[Federal Register Volume 87, Number 106 (Thursday, June 2, 2022)]
[Notices]
[Pages 33558-33565]
[FR Doc No: 2022-11785]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94989; File No. SR-NASDAQ-2022-027]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing of Proposed Rule Change, as Modified by Amendment No.
1, To Modify Certain Pricing Limitations for Companies Listing in
Connection With a Direct Listing With a Capital Raise

May 26, 2022.
    On March 21, 2022, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to allow companies to modify certain pricing
limitations for companies listing in connection with a Direct Listing
with a Capital Raise in which the company will sell shares itself in
the opening auction on the first day of trading on Nasdaq. The proposed
rule change was published for comment in the Federal Register on April
8, 2022.\3\ On May 19, 2022, pursuant to Section 19(b)(2) of the
Act,\4\ the Commission designated a longer period within which to
either approve or disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ The Commission has received no comments on the proposed rule
change.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 94592 (April 4,
2022), 87 FR 20905 (April 8, 2022).
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 94947 (May 19,
2022), 87 FR 31915 (May 25, 2022). The Commission designated July 7,
2022, as the date by which it should approve, disapprove, or
institute proceedings to determine whether to disapprove the
proposed rule change.
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    On May 23, 2022, the Exchange filed Amendment No. 1 to the proposed
rule change, which superseded the proposed rule change as originally
filed. Amendment No. 1 to the proposed rule change is described in
Items I and II below, which Items have been prepared by the Exchange.
The Commission is publishing this notice to solicit comments on the
proposed rule change, as modified by Amendment No. 1, from interested
persons.

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to modify certain pricing limitations for
companies listing in connection with a Direct Listing with a Capital
Raise in which the company will sell shares itself in the opening
auction on the first day of trading on Nasdaq. This Amendment No. 1
supersedes the original filing in its entirety.
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Nasdaq is filing this amendment to SR-NASDAQ-2022-027 \6\ in order
to: (i) Clarify Nasdaq's view of the applicability of Securities Act
Rule 430A and mechanics of complying with the disclosures required
under federal securities laws by a company listing in connection with a
Direct Listing with a Capital Raise in circumstances where the actual
price calculated by the Cross is outside of the price range established
by the issuer in its effective registration statement; (ii) specify
that if the company's certification to Nasdaq that

