EPA attempted to obtain sales and employment data from the Dun & Bradstreet corporate database for the 132 companies in the selection described in Chapter 2, following a rigorous search and matching procedure. The procedure began with a basic search by company name for each company in the selection. Companies for which the initial search returned a single match were checked for a U.S. address and considered positively matched. Companies for which the initial search returned multiple matches were subsequently filtered by zip code. Companies not found in the D&B database were considered unmatched.
As noted above, the SBA small business definitions consider either the sales or employment of parent companies when classifying a subsidiary as a small business. Therefore, for the matched companies identified in the D&B database as subsidiaries of a parent company, the parent company's data were recorded. For all other matched companies, the company's data were recorded.
A more intensive matching procedure was subsequently applied to the set of companies not matched in the original procedure. After undertaking basic online research, each unmatched company was identified as either (a) owned or acquired by a parent company; (b) a joint venture between two or more companies; (c) out of business; or (d) none of these. This information was then used to perform a new round of matching in the D&B database, yielding several more matches. For the matched companies identified by this procedure, the parent company's data were recorded.
Several special cases occurred during the search and matching process. In two cases, a company had multiple apparent registrations under a single name and at a single address; however, these entries were not linked in the D&B database, as generally are companies with shared ownership, thus causing difficulty in identifying the parent company. In one of these cases, the entries were few enough in number to identify the parent company; however, in the other case, the parent could not be identified.
A total of 103 companies in the selection were found in the D&B database. Of these, 83 companies have no parent company, and 20 companies have a parent company; however, one of the parent companies was already a member of the selection, thus reducing the matched subset to 83 + 20  -  1 = 102 companies. An additional two companies were identified as joint ventures, and one company was verified closed. Twenty-six companies remained unmatched against the D&B database.
Annual sales data were obtained from the D&B database and internet-based searches for 95 of these 102 companies. Of the 95 nanomaterials manufacturers and parent companies found with sales data, 34 have annual sales equal to or greater than $4 million and are therefore subject to the proposed rule. Within this subset, 20 companies (58.8 percent) meet the SBA small business definitions for their respective NAICS classifications, and 14 companies (41.2 percent) do not meet the SBA small business definitions. These results are provided Table 8-2. All of these companies are considered large businesses under the rule definition of small business.
Table 8-2: Small Business and Large Business Characteristics of Subset
                                   Category
                           Number of Firms in Subset
                               Percent of Subset
Small Businesses
                                      20
                                     58.8%
Large Businesses
                                      14
                                     41.2%
Total
                                      34
                                    100.0%
Note: Entries may not sum to total due to rounding.
Source: D&B, 2009; Lux Research, 2007; Nanowerk, 2009.

Multiplying the percent of U.S.-based nanomaterials manufacturers that meet the SBA small business definitions (58.8 percent) by the previously estimated number of U.S.-based nanomaterials manufacturers subject to the proposed rule (295 companies) yields an estimate of around 174 small business nanomaterials firms and a complementary estimate of around 121 large (non-small) business nanomaterials firms that are subject to the rule. All of these companies would be considered large businesses under the rule definition of small business.
Table 8-3: Small Business and Large Business Estimates
                              Population Category
                             Est. Number of Firms
                                   Percent
                               Small Businesses
                                      174
                                     58.8%
                               Large Businesses
                                      121
                                     41.2%
                                     Total
                                      295
                                    100.0%
Note: Entries may not sum to total due to rounding.
Source: BCC Research, 2006; D&B, 2009.

 Estimate the Cost-to-Sales Ratio for Small Companies
As previously stated, the number of nanomaterials produced for commercial applications by the 174 small U.S.-based nanomaterials manufacturers, processors, and distributors estimated above is assumed to double over the analysis period. It is assumed that nanomaterials firms will produce 5.06 regulated nanomaterials in the first year of the rule, and an additional 0.56 nanomaterials per year in subsequent years. (Appendix B presents a sensitivity analysis for the cost-to-sales ratio based on the number of nanomaterials produced.) As indicated in Table 3-9, the total cost of the rule over the 10-year analysis period is $2.71 million with a three percent discount rate and $2.97 million with a seven percent discount rate. On a per-firm basis, annualized costs are approximately $9,180 with a three percent discount rate and $10,081 with a seven percent discount rate.
Past small business analyses developed by EPA have used a lower impact threshold of compliance costs of less than 1 percent of sales and a higher impact threshold as compliance costs of greater than 3 percent of sales to evaluate whether or not the economic impacts faced by the small entities are significant. Therefore, to determine the magnitude of any potential adverse impact of the proposed rule on small entities, annualized per-company compliance costs were compared to annual sales. D&B data for the 20 small businesses (by SBA definitions) identified among the 34 companies in the 95-company subset of U.S.-based nanomaterials firms (with D&B sales data) subject to the proposed rule were used to develop cost-to-sales ratios for these companies, which are believed to be representative of cost-to-sales ratios for the estimated 174 small businesses.
Given expected annualized per-company costs ranging between approximately $9,180 and $10,081, a one percent-of-sales threshold for economic impact equates to sales thresholds of approximately $918,000 and $1,008,000, respectively; in other words, in order for the compliance cost to exceed one percent of sales, sales must be less than these values. Similarly, three percent-of-sales thresholds for economic impact range from approximately $306,000 to $336,000. These equivalences are show in Table 8-4.
                Table 8-4: Characterization of Economic Impacts
                             Economic Impact Type
                           Cost-to-Sales Percentage
                  Equivalent Sales Dollar Threshold ($1,000)
                                    ($2013)

                                Annualized (3%)
                                Annualized (7%)
                                 Higher Impact
                                    > 3%
                                   < $306
                                   < $336
                                 Lower Impact
                                   1% to 3%
                                 $306 to $918
                                 $336 to 1,008
                              Less than 1% Impact
                                    < 1%
                                   > $918
                                  > $1,008

Table 8-5 summarizes the estimated cost impacts for the subset of small business, and applies these percentages to estimate impacts to the estimated 174 impacted small businesses. As indicated, all 20 small businesses (100.0 percent) from the subset, and thus all small businesses in the estimated 174 subject to the rule, are expected to experience an impact of less than one percent of sales.
Table 8-5: Estimate of Impacts on Small Business Subset
                             Economic Impact Type
                           Cost-to-Sales Percentage
                                    Subset
                     Estimated Total Number of Small Firms

                               3% Discount Rate
                               7% Discount Rate

                                    Number
                                    Percent
                                    Number
                                    Percent
                                    Number
                                    Percent
                                 Higher Impact
                                    > 3%
                                       0
                                     0.0%
                                       0
                                     0.0%
                                       0
                                     0.0%
                                 Lower Impact
                                   1% to 3%
                                       0
                                     0.0%
                                       0
                                     0.0%
                                       0
                                     0.0%
                              Less than 1% Impact
                                    < 1%
                                      20
                                     0.0%
                                      20
                                     0.0%
                                      174
                                     00.0%
                                     Total
                                      --
                                      20
                                    100.0%
                                      20
                                    100.0%
                                      174
                                    100.0%
Source: D&B, 2009; EPA, 2009a.

In EPA's judgment, the cost estimates presented in this analysis are over-estimates. There are several reasons why the rule may impact certain small businesses more than others. Recently chartered companies may have lower sales at the time of reporting and therefore experience a relatively higher impact under the rule as a percentage of current annual sales. Some firms may sell only a single nanomaterial that comprises (and limits) its entire revenue stream, raising the impact of the rule as a percent of sales; other firms may offer a broad portfolio of products other than nanomaterials. In EPA's judgment, no companies are expected to experience a prohibitive cost or burden under the proposed rule.

