in its burden estimates in ICR 1560.12.EPA plans to revise the ICR burden when it merges this ICR, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act, with the National Water Quality Inventory Reports ICR in a future renewal cycle.

  6.3	ESTIMATING AGENCY BURDEN AND COST

  Annual burden and costs to the Federal Government regarding CWA section 303(d) program implementation reflect those in ICR 1560.12, National Water Quality Inventory Report. The hourly cost estimates are calculated for a federal position, Grade 10 Step 7 at $29.82/hour. The total costs are based on an overhead rate of 110 percent including benefits and are calculated to be $66.12 per hour.

  EPA estimates that reviewing a typical TAS application requires approximately 205 Agency hours from regional and headquarters offices. The annual Agency burden estimated:
  (205 hours/application) * ($66.12/hour) = $13,554/application.
  ($13,554/application) * (5applications/3 years) = $22,591/year

  The average annual Agency burden for a single tribe for 303(d) listing and TMDL activities is estimated at 213 hours. For five tribes, the total average annual Agency burden is estimated at (5tribes) * (213 hours per tribes) = 1,065 hours at a cost of $66.12 per hour.

   Annual Agency burden and cost (Table 4)

  TAS application:
  (205 hrs/application) * (5 applications)/3 yrs =  342 hours/yr
  ($13,554/application) * (5 application/3 yrs) = $22,591/yr

  Listing and TMDL reviews:
  (213 hrs/tribe) * (5 tribes) = 1,065 hours/yr
  ($66.12) * ( 1,065hours) = $70,417/yr

  Table 4. Estimating Annual Agency Burden and Cost
 303(d) Program Activities
                                     Burden
                                    (hours)
                                      Cost
 TAS application review
                                     1,025
                                    $67,770
 List and TMDL review
                                     1,065
                                    $70,417
 TOTAL
                                     2,090
                                   $138,187

6.4	REASONS FOR CHANGE IN BURDEN/COSTS

There is no change in burden estimate for this ICR when compared to the ICR currently approved by OMB. Changes in cost are due to rising wage rates between 2019 and 2023. In the previous renewal, there was a decrease of 55,147 hours in the total estimated respondent burden due to: (1) the estimated annual number of respondents decreasing from twelve to five; (2) new and better data that parses out labor and costs per activity; and (3) TAS application burden and cost estimates from post-final rule, Revised Interpretation of Clean Water Act Tribal Provision (the previous ICR used pre-final rule estimates).
        7 	BURDEN STATEMENT

  The respondent burden for applying for TAS status under the 303(d) Program is estimated to be 270 hours plus $7,466 in contract support per tribe. Predicting five tribes will submit applications over the three-year ICR cycle, the total annual burden is 450 hours and cost $42,197.

  The annual tribal burden and cost for responsibilities related to implementation of the 303(d) Program for five tribes are estimated to be 15,790 hours and $1,044,035 for listing activities and 18,517 hours and $1,223,220 for TMDL development activities.

  The total annual burden of this ICR is 34,757 hours.
  The total annual cost, including labor costs derived from the 34,757 burden hour estimate, of this ICR is $2,309,452.

  Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

  A federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

  EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2019-0143 which is available for public viewing at the Water Docket in the EPA Docket Center (EPA/DC), WJC West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566- 1744, and the telephone number for the Water Docket is<PHONE_NUMBER>. An electronic version of the public docket is available online for viewing at http://www.regulations.gov. Use http://www.regulations.gov to view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select `search," then key in the docket ID number identified above.

                                                APPENDIX
                                     Derivation of Burden Estimates

  Methodology

  To evaluate the burden under this rule, EPA considered Revised Interpretation of Clean Water Act Tribal Provision (ICR number 2515.02). ICR number 2515.02 collected quantitative resource information from the eight tribes listed in section 3.3 that have experience in applying for TAS for the WQS Program. EPA 303(d) Program experts also estimated respondent burden of the staff hours and contractor funds the tribes would expend in preparing their TAS applications.