the company does not expect that offering price above the price range
would materially change the company's previous disclosure in its
effective registration statement includes an upside limit, Nasdaq will
not execute the cross if it results in the offering price above such
limit; and (iii) make minor technical changes to improve the structure,
clarity and readability of the proposed rules. This amendment
supersedes and replaces the Initial Proposal in its entirety.
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    \6\ Securities Exchange Act Release No. 94592 (April 4, 2022),
84 FR 20905 (April 8, 2022) (the ``Initial Proposal'').
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    In 2021, Nasdaq adopted Listing Rule IM-5315-2 to permit a company
to list in connection with a primary offering in which the company will
sell shares itself in the opening auction on the first day of trading
on the Exchange (a ``Direct Listing with a Capital Raise''); \7\
created a new order type (the ``CDL Order''), which is used during the
Nasdaq Halt Cross (the ``Cross'') for the shares offered by the company
in a Direct Listing with a Capital Raise; and established requirements
for disseminating information, establishing the opening price and
initiating trading through the Cross in a Direct Listing with a Capital
Raise.\8\ For a Direct Listing with a Capital Raise, Nasdaq rules
currently require that the actual price calculated by the Cross be at
or above the lowest price and at or below the highest price of the
price range established by the issuer in its effective registration
statement (the ``Pricing Range Limitation'').
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    \7\ A Direct Listing with a Capital Raise includes situations
where either: (i) Only the company itself is selling shares in the
opening auction on the first day of trading; or (ii) the company is
selling shares and selling shareholders may also sell shares in such
opening auction.
    \8\ See Securities Exchange Act Release No. 91947 (May 19,
2021), 86 FR 28169 (May 25, 2021) (the ``Approval Order'').
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    Nasdaq now proposes to modify the Pricing Range Limitation \9\ such
that, provided other requirements are satisfied, a Direct Listing with
a Capital Raise can also be executed in the Cross at a price that is at
or above the price that is as low as 20% below the lowest price in the
price range established by the issuer in its effective registration
statement; \10\ or at a price above the highest price of such price
range. Specifically, to execute at a price outside of the price range,
the company's registration statement must contain a sensitivity
analysis explaining how the company's plans would change if the actual
proceeds from the offering were less than or exceeded the amount
assumed in such price range and the company has publicly disclosed and
certified to Nasdaq that the company does not expect that such price
would materially change the company's previous disclosure in its
effective registration statement. Nasdaq also proposes to make related
conforming changes.
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    \9\ On February 24, 2022, the Commission issued an order
disapproving a similar proposal by Nasdaq. Securities Exchange Act
Release No. 94311 (February 24, 2022), 87 FR 11780 (March 2, 2022)
(the ``Disapproval Order''). Nasdaq believes that this proposal
addresses the issues raised by the Commission in the Disapproval
Order.
    \10\ References in this proposal to the price range established
by the issuer in its effective registration statement are to the
price range disclosed in the prospectus in such registration
statement. Separately, as explained in more details below, Nasdaq
proposes to prescribe that the 20% threshold below the lowest price
in the price range will be calculated based on the maximum offering
price set forth in the registration fee table, consistent with the
Instruction to paragraph (a) of Securities Act Rule 430A.
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Current Direct Listing With a Capital Raise Requirements
    Currently, a Direct Listing with a Capital Raise must begin trading
on Nasdaq following the initial pricing through the Cross, which is
described in Rules 4120(c)(9) and 4753.\11\
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    \11\ See Listing Rule IM-5315-2.
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    Currently, in addition to pricing within the Pricing Range
Limitation,\12\ Rule 4120(c)(9) requires that in the case of a Direct
Listing with a Capital Raise, for purposes of releasing securities for
trading on the first day of listing, Nasdaq, in consultation with the
financial advisor to the issuer, will make the determination of whether
the security is ready to trade. In addition, under Rule 4120(c)(9)(B)
Nasdaq will release the security for trading only if all market orders
will be executed in the Cross. If there is insufficient buy interest to
satisfy the CDL Order and all other market orders, or if the Pricing
Range Limitation is not satisfied, the Cross would not proceed and such
security would not begin trading. In such event, because the Cross
cannot be conducted, the Exchange would postpone and reschedule the
offering and notify market participants via a Trader Update that the
Direct Listing with a Capital Raise scheduled for that date has been
cancelled and any orders for that security that have been entered on
the Exchange would be cancelled back to the entering firms.\13\
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    \12\ See Rule 4120(c)(9)(B).
    \13\ Nasdaq will postpone and reschedule the offering only if
either or both such conditions are not met.
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Proposed Change to Rule 4120(c)(9)
    While many companies are interested in alternatives to traditional
IPOs, based on conversations with companies and their advisors Nasdaq
believes that there may be a reluctance to use the existing Direct
Listing with a Capital Raise rules because of concerns about the
Pricing Range Limitation.
    One potential benefit of a Direct Listing with a Capital Raise as
an alternative to a traditional IPO is that it could maximize the
chances of more efficient price discovery of the initial public sale of
securities for issuers and investors. Unlike an IPO where the offering
price is informed by underwriter engagement with potential investors to
gauge interest in the offering, but ultimately decided through
negotiations between the issuer and the underwriters for the offering,
in a Direct Listing with a Capital Raise the initial sale price is
determined based on market interest and the matching of buy and sell
orders in an auction open to all market participants. In that regard,
in the Approval Order the Commission stated that:

    The opening auction in a Direct Listing with a Capital Raise
provides for a different price discovery method for IPOs which may
reduce the spread between the IPO price and subsequent market
trades, a potential benefit to existing and potential investors. In
this way, the proposed rule change may result in additional
investment opportunities while providing companies more options for
becoming publicly traded.\14\
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    \14\ See Approval Order, 86 FR at 28177.