  -  Other Impact Analyses
Several statutes and executive orders (EOs) pertain to the proposed rule. This chapter presents statements discussing paperwork reduction, unfunded mandates, regulatory planning and review, tribal governments, children's health, and environmental justice, among others.
 Paperwork Reduction Act (PRA)
According to the Paperwork Reduction Act (PRA), 44 USC 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information that requires Office of Management and Budget (OMB) approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0067 (EPA ICR No. 1198).  The proposed rule will impose a burden requiring additional OMB approval.  The ICR addendum is available for comment in the public docket for the proposed rule.
 This section estimates the burden and costs for both the respondents and the Agency associated with the recordkeeping and reporting requirements of the proposed rule.  In this context, the term "burden" is interpreted as the total time, effort, or financial resources expended by people to generate, maintain, retain, disclose, or provide information to or for a federal agency. This includes the time needed by regulated entities to review instructions and to develop, acquire, install, and use technology and systems to collect, validate, verify, and disclose information. Time taken to adjust existing ways to comply with any previously applicable instructions and requirements and to train personnel to respond to the information collection task is also included. In this section, burden hours for both the industry respondents and the government are estimated.
Table 9-1 presents a summary of the total burden and costs to industry associated with the proposed rule over the first three years of its promulgation. The data used to populate this table are explained in greater detail in Chapter 3.
          Table 9-1: Industry Burden Estimates for the Proposed Rule
                                     Year
                             Reporting Population
                      Rule Familiarization Burden (Hours)
                                     Form
                 Completion and Record Keeping Burden (Hours)
                   Electronic Reporting Requirements (Hours)
                               Number of Reports
                             Total Burden (Hours)
                                       1
                                      295
                                     0.82
                                    137.60
                                     1.42
                                     1,493
                                    206,098
                                       2
                                      295
                                     0.00
                                    137.60
                                     0.17
                                      165
                                    22,754
                                       3
                                      295
                                     0.00
                                    137.60
                                     0.17
                                      165
                                    22,754
                                    Average
                                      295
                                     0.27
                                    137.60
                                     0.59
                                      608
                                    83,869
Notes: Values may not calculate due to rounding.
See Chapter 3 for more details.

 Unfunded Mandates Reform Act (UMRA)
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Public Law 104-4), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. Based on EPA's experience with similar information collection rules, State, local, and tribal governments have not been affected by this reporting requirement, and EPA does not have any reason to believe that any State, local, or tribal government will be affected by this rulemaking.
 Executive Order 13132  -  Federalism
Under Executive Order 13132, "Federalism" (64 FR 43255, August 10, 1999), EPA has determined that the proposed rule does not have "federalism implications" because it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in the executive order. The proposed rule establishes reporting and recordkeeping requirements that apply to manufacturers and processors of certain chemicals. Because EPA has no information to indicate that any state or local government manufactures or processes the chemical substances covered by this action, the proposed rule does not apply directly to states and localities and will not affect state and local governments. Thus, EO 13132 does not apply to the proposed rule.
 Executive Order 13175  -  Consultation and Coordination with Indian Tribal Governments
As required by Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), EPA has determined that this proposed rule does not have tribal implications because it will not have any effect on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. Thus, EO 13175 does not apply to the proposed rule.
 Executive Order 13045  -  Children's Health
Executive Order 13045, "Protection of Children from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), requires that federal agencies examine the impacts of each regulatory action on children for any economically significant regulation (as defined by Executive Order 12866) that the Agency has reason to believe may disproportionately affect children.
EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. The proposed rule does not establish an environmental standard intended to mitigate health or safety risks and will not have an annual effect on the economy of $100 million or more, nor does it otherwise have a disproportionate effect on children. Nevertheless, the information obtained from the reporting required by this rule will be used to inform the Agency's decision-making process regarding chemicals to which children may be disproportionately exposed. This information will also assist the Agency and others in determining whether the chemicals in this proposed rule present potential risks, allowing the Agency and others to take appropriate action to investigate and mitigate those risks.
 Executive Order 12898  -  Environmental Justice
Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations" (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The Agency believes that the information collected under this proposed rule, if finalized, will assist EPA and others in determining the potential hazards and risks associated with various chemicals manufactured and used at the nanoscale. Although not directly impacting environmental justice-related concerns, this information will enable the Agency to better protect human health and the environment, including in low-income and minority communities.
The proposed rule is directed at all nanoscale substances for which basic production, use, and toxicity information is currently unavailable. All consumers of these chemicals and the products made from them and all workers who come into contact with these chemicals could benefit if data regarding the chemicals' health and environmental effects were developed. Therefore, it does not appear that the costs and the benefits of the proposed rule will be disproportionately distributed across different geographic regions or among different categories of individuals.
 Executive Order 13211  -  Energy Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
 National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
The proposed rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

 -  Wage Rate Calculations
This appendix describes the derivation of the fully loaded wage rates and inflation factors used in calculating costs of labor, materials, and other inputs. All cost estimates are presented in 2011 dollars.
The fully loaded unit labor cost for managerial, professional/technical, and clerical labor in the regulated industry and for EPA staff is estimated by adding fringe benefits and overhead costs to the hourly wage or annual salary for each category following the method described in Wage Rates for Economic Analysis of the Toxics Release Inventory Program (EPA, 2002b). This appendix describes the method employed to estimate the fully loaded unit labor costs for each labor category and presents the results of the analysis.
Labor categories used in the analysis correspond to the U.S. Bureau of Labor Statistics (BLS) Standard Occupational Classification (SOC) system. In March 2004, BLS began using the North American Industry Classification System (NAICS) instead of the Standard Industrial Classification (SIC) System, and the Standard Occupational Classification (SOC) system instead of the Occupational Classification System (OCS). Exhibit A-1 summarizes the crosswalk between old and new occupational titles, and lists the SOC titles that correspond to the managerial, professional/technical, and clerical labor categories used in this analysis (Weinstein and Loewenstein, 2004).
Exhibit A-1: Detail of Labor Categories Used in the Analysis
Labor Category Used in the Analysis
BLS Old Title (OCS)
BLS New Title (SOC)
Managerial
Executive, administrative, and managerial
Management, business, and financial
Professional/Technical
Professional specialty and technical
Professional and related
Clerical
Administrative support, including clerical
Office and administrative support
Source: BLS (2014); Weinstein and Loewenstein (2004).

Derivation of Industry Unit Wage Rates
Wages and fringe benefit data for managerial, professional/technical, and clerical labor are from the BLS Employer Costs for Employee Compensation (ECEC) historical data for December 2013 (BLS, 2014).
The costs of fringe benefits such as paid leave and insurance, specific to each labor category, are taken from the same BLS report (BLS, 2014). Fringe benefits as a percentage of wages are calculated separately for each labor category. For example, the wage rate for professional/ technical labor in 2013 was $38.16, and the average fringe benefit was $19.90. Therefore, fringe benefits as a percentage of wages were $19.90/$38.16, or approximately 52 percent (see Exhibit A-2).
An additional loading factor of 17 percent is applied to wages to account for overhead. This approach is used for consistency with Office of Pollution Prevention and Toxics (OPPT) economic analyses for two major rulemakings: Wage Rates for Economic Analyses of the Toxics Release Inventory Program, June 2002 (EPA, 2002b), and the Revised Economic Analysis for the Amended Inventory Update Rule: Final Report, August 2002 (EPA, 2002a). This overhead loading factor is added to the benefits loading factor, and the total is then applied to the base wage to derive the fully loaded wage. For example, fully loaded wage for professional/technical labor in 2013 is $38.16 x (1+ 0.52 + 0.17) = $64.55.
Fully loaded costs for managerial and clerical labor are calculated in a similar manner, as shown in Exhibit A-2.
Exhibit A-2: Derivation of Loaded Industry Wage Rates
                                Labor Category
                       Data Source for Wage Information
                                     Wage
                                Fringe Benefit
                               Fringes as % wage
                              Overhead as % wage1
                           Fringe + overhead factor
                                 Loaded Wages

                                      (a)
                                      (b)
                                  (c)=(b)/(a)
                                      (d)
                                 (e)=(c)+(d)+1
                                  (f)=(a)x(e)
                                  Managerial
BLS ECEC, Private Manufacturing industries, "Management, business, and financial occupations"2
                                    $46.25
                                    $23.71
                                    51.26%
                                      17%
                                     1.68
                                    $77.82
                            Professional/ Technical
BLS ECEC, Private Manufacturing industries, "Professional and related occupations"2
                                    $38.16
                                    $19.90
                                    52.15%
                                      17%
                                     1.69
                                    $64.55
                                   Clerical
BLS ECEC, Private Manufacturing industries, "Office and administrative support occupations"2
                                    $18.05
                                    $9.23
                                    51.14%
                                      17%
                                     1.68
                                    $30.35
Notes:
1 The wage and fringe benefit rates are calculated as the average of the quarterly rates in 2013.
2 An overhead rate of 17% was used based on assumptions in Rice (2002) and U.S. EPA (2002).