  EPA also referred to ICR 1560.12, National Water Quality Inventory Report for information related to EPA 303(d) listing activities and TMDL development burden evaluation.

  Utility and Limitations

  The estimates based on tribal input reflect the best available information, consistent with Revised Interpretation of Clean Water Act Tribal Provision (ICR number 2515.02). EPA selected the tribes because of their knowledge of the TAS process and willingness to participate. The tribal staff members interviewed were either direct participants or observers at the time the applications were developed. They were knowledgeable about how their tribes demonstrated inherent authority and were able to discern how the level of effort would have differed if such a demonstration had not been required.

  The information obtained from the EPA 303(d) Program experts has certain limitations. First, some of the information could lack precision and accuracy because it depends largely on Regional estimates. Second, this analysis estimates the number of TAS for 303(d) applications EPA would receive from tribes as well as the burden involved to develop an application when no such application has yet been developed and submitted to EPA. EPA used a conservatively-high estimate, yet a more realistic one compared to the previous ICR, of the annual rate of tribal applications and expected 303(d) tribal activity. This estimate was used to ensure that the ICR does not underestimate tribal burden, given that EPA used a simplifying steady-state assumption in estimating annualize tribal application costs

  Assumptions for estimates

  This analysis assumes that all TAS for 303(d) applications would be submitted by tribes already having TAS for the CWA Section 303(c) WQS Program thus the tribes would be able to rely on materials from previous applications. The tribe would need to submit only material that had not been provided as part of the WQS TAS application process.

  ICR burdens are stated as annualized burdens. In the analysis below, EPA has used a steady-state assumption to simplify the calculations of annual burden. Specifically, the analysis assumes that the rates of new tribal applications for CWA regulatory programs and TMDL development are steady at the same number from one year to the next. This assumption enables EPA to assume that the entire burden for a tribe occurs within the first year when calculating annual burden rates (in reality applications by tribes may require multiple years). This is because in a steady-state situation, assuming all burden occurs within one year is mathematically equivalent to a two-year process with one-half of the burden occurring in each year.

  Burden estimates are informed by the ICR 1560.12 and are based upon information available to EPA at this time. EPA is in the final phases of designing the Water Quality Framework, which is a new way of integrating EPA's data and information systems to more effectively support reporting and tracking water quality protection and restoration actions. EPA expects that the reporting burden will decrease and will revise the ICR burden after the new information system is implemented. Agency estimates assume a total of five tribes participating in the 303(d) Program. Participation, however, will be gradual and most activity will more likely to take place in the final year of this ICR rather than the first. In the first and second year of this ICR, EPA expects implementation of the 303(d) Program may be minimal as tribes would be ramping up their programs. Final listing activities and preliminary TMDL activities may occur more toward year three of this ICR cycle.  Thus, the burden and cost estimates in this ICR are likely conservatively high.

  More data will be available to revise the ICR burden as EPA merges this ICR, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act, with the National Water Quality Inventory Reports ICR in a future renewal cycle.

  Estimates of Total Burden

  EPA estimates that the TAS for 303(d) application burden for a typical tribe would be 270 burden hours and $7,466 of contractor support. EPA used an average for the burden hours and a proportional contractor support value from ICR number 2515.02, Revised Interpretation of Clean Water Act Tribal Provision. In other words, the 270 burden hours and $7,466 of contractor support are roughly proportional to the 1,607 hours and $43,920 of contractor support median per-tribe burden estimates, post-rule estimates from ICR number 2515.02.

  In summary, the respondent burden for applying for TAS status under the 303(d) Program is estimated to be 270 hours plus $7,466 in contract support per tribe. Predicting five tribes will submit an application over the three-year ICR cycle, the total annual burden is 450 hours and cost $42,197.

  The annual tribal burden and cost for responsibilities related to implementation of the 303(d) Program for five tribes is estimated to be 15,790 hours and $1,044,035 for listing activities and 18,517 hours and $1,223,220 for TMDL development activities.

  The annual burden of this ICR is 34,757 hours
  The annual cost of this ICR is $2,309,452.