    A successful initial public offering of shares requires sufficient
investor interest. If an offering cannot be completed due to lack of
investor interest, there is likely to be a substantial amount of
negative publicity for the company and the offering may be delayed or
cancelled. The Pricing Range Limitation imposed on a Direct Listing
with a Capital Raise (but not on a traditional IPO) increases the
probability of such a failed offering because the offering cannot
proceed without some delay not only for the lack of investor interest,
but also if investor interest is greater than the company and its
advisors anticipated. In the Approval Order, the Commission noted a
frequent academic observation of traditional firm commitment
underwritten offerings that the IPO price, established through
negotiation between the underwriters and the issuer, is often lower
than the price that the issuer could have obtained for the securities,
based on a comparison of the IPO price to the closing price on the
first day of trading.\15\ Nasdaq believes that the price range in a
company's effective registration statement for a Direct Listing with a
Capital Raise would similarly be determined by the company and its
advisors and, therefore, there

may be instances of offerings where the price determined by the Nasdaq
opening auction will exceed the highest price of the price range in the
company's effective registration statement.
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    \15\ See Approval Order, footnote 91.
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    As explained above, under the existing rule a security subject to a
Direct Listing with a Capital Raise cannot be released for trading by
Nasdaq if the actual price calculated by the Cross is above the highest
price of the price range established by the issuer in its effective
registration statement. In this case, Nasdaq would have to cancel or
postpone the offering until the company amends its effective
registration statement. At a minimum, such a delay exposes the company
to market risk of changing investor sentiment in the event of an
adverse market event. In addition, as explained above, the
determination of the public offering price of a traditional IPO is not
subject to limitations similar to the Pricing Range Limitation for a
Direct Listing with a Capital Raise, which, in Nasdaq's view, could
make companies reluctant to use this alternative method of going public
despite its expected potential benefits. This reluctance could result
in denying investors and companies the benefits of this different price
discovery method.
    Accordingly, Nasdaq proposes to modify the Pricing Range Limitation
such that in the case of the Direct Listing with a Capital Raise, a
security could be released for trading by Nasdaq if the actual price at
which the Cross would occur is as much as 20% below the lowest price of
the price range established by the issuer in its effective registration
statement. In addition, a security could be released for trading by
Nasdaq if the actual price at which the Cross would occur was above the
highest price in the price range established by the issuer in its
effective registration statement.\16\ In such cases (whether lower or
higher than the price range) the company will be required to specify
the quantity of shares registered in its registration statement, as
permitted by Securities Act Rule 457,\17\ and that registration
statement will be required to contain a sensitivity analysis (the
company must also certify to Nasdaq in that regard) explaining how the
company's plans would change if the actual proceeds from the offering
are less than or exceed the amount assumed in the price range
established by the issuer in its effective registration statement.\18\
In addition, the company will be required to publicly disclose and
certify to Nasdaq prior to beginning of the Display Only Period that
the company does not expect that such offering price would materially
change the company's previous disclosure in its effective registration
statement. If the company's certification submitted to Nasdaq in that
regard includes an upside limit, as described below, Nasdaq will not
execute the Cross if it results in the offering price above such limit.
The goal of these requirements is to have disclosure that allows
investors to see how changes in share price ripple through critical
elements of the disclosure.\19\
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    \16\ In the prior proposal, Nasdaq proposed different
requirements based on whether the Cross would occur at a price that
was within 20% of the price range. See Disapproval Order. Nasdaq is
eliminating this proposed distinction and is proposing herein to
treat all prices outside of the price range the same.
    \17\ Securities Act Rule 457 permits issuers to register
securities either by specifying the quantity of shares registered,
pursuant to Rule 457(a), or the proposed maximum aggregate offering