Derivation of Agency Unit Wage Rates
Unit wage rates for EPA staff are calculated based on annual federal salaries for the Washington-Baltimore area published by the Office of Personnel Management (OPM) and effective January 2013 (OPM, 2013). The average salary for one full-time equivalent (FTE) staff member is estimated as the salary for a GS-13 Step 5 employee, which is $100,904 annually without fringe benefits and overhead costs. In order to derive the fully loaded salary, EPA multiplied the annual salary by an assumed loading factor of 1.6 to reflect federal fringe benefits and overhead, which results in a fully loaded annual salary of $161,446 (see Exhibit A-3: Derivation of Loaded Agency Wage Rates).
The Agency loading factor of 1.6 is from an EPA guide entitled Instructions for Preparing Information Collection Requests (ICRs) (EPA, 1992, page 30, footnote 9). The 60 percent assumption was labeled "the benefits multiplication factor" in the EPA guide, but has been used in many EPA OPPT ICRs to reflect both fringe benefits and overhead for federal staff. For example, it was used in a document supporting EPA ICR No. 1139.06 (EPA, 2000), with the following explanation:
      The annual costs per FTE are derived by multiplying the annual pay rate by 1.6 (the benefits multiplication factor). The multiplication factor used is recommended in EPA's Office of Policy, Planning, and Evaluation's Instructions for Preparing Information Collection Requests (ICRs) (June 1, 1992). An EPA internal phone call between Carol Rawie (OPPT/EETD/RIB) and Carl Koch (OPPE/RMD/IMB) on May 3, 1994, indicated that the 1.6 factor included not only benefits but also overhead.
Fully loaded costs for Agency labor are shown in Exhibit A-3: Derivation of Loaded Agency Wage Rates.
Exhibit A-3: Derivation of Loaded Agency Wage Rates
Labor Category
Data Source for Wage Information
Date
Wage
Fringe Benefit
Fringes as % wage
Overhead as % wage
Fringe + overhead factor
Loaded Wages

(a)
(b)
(c)=(b)/(a)
(d)
(e)=(c)+(d)+1
(f)=(a)x(e)
                                 EPA staff FTE
Annual federal staff cost: OPM Washington-Baltimore-Northern Virginia, DC-MD-PA-VA-WV, area, GS-13 Step 5 pay rates [a]
                                    Jan-13
                               $100,904 (annual)
                                      --
                          [Included in 60% overhead]
                                    60% [b]
                                     1.60
                               $161,446 (annual)

                                    $48.35
                                   (hourly)

                                $77.36 (hourly)
Notes:
[a] The Agency salary is the unloaded federal GS-13 Step 5 salary ($100,904 for 2013), from the OPM salary table for the Washington-Baltimore-Northern Virginia Locality Pay Area (OPM, 2013). Hourly rates are based on annual salary divided by 2,087 hours.
[b] The 60% fringes-and-overhead rate is from an EPA guide, Instructions for Preparing Information Collection Requests (ICRs) (EPA, 1992, page 30, footnote 9).

  -  Small Business Sensitivity Analysis
The following presents an alternative small business analysis to demonstrate the sensitivity of the small business analysis to changes in the assumed number of nanomaterials produced by each small firm. The current small business analysis in Chapter 8 assumes that both small and large firms produce on average 5.1 "commercial" nanomaterials per firm. In this alternative analysis we calculate the number of nanomaterials manufactured separately for large and small firms and how this change affects the number of small businesses significantly affected by the proposed rule.
Estimation of the number of nanomaterials per small Firm
In Section 2.4 of this report EPA calculates the number of nanomaterials produced by each firm, based on a subset of 34 large businesses, using the TSCA-based definition of annual revenue greater than $4 million. Within this group of 34 companies, EPA then calculated the median number of nanomaterials and makes the assumption that both small and large businesses produce the same number of nanomaterials. However, this assumption may overestimate the impact of the requirements on small businesses. In this appendix, we present the costs to small businesses using the subset of 34 businesses that are currently used in Chapter 2 to estimate the average number of nanomaterials produced by small and large companies as opposed to all companies.
Of the 34 nanomaterial-producing firms identified in Chapter 2, 26 had product information available on a company website. Twenty-three of these firms manufactured nanomaterials for TSCA-related uses. Of these 23 firms, 12 are small and 11 are large using SBA's NAICS-specific sales or employee-based definitions. EPA calculated the median number of nanomaterials for these 12 small companies to be 11.5 nanomaterials. This is slightly lower than the median number for all companies, 13, which is used to calculate the number of nanomaterials per firm in Section 2.4. Based on results in Chapter 2, EPA estimated that the number of nanomaterials that are produced for R&D purposes is 61.11 percent. Subtracting 61.11 percent R&D nanomaterials from the total number of nanomaterials produces an estimate of 4.47 "commercial" nanomaterials produced by each small firm. This is slightly fewer than the 5.06 "commercial" nanomaterials estimated for all companies in Section 2.4.3 of this report.

Exhibit B-1: Number of Nanomaterials per Company after the R&D Exclusion
                                 Company Size
                            Nanomaterials per Firm
                             R&D Exclusion (%)
                             R&D Exclusion (#)
                   "Commercial" Nano-materials per Firm
All Large Businesses under TSCA definition
                                     13.0
                                    61.11%
                                      7.9
                                      5.1
Subset of Small Businesses (SBA definition)
                                     11.5
                                    61.11%
                                      7.0
                                     4.47
Note: Small businesses included here are the set of companies considered large under the TSCA definition (and therefore subject to the proposed rule) but also considered small under the NAICS-specific SBA definition.

Conclusions
EPA completed an analysis of impacts on small entities in Chapter 8 and found that no small businesses were impacted at greater than 1% of their sales. Costs to these entities were based upon the reporting costs per nanomaterial. In this section, EPA's calculations suggest that the number of nanomaterials that a small entity will necessarily report on could be overestimated. In this case, it follows that costs would also be overestimated if there are fewer reports required. Therefore, it is reasonable to conclude that no small entities would be impacted at greater than one percent of sales under the alternative estimate of the number of nanomaterials presented above.

- References
Applegate, J.S. 1991. The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control. Columbia Law Review, 91(2): 261-333.
BCC Research. 2008. Nanotechnology: A Realistic Market Assessment.
Bureau of Labor Statistics (BLS). 2014. "Employer Costs for Employee Compensation (ECEC) Supplemental Tables: December 2006 to March 2014." Available at: http://www.bls.gov/ncs/ect/sp/ecsuphst.pdf. Accessed July 2014.
      Berger, 2009. Personal Communication between Michael Berger, Nanowerk, and Daniel Gross, Abt Associates. August 11, 2009.
      Cohen, M. and V. Santhakumar. 2007. Information Disclosure as Environmental Regulation: A Theoretical Analysis. Environmental and Resource Economics, 37(3): 599-620.
      Dun & Bradstreet (D&B). 2009. Duns Market Identifier Database.
Konar, S. and M. Cohen. 1997. Information As Regulation: The Effect of Community Right to Know Laws on Toxic Emissions. Journal of Environmental Economics and Management, 32: 109-124.
Lux Research. 2007. The Nanotech Report(TM). 5th Ed.
Nanowerk. 2009. "Company & Labs Directory." Available at: http://www.nanowerk.com/nanotechnology/research/nanotechnology_links.php. Accessed October 08, 2009.
Roco, M.C. 2005. "Nanotechnology." Presented at 2nd Annual International Symposium on Nanotechnology and Occupational Health. University of Minnesota, October 3, 2005.
U.S. Environmental Protection Agency (EPA), Office of Policy, Planning and Evaluation. 1992. Instructions for Preparing Information Collection Requests (ICRs).
U.S. Environmental Protection Agency (EPA). Office of Pollution Prevention and Toxics; Economics,	Exposure, and Technology Division; Regulatory Impacts Branch, 1994. Regulatory Impact	Analysis of Amendments to Regulations for TSCA Section 5 Premanufacture Notifications
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2000. Supporting Statement for EPA ICR No. 1139.06: TSCA Existing Chemical Test Rules, Consent Orders, Test Rule Exemptions, and Voluntary Test Data Submissions.
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2002a. Economic Analysis for the Amended Inventory Update Rule: Final Report. EPA-HQ-OPPT-2002-0054-0260.
U.S. Environmental Protection Agency (EPA). Office of Pollution, Prevention and Toxics. 2002b. Wage Rates for Economic Analyses of the Toxics Release Inventory Program.
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2003a. Economic Analysis for the Addition of 47 Chemical Abstract Service (CAS)-numbered Chemicals Requested to be added to EPA's Preliminary Assessment Information Reporting (PAIR) Rule in the 48th, 50th, and 51st Reports of the TSCA Interagency Testing Committee. EPA-HQ-OPPT-2002-0061-0005.
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2003b. Economic Analysis of Expedited Significant New Use Rules for 65 Chemical Substances. EPA-HQ-OPPTS-2002-0078.
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2006. Supporting Statement for EPA ICR No. 1198.05: Information Collection Request for Toxic Substance Control Act Section 8(a) Chemical-Specific Information Gathering Rules
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2007. Supporting Statement for EPA ICR No. 2250.01: Information Collection in Support of EPA's Stewardship Program for Nanoscale Materials.
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2009a. Economic Analysis of the Premanufacture Notification Electronic Reporting Final Rule (EPA-HQ-OPPT-2008-0296).
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2009b. Nanoscale Materials Stewardship Program Interim Report.
U.S. Environmental Protection Agency (EPA), Office of Research and Development. 2009c. Nanomaterial Research Strategy.
U.S. Environmental Protection Agency (EPA), Office of Pollution Prevention and Toxics. 2009d. "Nanoscale Materials Stewardship Program." Available at: http://www.epa.gov/oppt/nano/stewardship.htm. Accessed October 08, 2009.
U.S. Environmental Protection Agency (EPA). 2011. Supporting Statement for EPA Information Collection Request Number 2002.05, "Cross-Media Electronic Reporting Rule" Office of Environmental Information, U.S. Environmental Protection Agency. June 22, 2011.
U.S. Office of Personnel Management (OPM). 2013. "Salary Table 2013-DCB: for the Locality Pay Area of Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA." Effective January 2013.  Available at: http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2013/general-schedule/gs.pdf. Accessed July 2014.
U.S. Small Business Administration (SBA). 2014. "U. S. Small Business Administration Table of Small Business Size Standards Matched to North American Industry Classification System Codes effective July 14, 2014". Available at: https://www.sba.gov/content/small-business-size-standards. Accessed February 2015.
Weinstein, Harriet G and Mark A. Loewenstein. U.S. Bureau of Labor Statistics (BLS). 2004. "Comparing Current and Former Industry and Occupation ECEC Series." Available at: http://www.bls.gov/opub/cwc/cm20040823ar01p1.htm. Accessed October 08, 2009.
White House Office of Management and Budget (OMB). 2003. Circular A-4. Available at: http://www.whitehouse.gov/omb/circulars/a004/A-4.html. Accessed October 08, 2009.