amount. Nasdaq proposes to require that companies selling shares
through a Direct Listing with a Capital Raise will register
securities by specifying the quantity of shares registered and not a
maximum offering amount. See also Compliance & Disclosure
Interpretation of Securities Act Rules #227.03 at https://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm.
    \18\ The price range in the preliminary prospectus included in
the effective registration statement must be a bona fide price range
in accordance with Item 501(b)(3) of Regulation S-K.
    \19\ Sensitivity analysis disclosure may include but is not
limited to: Use of proceeds; balance sheet and capitalization; and
the company's liquidity position after the offering. An example of
this disclosure could be: We will apply the net proceeds from this
offering first to repay all borrowings under our credit facility and
then, to the extent of any proceeds remaining, to general corporate
purposes.
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    Nasdaq believes that this approach is consistent with SEC Rule 430A
and question 227.03 of the SEC Staff's Compliance and Disclosure
Interpretations, which generally allow a company to price a public
offering 20% outside of the disclosed price range without regard to the
materiality of the changes to the disclosure contained in the company's
registration statement. Nasdaq believes such guidance also allows
deviation above the price range beyond the 20% threshold if such change
or deviation does not materially change the previous disclosure.
Accordingly, Nasdaq believes that a company listing in connection with
a Direct Listing with a Capital Raise can specify the quantity of
shares registered, as permitted by Securities Act Rule 457, and, when
an auction prices outside of the disclosed price range, use a Rule
424(b) prospectus, rather than a post-effective amendment, when either
(i) the 20% threshold noted in the instructions to Rule 430A is not
exceeded, regardless of the materiality or non-materiality of resulting
changes to the registration statement disclosure that would be
contained in the Rule 424(b) prospectus, or (ii) when there is a
deviation above the price range beyond the 20% threshold noted in the
instructions to Rule 430A if such deviation would not materially change
the previous disclosure, in each case assuming the number of shares
issued is not increased from the number of shares disclosed in the
prospectus. For purposes of this rule, the 20% threshold will be
calculated based on the maximum offering price set forth in the
registration fee table, consistent with the Instruction to paragraph
(a) of Securities Act Rule 430A.\20\
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    \20\ Nasdaq believes that applying additional protections
related to the disclosure requirements in the registration statement
and the certifications to Nasdaq, as described above, to all
instances where the Cross is executed outside the disclosed price
range addresses an issue the Commission raised in the Disapproval
Order. See footnote 5 above. For brevity, proposed rules define the
``Price Range'' as the price range established by the issuer in its
preliminary prospectus included in the effective registration
statement, including the maximum and the minimum prices of such
range; and ``DLCR Price Range'' as the price range that includes any
price that is below the Price Range and at or above the price that
is 20% below the lowest price of the Price Range, or is above the
highest price of the Price Range. If the company's certification
includes an upside limit, the DLCR Price Range is as defined in the
preceding sentence, but subject to the upper limit provided by the
Company in its certification.
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    Nasdaq notes that the Commission previously stated that while
Securities Act Rule 430A permits companies to omit specified price-
related information from the prospectus included in the registration
statement at the time of effectiveness, and later file the omitted
information with the Commission as specified in the rule, it neither
prohibits a company from conducting a registered offering at prices
beyond those that would permit a company to provide pricing information
through a Securities Act Rule 424(b) prospectus supplement nor absolves
any company relying on the rule from any liability for potentially
misleading disclosure under the federal securities laws.\21\
Accordingly, the burden of complying with the disclosures required
under federal securities laws, including providing any disclosure
necessary to avoid any material misstatements or omissions, remains
with the issuer. In that regard, Nasdaq believes that the Post-Pricing
Period, applicable in circumstances where the actual price calculated
by the Cross is outside of the price range established by the issuer in
its effective registration statement, as described below, provides the
Company an opportunity, prior to the completion of

the offering, to provide any necessary additional disclosures that are
dependent on the price of the offering, if any; and/or determine and
confirm to Nasdaq that no additional disclosures are required under
federal securities laws based on the actual price calculated by the
Cross.
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    \21\ Securities Exchange Act Release No. 93119 (September 24,
2021), 86 FR 54262 (September 30, 2021).
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    Nasdaq also proposes to adopt a new Price Volatility Constraint and
disseminate information about whether the Price Volatility Constraint
has been satisfied, which will indicate whether the security may be
ready to trade. Prior to releasing a security for trading, Nasdaq
allows a ``Pre-Launch Period'' of indeterminate length, during which
price discovery takes place. The Price Volatility Constraint requires
that the Current Reference Price has not deviated by 10% or more from
any Current Reference Price during the Pre-Launch Period within the
previous 10 minutes. The Pre-Launch Period will continue until at least
five minutes after the Price Volatility Constraint has been satisfied.
Nasdaq will also introduce the Near Execution Price which is the
Current Reference Price at the time the Price Volatility Constraint has
been satisfied; and set the Near Execution Time as such time. This
change will provide investors with notice that the Cross nears
execution and allows a period of at least five minutes for investors to
modify their orders, if needed, based on the Near Execution Price,
prior to the execution of the Cross and the pricing of the offering.
Further, to assure that the Near Execution Price is a meaningful
benchmark for investors, and that the offering price does not deviate
substantially from the Near Execution Price, Nasdaq proposes to
require, in addition to other the existing conditions stated in
proposed Rule 4120(c)(9)(B)(vii), that the Cross may execute only if
the actual price calculated by the Cross is no more than 10% below or
above the Near Execution Price (the ``10% Price Collar'').
    Nasdaq notes that imbalance between the buy and sell orders could
sometimes cause the Current Reference Price to fall outside the 10%
Price Collar after the Price Volatility Constraint has been satisfied.
Such price fluctuations could be temporary, and the Current Reference
Price may return to and remain within the 10% Price Collar. The price
fluctuation could also be lasting such that the Current Reference Price
remains outside the 10% Price Collar. Given this, Nasdaq proposes to
assess the Current Reference Price vis-[agrave]-vis the 10% Price
Collar 30 minutes after the Near Execution Time. If at that time the
Current Reference Price is outside the 10% Price Collar, all
requirements of the Pre-Launch Period shall reset and must be satisfied
again.\22\ Once the Price Volatility Constraint has been satisfied
anew, the Current Reference Price at such time will become the updated
Near Execution Price and such time will become the updated Near
Execution Time. This process will continue iteratively, if new resets
are triggered, until the Cross is executed, or the offering is
postponed.
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    \22\ For the avoidance of doubt, while the Price Volatility
Constraint cannot initially be satisfied sooner than ten minutes
after the beginning of the Pre-Launch Period, if it is subsequently
reset, the Price Volatility Constraint can be satisfied again in
less than ten minutes because it would look back at prior pricing
during the Pre-Launch Period (including pricing prior to the reset)
to determine if the Current Reference Price has deviated by 10% or
more from any Current Reference Price within the previous 10
minutes.
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    If the Current Reference Price 30 minutes after the Near Execution
Time is within the 10% Price Collar, price formation may continue
without limitations until Nasdaq, in consultation with the financial
advisor to the issuer, makes the determination that the security is
ready to trade (and certain existing conditions restated in proposed
Rule 4120(c)(9)(B)(vii) are met). However, if at any time 30 minutes
after the Near Execution Time the Current Reference Price is outside
the 10% Price Collar, all requirements of the Pre-Launch Period shall
reset and must be satisfied again, in the same manner as described in
the immediately preceding paragraph.
    Given that, as proposed, there may be a Direct Listing with a
Capital Raise that could price outside the price range of the company's
effective registration statement and that there may be no upside limit
above which the Cross could not proceed,\23\ Nasdaq proposes to enhance
price discovery transparency by providing readily available, real time
pricing information to investors. To that end Nasdaq will disseminate,
free of charge, the Current Reference Price on a public website, such
as Nasdaq.com, during the Pre-Launch Period and indicate whether the
Current Reference Price is within the price range established by the
issuer in its effective registration statement. Once the Price
Volatility Constraint has been satisfied, Nasdaq will also disseminate
the Near Execution Price, the Near Execution Time and the 30-minute
countdown from such time. The disclosure will indicate that the Near
Execution Price and the Near Execution Time may be reset, as described
above, if the security is not released for trading within 30 minutes of
the Near Execution Time and the Current Reference Price at such time
(or at any time thereafter) is more than 10% below or more than 10%
above the Near Execution Price.
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    \23\ If the company's certification submitted to Nasdaq pursuant
to proposed Listing Rule 4120(c)(9)(B)(vii)d.2. includes an upside
limit and the actual price calculated by the Cross exceeds such
limit, Nasdaq will postpone and reschedule the offering.
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    In this way, investors interested in participating in the opening
auction will be informed when volatility has settled to a range that
will allow the open to take place and they will be informed of the
price range at which the auction would take place. If the price moves
outside, and remains outside this range, 30 minutes after the original
range was set they will be informed of the new range and will have at
least five minutes to reevaluate their investment decision.\24\
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    \24\ Nasdaq believes that the introduction, as described above,
of the 10% Price Collar, the Near Execution Price, the Near
Execution Time, the 30-minute reset and the five minute prohibition
on executing the Cross after the Price Volatility Constraint has
been satisfied addresses concerns the Commission raised in the
Disapproval Order. See footnote 5 above. Specifically, in the
Disapproval Order, the Commission stated that, as previously
proposed, ``investors could be misled that the opening cross `nears
execution' and that the disseminated Current Reference Price will
likely be close to the opening auction price when, in fact, the
auction may not occur for a considerable time and the opening
auction price may differ substantially.'' As revised, the opening
auction price must remain within 10% of the price publicly announced
as the Near Execution Price for the auction to occur and investors
will have enhanced disclosure about the possibility that the Price
Volatility Constraint could be reset.
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    Nasdaq also proposes to prohibit market orders (other than by the
Company through its CDL Order) from the opening of a Direct Listing
with a Capital Raise. This will protect investors by assuring that
investors only purchase shares at a price at or better than the price
they affirmatively set, after having the opportunity to review the
Company's effective registration statement including the sensitivity
analysis describing how the Company will use any additional proceeds
raised. Accordingly, an investor participating in a Direct Listing with
a Capital Raise will make their initial investment decision prior to
the launch of the offering by setting the price in their limit order
above which they will not buy shares in the offering, but will also
have an opportunity to reevaluate their initial investment decision
during the price formation process of the Pre-Launch Period based on
the Near Execution Price. Under the proposed rule, such investor will
have at least five minutes once the Near Execution Price has been set
and before the offering may be priced by Nasdaq to modify their order,
if needed. As described above, all relevant price formation information