[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 88900-88905]
[FR Doc No: 2023-28443]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. AD24-6-000]

Federal Power Act Section 203 Blanket Authorizations for
Investment Companies

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of inquiry.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) seeks
comment on whether, and if so, how, the Commission should revise its
policy on providing blanket authorizations for investment companies
under section 203(a)(2) of the Federal Power Act. The Commission also
seeks comment on what constitutes control of a public utility in
evaluating holding companies', including investment companies',
requests for blanket authorization and what factors it should consider
when evaluating control over public utilities as part of a request for
blanket authorization.

DATES: Initial comments are due March 25, 2024 and reply comments are
due April 24, 2024.

ADDRESSES: Comments, identified by docket number, may be filed in the
following ways. Electronic filing through http://www.ferc.gov, is
preferred.
     Electronic Filing: Documents must be filed in acceptable
native applications and print-to-PDF, but not in scanned or picture
format.
     For those unable to file electronically, comments may be
filed by USPS mail or by hand (including courier) delivery.
    [cir] Mail via U.S. Postal Service Only: Addressed to: Federal
Energy Regulatory Commission, Secretary of the Commission, 888 First
Street NE, Washington, DC 20426.
    [cir] Hand (including courier) Delivery: Deliver to: Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.

    The Comment Procedures Section of this document contains more
detailed filing procedures.

FOR FURTHER INFORMATION CONTACT:
    Noah Monick (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, [email protected].

    Michelle Wei (Technical Information), Office of Energy Market
Regulation, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426, [email protected].

SUPPLEMENTARY INFORMATION:
    1. In this Notice of Inquiry (NOI), the Commission seeks comment on
whether, and if so, how, the Commission should revise its policy on
providing blanket authorizations for investment companies \1\ under
section 203(a)(2) of the Federal Power Act (FPA).\2\ The Commission
also seeks comment on what constitutes control of a public utility in
evaluating holding companies', including investment companies',
requests for blanket authorization and what factors it should consider
when evaluating control over public utilities or holdings companies
thereof as part of a request for blanket authorization.
---------------------------------------------------------------------------

    \1\ For the purposes of this NOI, the term ``investment
companies'' refers to those companies meeting the definition of
``investment companies'' in the Investment Company Act of 1940,
which includes any issuer that ``holds itself out as being engaged
primarily, or proposes to engage primarily, in the business of
investing, reinvesting, or trading in securities.'' 15 U.S.C. 80a-3.
If commenters believe the Commission should apply a different
definition or use a different term, they are encouraged to explain
in their comments.
    \2\ 16 U.S.C. 824b(a)(2).
---------------------------------------------------------------------------

I. Background

    2. Section 203(a)(2) of the FPA provides that:

    No holding company in a holding company system that includes a
transmitting utility or an electric utility shall purchase, acquire,
or take any security with a value in excess of $10,000,000 of, or,
by any means whatsoever, directly or indirectly, merge or
consolidate with, a transmitting utility, an electric utility
company, or a holding company in a holding company system that
includes a transmitting utility, or an electric utility company,
with a value in excess of $10,000,000 without first having secured
an order of the Commission authorizing it to do so.\3\
---------------------------------------------------------------------------

    \3\ Id.

    3. The Commission has both established in its regulations and
granted by Commission order blanket authorizations under section
203(a)(2) for transactions that meet certain criteria. In Order No.
669,\4\ the Commission promulgated regulations to implement the
amendments to section 203 in the Energy Policy Act of 2005 (EPAct
2005),\5\ including granting blanket authorizations for certain types
of transactions, such as foreign utility acquisitions by holding
companies, intra-holding company system financing and cash management
arrangements, certain internal corporate reorganizations, and certain
investments in transmitting utilities and electric utility
companies.\6\ The Commission stated that its goal in promulgating the
new regulations was ``to ensure that all jurisdictional transactions
subject to section 203 are consistent with the public interest and at
the same time ensure that our rules do not impede day-to-day business
transactions or stifle timely investment in transmission and generation
infrastructure.'' \7\ For example, one of the blanket authorizations
granted by the Commission provides authorization for holding companies
regulated by the Board of Governors of the Federal Reserve Bank or by
the Office of the Comptroller of the Currency, under the Bank Holding
Company Act of 1956 as amended by the Gramm-Leach-Bliley Act of 1999,
to acquire and hold an unlimited amount of the securities of holding
companies that include a transmitting utility or an electric utility
company.\8\ The blanket authorization requires that the securities be
held either as a fiduciary, as principal for derivatives hedging
purposes incidental to the business of banking (so long as it commits
not to vote such securities to the extent they exceed 10 percent of the
outstanding shares), as collateral for a loan, or solely for purposes
of liquidation and in connection with a loan previously contracted for
and owned beneficially for a period of not more than two years (subject
to conditions and a reporting requirement).\9\
---------------------------------------------------------------------------

    \4\ Transactions Subject to FPA Section 203, Order No. 669, 113
FERC ] 61,315 (2005), order on reh'g, Order No. 669-A, 115 FERC ]
61,097, order on reh'g, Order No. 669-B, 116 FERC ] 61,076 (2006);
see Blanket Authorization Under FPA Section 203, Order No. 708, 122
FERC ] 61,156, order on reh'g, Order No. 708-A, 124 FERC ] 61,048
(2008), order on reh'g, Order No. 708-B, 127 FERC ] 61,157 (2009)
(amending the Commission's regulations pursuant to FPA section 203
to provide for additional blanket authorizations under FPA section
203(a)(1)).
    \5\ Energy Policy Act of 2005, Public Law109-58, 119 Stat. 594
(2005).
    \6\ See 18 CFR 33.1(c).
    \7\ Order No. 669, 113 FERC ] 61,315 at P 4.
    \8\ 18 CFR 33.1(c)(9).
    \9\ See id. Sec.  (c)(9)(i)-(iv).
---------------------------------------------------------------------------

    4. Prior to Order No. 669, the Commission's order in UBS AG granted
a blanket authorization on an individual basis for UBS AG and Bank of
America to acquire public utility securities during their banking
businesses.\10\ The Commission stated that it was satisfied that the
applicants in that proceeding would be precluded from using their
fiduciary holdings to serve their own interests, rather than the
interests of their fiduciary clients. The Commission stated that
``backstop protection is provided by the procedures, controls and
monitoring programs banking institutions are required to have in place
in order to conduct fiduciary activities and the comprehensive nature
of supervision and regulation by Bank Regulators of banks' fiduciary.''
\11\
---------------------------------------------------------------------------

    \10\ UBS AG, 101 FERC ] 61,312 (2002), order on reh'g, 103 FERC
] 61,284, order on reh'g, 105 FERC ] 61,078 (2003).
    \11\ UBS AG, 105 FERC ] 61,078 at P 16.
---------------------------------------------------------------------------