will be disseminated by Nasdaq on a public website in real time.
    In addition, to protect investors and assure that they are informed
about the attributes of a Direct Listing with a Capital Raise, Nasdaq
proposes to impose specific requirements on Nasdaq members with respect
to a Direct Listing with a Capital Raise. These rules will require
members to provide to a customer, before that customer places an order
to be executed in the Cross, a notice describing the mechanics of
pricing a security subject to a Direct Listing with a Capital Raise in
the Cross, including information regarding the location of the public
website where Nasdaq will disseminate the Current Reference Price.
    To assure that members have the necessary information to be
provided to their customers, Nasdaq proposes to distribute, at least
one business day prior to the commencement of trading of a security
listing in connection with a Direct Listing with a Capital Raise, an
information circular to its members that describes any special
characteristics of the offering, and Nasdaq's rules that apply to the
initial pricing through the mechanism outlined in Nasdaq Rule
4120(c)(9)(B) and Nasdaq Rule 4753 for the opening auction, including
information about the notice they must provide customers and other
Nasdaq requirements that:
     Members use reasonable diligence in regard to the opening
and maintenance of every account, to know (and retain) the essential
facts concerning every customer and concerning the authority of each
person acting on behalf of such customer; and
     members in recommending transactions for a security
subject to a Direct Listing with a Capital Raise have a reasonable
basis to believe that: (i) The recommendation is suitable for a
customer given reasonable inquiry concerning the customer's investment
objectives, financial situation, needs, and any other information known
by such members, and (ii) the customer can evaluate the special
characteristics, and is able to bear the financial risks, of an
investment in such security.
    These member requirements are intended to remind members of their
obligations to ``know their customers,'' increase transparency of the
pricing mechanisms of a Direct Listing with a Capital Raise, and help
assure that investors have sufficient price discovery information.
    In each instance of a Direct Listing with a Capital Raise, Nasdaq's
information circular \25\ will inform the market participants that the
auction could price up to 20% below the lowest price of the price range
in the company's effective registration statement and specify what that
price is. Nasdaq will also indicate in such circular whether or not
there is an upside limit above which the Cross could not proceed, based
on the company's certification, as described above. Nasdaq will also
remind the market participants that Nasdaq prohibits market orders
(other than by the Company) from the opening of a Direct Listing with a
Capital Raise.
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    \25\ The information circular is an industry wide free service
provided by Nasdaq.
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    To assure that the issuer has the ability, prior to the completion
of the offering, to provide any necessary additional disclosures that
are dependent on the price of the offering, Nasdaq proposes to
introduce to the operation of the Cross a brief Post-Pricing Period, in
circumstances where the actual price calculated by the Cross is outside
of the price range established by the issuer in its effective
registration statement. Specifically, in such circumstances, Nasdaq
will initiate a Post-Pricing Period following the calculation of the
actual price. During the Post-Pricing Period the issuer must confirm to
Nasdaq that no additional disclosures are required under federal
securities laws based on the actual price calculated by the Cross.
During the Post-Pricing Period no additional orders for the security
may be entered in the Cross and no existing orders in the Cross may be
modified. The security shall be released for trading immediately
following the Post-Pricing Period. If the Company cannot provide the
required confirmation, then Nasdaq will postpone and reschedule the
offering.
Proposed Conforming Changes to Listing Rule IM-5315-2
    Listing Rule IM-5315-2 allows a company that has not previously had
its common equity securities registered under the Act to list its
common equity securities on the Nasdaq Global Select Market at the time
of effectiveness of a registration statement pursuant to which the
company itself will sell shares in the opening auction on the first day
of trading on the Exchange.
    Listing Rule IM-5315-2 provides that in determining whether a
company listing in connection with a Direct Listing with a Capital
Raise satisfies the Market Value of Unrestricted Publicly Held Shares
\26\ for initial listing on the Nasdaq Global Select Market, the
Exchange will deem such company to have met the applicable requirement
if the amount of the company's Unrestricted Publicly Held Shares before
the offering along with the market value of the shares to be sold by
the company in the Exchange's opening auction in the Direct Listing
with a Capital Raise is at least $110 million (or $100 million, if the
company has stockholders' equity of at least $110 million).
---------------------------------------------------------------------------