    5. The Commission has also issued blanket authorizations, on a
case-specific basis to investment companies, that allowed the
acquisitions of securities in public utilities over the $10 million
threshold established by EPAct 2005 and up to 20% of the outstanding
voting securities of a given public utility. For instance, in 2006, the
Commission granted a blanket authorization for Capital Research and
Management Company to acquire utility securities on behalf of its
funds, subject to certain conditions.\12\ As a result of these
conditions, including limitations on the amount of both collective
ownership and ownership of securities for each individual fund,
governing policies, and status as beneficial owners eligible to file
Schedule 13G under the Securities' and Exchange Act of 1934,\13\ the
Commission found that Capital Research and Management Company could not
exercise control over public utilities, and that there would be no harm
to the public interest that could otherwise result from their holding
significant equity positions in public utilities.\14\ The Commission
noted that the repeal of the Public Utility Holding Company Act of 1935
(PUHCA 1935) and modifications to section 203 of the FPA had changed
the law governing investment in utility securities.\15\ The Commission
found that a blanket authorization was appropriate to ``encourage
greater investment in utilities by mutual funds,'' provided that the
Commission can perform continuing oversight in accordance with section
203 of the FPA.\16\
---------------------------------------------------------------------------

    \12\ Cap. Research & Mgmt. Co., 116 FERC ] 61,267 (2006).
    \13\ 15 U.S.C. 78a et seq.
    \14\ Cap. Research & Mgmt. Co., 116 FERC ] 61,267 at P 32.
    \15\ Id. PP 26-27 (citing 15 U.S.C. 79a et seq.).
    \16\ Id. P 28.

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    6. The Commission issued other individual blanket authorizations
after its order in Capital Research & Management Co. applying similar
conditions.\17\ The blanket authorizations were time-limited, for a
period of three years, based on the Commission's reasoning that it
should periodically reevaluate whether the blanket authorizations
remained consistent with the public interest.\18\ The Commission has in
several instances granted subsequent requests for extensions of those
blanket authorizations upon the same terms and conditions of the
original orders.\19\
---------------------------------------------------------------------------

    \17\ See Ecofin Holdings Ltd., 120 FERC ] 61,189 (2007); The
Goldman Sachs Grp., 121 FERC ] 61,059 (2007); Morgan Stanley, 121
FERC ] 61,060 (2007); Legg Mason, Inc., 121 FERC ] 61,061 (2007);
Horizon Asset Mgmt., Inc., 125 FERC ] 61,209 (2008); Franklin Res.,
Inc., 126 FERC ] 61,250 (2009); BlackRock, Inc., 131 FERC ] 61,063
(2010). Additional blanket authorizations were granted via delegated
authority where applicants met the criteria established in
previously-issued Commission orders. See T. Rowe Price Grp., Inc.,
119 FERC ] 62,048 (2007) (delegated order); Lord, Abbett & Co. LLC,
129 FERC ] 62,239 (2009) (delegated order); Mario J. Gabelli GGCP,
Inc., 137 FERC ] 62,127 (2011) (delegated order); The Vanguard Grp.,
Inc., 168 FERC ] 62,081 (2019) (delegated order).
    \18\ See Cap. Research & Mgmt. Co., 116 FERC ] 61,267 at P 46
(``[G]iven the importance of balancing the need for regulatory
oversight with the provision of some business certainty, the
Commission grants the requested authorizations, as conditioned, on a
temporary basis. The authorization expires three years from the date
of this order, without prejudice to requests to extend the
authorization.'').
    \19\ See, e.g., The Goldman Sachs Grp., 134 FERC ] 61,227
(2011); BlackRock, Inc., 179 FERC ] 61,049 (2022).
---------------------------------------------------------------------------

    7. In 2010, the Commission undertook a generic proceeding to
address the acquisition of voting securities of a public utility by
holding companies in response to a petition by the Electric Power
Supply Association (EPSA) requesting that the Commission provide
clarification on the Commission's jurisdiction over investors holding
between 10% and 20% of a public utility's outstanding voting securities
who are eligible to file a statement of beneficial ownership with the
Securities and Exchange Commission.\20\ In that proceeding, the
Commission issued a Notice of Proposed Rulemaking (NOPR) proposing to
create a FERC form wherein holding companies would affirm that an
investor did not control a public utility when the investor refrained
from engaging in certain actions.\21\ Entities signing the form would
have been eligible for a blanket authorization for the acquisition of
up to 20% of the outstanding voting securities of a public utility or
holding company thereof. Comments on the NOPR generally fell into two
groups. The first group believed that the Commission's proposal was too
restrictive and that an investor would be unwilling to commit to the
restrictions on the proposed FERC form, such that the Commission's
proposal did not provide the original relief requested by EPSA; the
second group believed the Commission could be opening up wholesale
energy markets to anticompetitive behavior through partial acquisitions
of the securities of multiple public utilities without adequate
oversight. The Commission ultimately decided that, having considered
these comments, it was persuaded to not seek to adopt the proposed
reforms, and withdrew the NOPR and terminated the rulemaking
proceeding.\22\
---------------------------------------------------------------------------

    \20\ Control & Affiliation for Purposes of Mkt.-Based Rate
Requirements Under Section 205 of the Fed. Power Act & the
Requirements of Section 203 of the Fed. Power Act, 130 FERC ]
61,046, at P 4 (2010) (citing Securities Exchange Act of 1934, 15
U.S.C. Sec.  78a et seq. (2000)).
    \21\ Id. PP 36-37 (requiring an affirmation from the investor
that, among other things, it will: not seek or accept representation
on the public utility's board of directors or otherwise serve in any
management capacity; not request or receive non-public information,
either directly or indirectly, concerning the business or affairs of
the public utility; and not solicit, or participate in any
solicitation of, proxies involving the public utility).
    \22\ Control & Affiliation for Purposes of Mkt.-Based Rate
Requirements Under Section 205 of the Fed. Power Act & the
Requirements of Section 203 of the Fed. Power Act, 157 FERC ] 61,064
(2016).
---------------------------------------------------------------------------

    8. Since the Commission revised its regulations to expand blanket
authorizations under section 203(a)(2) and began granting case-specific
blanket authorizations for holding companies, including investment
companies, there have been changes in the public utility, finance, and
banking industries that warrant consideration of whether the
Commission's blanket authorization policy continues to work as
intended. These changes include consolidation in the public utility
industry as well as the growth of large index funds and asset managers.
Factors such as the repeal of PUHCA 1935 and increased interest in U.S.
utility assets by foreign companies/investors and private equity
investors have led to the greater consolidation of utility holding
companies, as shown by utility merger activity of approximately $200
billion from 2012 to 2018.\23\ At the beginning of 2010, there was
approximately $2.3 trillion invested in index funds, which grew to
$11.4 trillion by the end of 2019.\24\ Index funds are estimated to
have grown from 20% of the fund market in 2011 to 43% by the end of
2021.\25\ Both commenters and FERC Commissioners have noted that this
change in the manner in which assets are owned and controlled warrants
the Commission's careful consideration to make sure that its blanket
authorization policy is consistent with the public interest.\26\
---------------------------------------------------------------------------

    \23\ See Lillian Federico, State Regulatory Reviews Are Creating
Headwinds For Utility Merger Activity, S&P GLOBAL (Apr. 5, 2019),
https://www.spglobal.com/marketintelligence/en/news-insights/research/state-regulatory-reviews-are-creating-headwinds-for-utility-merger-activity.
    \24\ Financial Times, Index Funds Break Through $10m-in-Assets
Mark, https://www.ft.com/content/a7e20d96-318c-11ea-9703-eea0cae3f0de (Jan. 7, 2020).
    \25\ Investment Company Institute, 2022 Investment Company
Factbook, at 29 (2022), https://www.icifactbook.org/pdf/2022_factbook.pdf.
    \26\ Commissioners Danly, Clements, and Christie have raised
concerns related to the influence of large investment companies over
public utilities and whether there is adequate scrutiny in the grant
of some blanket authorizations. See BlackRock, Inc., 179 FERC ]
61,049 (Clements, Comm'r, concurring at P 3); BlackRock, Inc., 179
FERC ] 61,049 (Christie, Comm'r, concurring at PP 4-6); Joint
Statement of Commissioner Danly & Commissioner Christie Regarding
The Vanguard Group, Inc. et al., Docket No. EC19-57-001, at PP 7-9
(Aug. 11, 2022) (eLibrary Accession No. 20220811-4002); Joint
Statement of Commissioner Danly & Commissioner Christie Regarding
The Vanguard Group, Inc., et al., Docket No. EC19-57-002, at P 7
(May 9, 2023) (eLibrary Accession No. 20230509-4000).
---------------------------------------------------------------------------

II. Discussion

    9. We are issuing this NOI to further explore whether, and if so,
how, the Commission should revise its policy on blanket authorizations
for holding companies, including investment companies, under section
203(a)(2) of the FPA. We invite all interested persons to submit
comments and reply comments on any or all of the questions listed
below. Commenters need not answer all the questions.

A. Blanket Authorization Policy

    10. As noted above, the Commission has granted company-specific
blanket authorizations under section 203(a)(2) for holding companies,
including investment companies' managed funds, to acquire the voting
securities of public utilities and holding companies thereof, in
addition to the blanket authorizations granted by the Commission in its
regulations. We seek comment on current Commission policy as well as
whether, and if so, how, the Commission should revise its policy.
    (Q1) Please describe whether the Commission's current blanket
authorization policy, as set forth in the Commission's regulations or
on a case-specific basis, is sufficient to ensure that holding
companies, including investment companies, lack the ability to control
the public utilities and holding companies whose securities they
acquire and that the transactions underlying the blanket authorization
are consistent with the public interest.
    (Q2) If the Commission's current policy is insufficient, how should
the

Commission revise its case-specific blanket authorizations for holding
companies, including investment companies, to acquire voting
securities? How should the Commission revise its regulations providing
certain blanket authorizations under section 203(a)(2)?
    (Q3) Are the existing conditions and restrictions associated with
case-specific blanket authorizations, such as the submission of
Securities and Exchange Commission (SEC) Schedule 13D and 13G filings,
effective in ensuring that holding companies, including investment
companies, lack control over public utilities, and holding companies
thereof, such that the Commission can be assured that the transactions
underlying the blanket authorization are consistent with the public
interest?
    (Q4) Does the current scope or availability of blanket
authorizations for the acquisition of voting securities by holding
companies, including investment companies, create concerns regarding an
adverse effect on competition or jurisdictional rates?
    (Q5) If there are concerns with the current policy regarding grants
of blanket authorizations to holding companies, including investment
companies, are there specific commitments or other conditions from
holding companies, including investment companies, that could give the
Commission assurance that such blanket authorizations are consistent
with the public interest?
    (Q6) The blanket authorization in 18 CFR 33.1(c)(9)(iv) requires
that a holding company file--when securities are held ``[s]olely for
purposes of liquidation and in connection with a loan previously
contracted for and owned beneficially for a period of not more than two
years,''--on a public basis and within 45 days of the close of each
calendar quarter, both its total holdings and its holdings as
principal, each by class, unless the holdings within a class are less
than one percent of outstanding shares, irrespective of the capacity in
which they were held. Specifically, there have been cases where it was
unclear, based on the record, whether an entity has satisfied the
requirements for blanket authorization under 18 CFR 33.1(c)(9).\27\
Should the Commission require a holding company, or a subsidiary of
that company, that qualifies for FPA section 203 blanket authorization
under 18 CFR 33.1(c)(9) to report on what basis it qualifies (i.e.,
``(i) [a]s a fiduciary; (ii) [a]s principal for derivatives hedging
purposes incidental to the business of banking and it commits not to
vote such securities to the extent they exceed 10 percent of the
outstanding shares; (iii) [a]s collateral for a loan; or (iv) [s]olely
for purposes of liquidation and in connection with a loan previously
contracted for and owned beneficially for a period of not more than two
years . . . .'')? Are there any other measures that the Commission
should take to oversee compliance with the terms of these blanket
authorizations?
---------------------------------------------------------------------------

    \27\ See, e.g., Black Hills Colo. Elec., LLC, 184 FERC ] 61,172,
at P 19 (2023) (``Black Hills MBR Sellers state that State Street
represented to them that State Street qualifies under section
33.1(c)(9) of the Commission's regulations for blanket authorization
under section 203(a)(2) of the FPA to acquire and hold an unlimited
amount of securities of holding companies that include a
transmitting utility or an electric utility company.'') (citation
omitted); see also id. (Danly, Comm'r, concurring at P 3) (``It is
not clear to me whether State Street satisfies the requirements
above and nothing in Black Hills MBR Sellers' filing demonstrates
which, if any, of the elements of our regulation State Street
satisfies.'').
---------------------------------------------------------------------------

    (Q7) The case-specific blanket authorizations granted by the
Commission to investment companies generally require informational
filings of holdings, similar to that required of the blanket
authorization in 18 CFR 33.1(c)(9)(iv). Are these informational filings
sufficient for the Commission to maintain an appropriate level of
oversight for compliance with the terms of blanket authorizations? Are
there any other measures that the Commission should take to oversee
compliance with the terms of these blanket authorizations?

B. Large Investment Companies

    11. The three largest index fund investment companies currently
vote over 20% of the stock in the largest U.S. public companies, a
number that may soon rise to 40%.\28\ Some have argued that the size of
these investment companies creates issues related to competition and
gives the investment companies unique leverage over the utilities whose
voting securities they control.\29\ Additionally, some have argued that
the largest index funds have used their ownership stakes to pressure
utilities to meet particular public policy goals, despite committing to
not exercise control over the utilities.\30\ We seek comment on
whether, and if so, how, the Commission should consider the size of an
investment company in evaluating a request for blanket authorization
under section 203(a)(2).
---------------------------------------------------------------------------

    \28\ See Nathan Atkinson, If Not the Index Funds, Then Who?, 17
BERKELEY BUS. L.J. 44, 45 (2020) (``In recent years, large asset
managers have reached incredible sizes, managing trillions of
dollars of assets on behalf of tens of millions of clients. The
largest three, BlackRock, Vanguard, and State Street, taken together
(the `Big Three'), vote about 20% of shares in most large companies,
with the majority of these shares held in passive index funds.'')
(citation omitted); Lucian Bebchuk & Scott Hirst, The Specter of the
Giant Three, 99 B.U. L. REV. 721, 724 (2019).
    \29\ See Public Citizen, Inc., Protest, Docket No. EC16-77-002,
at 1 (filed Mar. 11, 2022) (``Not only is it impossible for a fund
manager of BlackRock's size and scope to remain a passive investor,
scholarly research demonstrates that BlackRock's accumulation of
voting securities constitutes control over utilities, and its
horizontal power over competing utilities harms competition.'').;
see also Einer Elhauge, Horizontal Shareholding, 129 HARV. L. REV.
1267, 1267 (2016) (``A small group of institutions has acquired
large shareholdings in horizontal competitors throughout our
economy, causing them to compete less vigorously with each
other.'').
    \30\ See Consumers' Research, Inc., Motion to Intervene and
Protest, Docket No. EC19-57-002, at 4-5 (filed Nov. 28, 2022)
(arguing that the three largest index funds have ``have embarked on
a full-scale engagement and proxy-voting strategy to force utility
companies to comply with various decarbonization goals''); see also
Eric C. Chaffee, Index Funds & ESG Hypocrisy, 71 CASE W. RES. L.
REV. 1295, 1298-1299 (2021) (noting statements by index fund
managers related to climate and sustainability goals).
---------------------------------------------------------------------------

    (Q8) How can the Commission effectively evaluate the influence and
control exerted by holding companies, including investment companies,
regardless of their size, over public utilities when considering
blanket authorizations under section 203(a)(2)? What factors should be
prioritized to ensure a fair and comprehensive assessment while
maintaining a straightforward and equitable process for all holding
companies, including investment companies?
    (Q9) Please describe whether and how the Commission should consider
holding companies', including investment companies', pre-existing
ownership and control of public utilities and holding companies thereof
in determining whether to grant blanket authorizations under section
203(a)(2).
    (Q10) How should the Commission distinguish between various types
of investment vehicles for purposes of section 203(a)(2) blanket
authorizations?
    (Q11) What are the impacts on the public interest, both positive
and negative, of holding companies, including investment companies,
holding voting securities in multiple public utilities and Commission-
regulated entities?
    (Q12) What other ways may up to 20% ownership or control of
multiple public utilities and holding companies thereof by holding
companies, including investment companies, affect the public interest
that the Commission should consider?

C. Evaluation of Control Under Section 203 of the FPA

    12. Often, when seeking a blanket authorization under section
203(a)(2), an investment company will argue that its investments in
public utilities do not

allow for it to control the public utility, including control over the
day-to-day management and operations of the utility, or holding company
thereof.\31\ However, it has been argued that by holding voting
securities in a large number of public utilities, investment companies
are able to influence utility behavior in ways that are not captured by
the Commission's current analysis of control.\32\ We seek comment on
what factors the Commission should consider when evaluating control
over public utilities as part of a request for blanket authorization.
---------------------------------------------------------------------------

    \31\ See, e.g., BlackRock, Inc., 131 FERC ] 61,063 at P 17.
    \32\ See Senator Michael S. Lee et al., Letter to Commission,
Docket No. EC16-77-002 at 5 (filed June 28, 2023) (``Many of
[BlackRock's] significant attempts to influence control, however,
have likely been behind closed doors, in the form of `investor
engagement' with the backdrop of [Climate Action 100+] and [the Net
Zero Asset Managers Initiative]'s coordinated activities and massive
collective voting power.'').
---------------------------------------------------------------------------

    (Q13) In what way may a holding company, including an investment
company, exert control over public utilities that is not currently
captured by the Commission's current policies and regulations?
    (Q14) What strategies or actions taken by holding companies,
including investment companies, or the actions of a public utility that
is the subject of a blanket authorization could demonstrate control or
a degree of influence that would require prior Commission review under
section 203(a)(2)? In other words, what are the indicia of control that
the Commission could look to when assessing whether a holding company
can exercise control?
    (Q15) Does holding the voting securities, notwithstanding
commitments not to exercise control, of multiple public utilities
provide a form of control or influence that is not addressed by the
Commission's current polices and regulations? If so, how? And how
should the Commission resolve this form of control or influence?
    (Q16) Should the Commission consider the impact of investment
companies holding public utility voting securities on long-term
planning by public utilities or other issues beyond day-to-day control
over utility operations? If so, how?
    (Q17) What corporate governance factors should the Commission
consider when evaluating whether investment companies can exercise
control over public utilities? For instance, should the Commission
consider the ability of an investment company to influence board
membership of a public utility and, if so, how?

III. Comment Procedures

    13. The Commission invites interested persons to submit comments on
the matters and issues identified in this notice. Initial comments are
due March 25, 2024 and reply comments are due April 24, 2024. Comments
must refer to Docket No. AD24-6-000, and must include the commenter's
name, the organization they represent, if applicable, and their address
in their comments. All comments will be placed in the Commission's
public files and may be viewed, printed, or downloaded remotely as
described in the Document Availability section below. Commenters on
this proposal are not required to serve copies of their comments on
other commenters.
    14. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software must be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
    15. Commenters that are not able to file comments electronically
may file an original of their comment by USPS mail or by courier-or
other delivery services. For submission sent via USPS only, filings
should be mailed to: Federal Energy Regulatory Commission, Office of
the Secretary, 888 First Street NE, Washington, DC 20426. Submission of
filings other than by USPS should be delivered to: Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.

IV. Document Availability

    16. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov).
    17. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
    18. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
[email protected].

    By direction of the Commission. Commissioner Christie is
concurring with a separate statement attached.

    Issued: December 19, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.

United States of America

Federal Energy Regulatory Commission

Federal Power Act Section 203 Blanket Authorizations for Investment
Companies
Docket No. AD24-6-000 (Issued December 19, 2023)

    CHRISTIE, Commissioner, concurring:
    1. Public utilities, sometimes called ``public service
corporations'' or ``public service companies'' under various state
laws,\1\ are not garden-variety, for-profit, shareholder-owned
companies. In particular, public utilities that provide electrical
power to retail customers are usually holders of a state-granted
monopoly franchise that comes with various public service obligations,
such as providing reliable power service at rates that are just and
reasonable. So whether a public utility is owned by investors directly
or through a holding company structure, it is absolutely essential for
regulators to make sure that the interests of investors do not conflict
with the public service obligations that a utility has. And yes, there
is a potential conflict. That potential conflict requires heightened
regulatory scrutiny when huge investment companies and asset managers,
as well as large private equity funds, which individually and
collectively direct literally trillions of dollars in capital, appear
to be acting not as passive investors simply seeking the best risk-
based returns for their own clients, but instead appear to be actively
using their investment power to affect how the utility meets its own
public service obligations. That is why this proceeding is so
essential, to explore those issues and determine whether the
Commission's own regulations and regulatory practices are still
sufficient to protect the interests of the customers of public utility
companies which, again, are likely to be monopoly providers of a vital
public service such as electrical power.
---------------------------------------------------------------------------

    \1\ See, e.g., Va. Code Ann. Sec.  56.1 et seq.
---------------------------------------------------------------------------

    2. As I mentioned in my concurrence to an earlier order extending
BlackRock, Inc.'s (BlackRock) blanket authorization under section 203
of the Federal Power Act (FPA),\2\ it simply is no longer a

credible assertion that investment managers, like BlackRock, State
Street Corporation, and The Vanguard Group, Inc., are always or should
be assumed to be merely passive investors. These investment managers
are often the three biggest investors in publicly traded companies
across the U.S. economy, including the utility industry, and wield
significant financial power by virtue of their investments.\3\ These
investment managers may occasionally use that financial power to push
various types of policy agendas, agendas that may ultimately conflict
with the utility's public service obligations to its customers.\4\ Or,
totally different from any policy goal, the threat may come from a
private equity investor's attempt to turn a quick profit on a short-
term trade by undercutting utility practices that are designed to serve
its retail customers over the long term, not the short-term interests
of the private equity investor.
---------------------------------------------------------------------------

    \2\ BlackRock, Inc., 179 FERC ] 61,049 (2022) (Christie, Comm'r,
concurring at P 3) (BlackRock Concurrence), available at https://www.ferc.gov/news-events/news/commissioner-christies-concurrence-blackrocks-authorization-buy-voting-securities.
    \3\ You can see the extent of these investment managers'
holdings through the quarterly reports the Commission receives as
part of the requirements associated with section 203(a)(2) blanket
authorizations. See, e.g., BlackRock, Quarterly Report, Docket No.
EC16-77-002 (filed Nov. 15, 2023) (detailing holdings in several
publicly traded holding companies with public utility subsidiaries).
    \4\ See BlackRock Concurrence at PP 4-5.
---------------------------------------------------------------------------

    3. One focus recently, and rightfully so, has been on ``ESG''
(environmental, social, and governance-related) corporate initiatives,
with huge asset managers pushing policy decisions that should be left
to elected legislators. For example, I have pointed out the reliability
problems that will result from premature dispatchable generation
retirements that may come from these initiatives.\5\ Decisions on the
appropriate generation resources mix for a public utility with a state-
granted franchise are policy decisions for state policymakers, not huge
Wall Street asset managers.
---------------------------------------------------------------------------

    \5\ See, e.g., Testimony of Commissioner Mark C. Christie,
Oversight of FERC: Adhering to a Mission of Affordable and Reliable
Energy for America, United States House of Representatives (June 12,
2023), available at https://www.ferc.gov/media/testimony-commissioner-mark-c-christie-oversight-ferc-adhering-mission-affordable-and; Written Testimony of Commissioner Mark Christie
Before the Committee on Energy and Natural Resources, United States
Senate (Sept. 27, 2021), available at https://cms.ferc.gov/media/written-testimony-commissioner-mark-christie-committee-energy-and-natural-resources-united.
---------------------------------------------------------------------------

    4. But let us be clear--``ESG'' investor activity is simply a
symptom of a larger, more pernicious threat that has always existed in
the utility industry: improper investor influence and control over
public utilities. Large investors can and do force utilities to make
decisions that are contrary to their public service obligations to
their retail customers. This, among other related concerns, is exactly
why Congress enacted a suite of consumer protection statutes, including
the FPA almost 100 years ago. Congress's subsequent revisions to the
FPA over the years, such as by the Energy Policy Act of 2005, signal
the ongoing importance of consumer protection in the Commission's
regulatory responsibilities, including under section 203. Congress may
have directed the Commission to streamline its regulations to
facilitate greater investments in the utility industry, such as through
section 203 blanket authorizations,\6\ but that streamlining does not,
and should never, come at expense of protecting consumers. Indeed, it
is the Commission's task to balance these two competing
responsibilities and to continue to revisit and evaluate that balance.
So I fully agree that this NOI is timely and compelling and I look
forward to moving forward on it.
---------------------------------------------------------------------------

    \6\ See, e.g., Transactions Subject to FPA Section 203, Order
No. 669, 113 FERC ] 61,315 (2005), order on reh'g, Order No. 669-A,
115 FERC ] 61,097, order on reh'g, Order No. 669-B, 116 FERC ]
61,076 (2006).
---------------------------------------------------------------------------

    For these reasons, I respectfully concur.

Mark C. Christie
Commissioner

[FR Doc. 2023-28443 Filed 12-22-23; 8:45 am]
BILLING CODE 6717-01-P


MEETING SUMMARY

Topic:		Carbofuran

Date:		January 29, 2007

Location:	Office of Jon Scholl, EPA Counselor to the Administrator for
Agricultural Policy

Participants:	Jon Scholl, EPA

		Susan Lewis, EPA, Chief, Reregistration Branch 1

 		Jude Andreasen, EPA, Chemical Review Manager

		Rick Kesler, FMC Corporation, Influence & Sales Support Manager

		Jerry Prout, FMC, VP, Government & Public Affairs

		Dan Wilson, Wilson Ag Service, Managing Partner, Farmer (IA)

David Crow, DC Legislative & Regulatory Services, Inc., President

John McGillicuddy, McGillicuddy Corrigan Agronomics, Consultant

Gary Baise, Kilpatrick Stockton, LLP, Attorneys at Law

Terry Ferguson, Farmer (IL)

John Werries, Farmer (IL)

Summary:

Two FMC representatives and two regulatory consultants joined growers
from IL, IA, WA, and KS in a meeting with Jon Scholl on January 29.
They requested the meeting to express their concerns about EPA’s plans
to cancel carbofuran.  They stated that carbofuran is the most
effective, if not the only crop protection tool available to control
corn rootworm, particularly as a late season rescue treatment.

The growers stated that corn rootworm infestations are increasing as
corn-on-corn cultivation increases to meet the demands of the ethanol
market.  EPA assured the growers that we are considering all comments
received and encouraged them to submit efficacy data to support their
view that alternatives to carbofuran are less effective, particularly
for post-emergence corn treatment for rootworm.

FMC provided a schedule for submission of benefits analyses to the
Agency in March.  EPA stated that the analyses would be included in
EPA’s review process if they were received on time, but that the
Agency was proceeding with the Notice of Intent to Cancel.


[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Notices]
[Page 1279]
[FR Doc No: 2016-316]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Agency Information Collection Activities: Requests for Comments;
Clearance of Renewed Approval of Information Collection: Certificated
Training Centers--Simulator Rule

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FAA
invites public comments about our intention to request the Office of
Management and Budget (OMB) approval to renew a currently approved
information collection. To determine regulatory compliance, there is a
need for airmen to maintain records of certain training and recency of
experience; a training center has to maintain records of student's
training, employee qualification and training, and training program
approvals.

DATES: Written comments should be submitted by March 11, 2016.

ADDRESSES: Send comments to the FAA at the following address: Ronda
Thompson, Room 441, Federal Aviation Administration, ASP-110, 950
L'Enfant Plaza SW., Washington, DC 20024.

PUBLIC COMMENTS INVITED: You are asked to comment on any aspect of this
information collection, including (a) Whether the proposed collection
of information is necessary for FAA's performance; (b) the accuracy of
the estimated burden; (c) ways for FAA to enhance the quality, utility
and clarity of the information collection; and (d) ways that the burden
could be minimized without reducing the quality of the collected
information. The agency will summarize and/or include your comments in
the request for OMB's clearance of this information collection.

FOR FURTHER INFORMATION CONTACT: Ronda Thompson at<PHONE_NUMBER>, or
by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    OMB Control Number: 2120-0570.
    Title: Certificated Training Centers--Simulator Rule.
    Form Numbers: None.
    Type of Review: Renewal of an information collection.
    Background: 14 CFR 142.73 requires that training centers maintain
records for a period of one year to show trainee qualifications for
training, testing, or checking, training attempts, training checking,
and testing results, and for one year following termination of
employment the qualification of instructors and evaluators providing
those services. The information is maintained by the certificate holder
and subject to review by aviation safety inspectors (operations),
designated to provide surveillance to training centers to ensure
compliance with airman training, testing, and certification
requirements specified in other parts of the 14 CFR.
    Respondents: Approximately 113 training centers and associated
satellite facilities.
    Frequency: Information is collected on occasion.
    Estimated Average Burden per Response: 1,177.6 hours.
    Estimated Total Annual Burden: 126,092 hours.

    Issued in Washington, DC on January 5, 2016.
Ronda Thompson,
FAA Information Collection Clearance Officer, Performance, Policy, and
Records Management Branch, ASP-110.
[FR Doc. 2016-316 Filed 1-8-16; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 87, Number 125 (Thursday, June 30, 2022)]
[Rules and Regulations]
[Pages 38998-39000]
[FR Doc No: 2022-14044]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0544]
RIN 1625-AA00

Safety Zone; Fireworks Display, Delaware River, Philadelphia, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone for
waters of Delaware River near Pleasant Hill Park in Philadelphia, PA,
for a fireworks display. The safety zone is needed to protect
personnel, vessels, and the marine environment from potential hazards
created by a fireworks display. Entry of vessels or persons into this
zone is prohibited unless specifically authorized by the Captain of the
Port (COTP) Delaware Bay.

DATES: This rule is effective from 9 p.m. through 10 p.m. on July 4,
2022.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0544 in the search box and click ``Search.'' Next, in the Document
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Petty Officer Jennifer Padilla, Sector Delaware Bay,
Waterways Management Division, U.S. Coast Guard; telephone (215) 271-
4814, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable and contrary to
the public interest to do so. There is insufficient time to allow for a
reasonable comment period prior to the event. The rule must be in force
by July 4, 2022. We are taking immediate action to ensure the safety of
spectators and the general public from hazards associated with the
fireworks display. Hazards include accidental discharge of fireworks,
dangerous projectiles, and falling hot embers or other debris.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable and contrary to the public interest.
The rule needs to be in place by July 4, 2022, to mitigate the
potential safety hazards associated with a fireworks display in this
location.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231). The Captain of the Port, Delaware
Bay (COTP) has determined that potential hazards associated with the
fireworks to be used in this July 4, 2022 display will be a safety
concern for anyone within a 300-yard radius of the barge. The purpose
of this rule is to ensure safety of vessels and the navigable waters in
the safety zone before, during, and after the scheduled event.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone of the Delaware River
near Pleasant Hill Park in Philadelphia, PA, during a fireworks display
from a barge. The event is scheduled to take place between 9 p.m. and
10 p.m. on July 4, 2022. The safety zone will extend 300 yards around
the barge, which will be anchored at approximate position latitude
40[deg]2'22.54'' N longitude 074[deg]59'22.03'' W. The duration of the
zone is intended to protect personnel, vessels, and the marine
environment in these navigable waters during the fireworks display. No
vessel or person will be permitted to enter the safety zone without
obtaining permission from the COTP or a designated representative.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, this
rule has not been reviewed by the Office of Management and Budget
(OMB).
    This regulatory action determination is based on (1) although
persons and vessels may not enter, transit through, anchor in, or
remain within the safety zone without authorization from the

COTP Delaware Bay or a designated representative, they may operate in
the surrounding area during the enforcement period; (2) persons and
vessels will still be able to enter, transit through, anchor in, or
remain within the regulated area if authorized by the COTP Delaware
Bay; and (3) the Coast Guard will provide advance notification of the
safety zone to the local maritime community by Local Notice to Mariners
and Broadcast Notice to Mariners.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

E. Unfunded Mandates Reform Act

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

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves a
temporary safety zone that prohibits persons and vessels from entering,
transiting through, anchoring in, or remaining within a limited area on
the navigable water in the Delaware River during a fireworks display
lasting approximately one hour. It is categorically excluded from
further review under paragraph L60a of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental
Consideration supporting this determination is available in the docket.
For instructions on locating the docket, see the ADDRESSES section of
this preamble.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.2.

0
2. Add Sec.  165.T05-05 to read as follows:

Sec.  165.T05-0544   Safety Zone; Fireworks, Delaware River,
Philadelphia, PA.

    (a) Location. The following area is a safety zone: All waters of
Delaware River near Pleasant Hill Park in Philadelphia, PA within 300
yards of the fireworks barge anchored in approximate position latitude
40[deg]2'22.54'' N longitude 074[deg]59'22.03'' W. These coordinates
are based on the 1984 World Geodetic System (WGS 84).
    (b) Definitions. As used in this section, designated representative
means a Coast Guard Patrol Commander, including a Coast Guard coxswain,
petty officer, or other officer operating a Coast Guard vessel and a
Federal, State, and local officer designated by or assisting the
Captain of the Port Delaware Bay (COTP) in the enforcement of the
safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this

section unless authorized by the COTP or the COTP's designated
representative.
    (2) To seek permission to enter or remain in the zone, contact the
COTP or the COTP's representative via VHF-FM channel 16 or 215-271-
4807. Those in the safety zone must comply with all lawful orders or
directions given to them by the COTP or the COTP's designated
representative.
    (3) No vessel may take on bunkers or conduct lightering operations
within the safety zone during its enforcement period.
    (4) This section applies to all vessels except those engaged in law
enforcement, aids to navigation servicing, and emergency response
operations.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the safety zone by Federal, State, and local
agencies.
    (e) Enforcement period. This zone will be enforced from
approximately, but no earlier than, 9 p.m. to approximately, but no
later than, 10 p.m. on July 4, 2022.

    Dated: June 27, 2022.
Jonathan D. Theel,
Captain, U.S. Coast Guard Captain of the Port Delaware Bay.
[FR Doc. 2022-14044 Filed 6-29-22; 8:45 am]
BILLING CODE 9110-04-P