    \26\ See Listing Rules 5005(a)(23) and 5005(a)(45).
---------------------------------------------------------------------------

    Listing Rule IM-5315-2 further provides that, for this purpose, the
Market Value of Unrestricted Publicly Held Shares will be calculated
using a price per share equal to the lowest price of the price range
disclosed by the issuer in its effective registration statement.
    Because Nasdaq proposes to allow the opening auction to price up to
20% below the lowest price of the price range established by the issuer
in its effective registration statement, Nasdaq proposes to make a
conforming change to Listing Rule IM-5315-2 to provide that the price
used to determine such company's compliance with the Market Value of
Unrestricted Publicly Held Shares is the price per share equal to the
price that is 20% below the lowest price of the price range disclosed
by the issuer in its effective registration statement. Nasdaq will
determine that the company has met the applicable bid price and market
capitalization requirements based on the same per share price. This
price is the minimum price at which the company could sell its shares
in the Direct Listing with a Capital Raise transaction and so assures
that the company will satisfy these requirements at any price at which
the auction successfully executes.
    Any company listing in connection with a Direct Listing with a
Capital Raise would continue to be subject to, and required to meet,
all other applicable initial listing requirements, including the
requirements to have the applicable number of shareholders and at least
1,250,000 Unrestricted Publicly Held Shares outstanding at the time of
initial listing, and the requirement to have a price per share of at
least $4.00 at the time of initial listing.\27\
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    \27\ See Listing Rules 5315(f)(1), (e)(1) and (2), respectively.
Rule 5315(f)(1) requires a security to have: (A) At least 550 total
holders and an average monthly trading volume over the prior 12
months of at least 1,100,000 shares per month; or (B) at least 2,200
total holders; or (C) a minimum of 450 round lot holders and at
least 50% of such round lot holders must each hold unrestricted
securities with a market value of at least $2,500.
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Proposed Conforming Changes to Rules 4753(a)(3)(A) and 4753(b)(2)
    Nasdaq proposes to amend Rules 4753(a)(3)(A) and 4753(b)(2) to
conform

the requirements for disseminating information and establishing the
opening price through the Cross in a Direct Listing with a Capital
Raise to the proposed amendment to allow the opening auction to price
as much as 20% below the lowest price of the price range established by
the issuer in its effective registration statement.
    Specifically, Nasdaq proposes changes to Rules 4753(a)(3)(A) and
4753(b)(2) to make adjustments to the calculation of the Current
Reference Price, which is disseminated in the Nasdaq Order Imbalance
Indicator, in the case of a Direct Listing with a Capital Raise and for
how the price at which the Cross will execute. These rules currently
provide that where there are multiple prices that would satisfy the
conditions for determining a price, the fourth tie-breaker for a Direct
Listing with a Capital Raise is the price that is closest to the lowest
price of the price range disclosed by the issuer in its effective
registration statement.\28\
---------------------------------------------------------------------------

    \28\ To illustrate: The bottom of the range is $10. More than
one price exists within the range under the previous set of tie-
breakers such that both $10.15 and $10.25, satisfy all other
requirements. The operation of the fourth tie-breaker will result in
the auction price of $10.15 because it is the price that is closest
to $10.
---------------------------------------------------------------------------

    To conform these rules to the modification of the Pricing Range
Limitation change, as described above, Nasdaq proposes to modify the
fourth tie-breaker for a Direct Listing with a Capital Raise, to use
the price closest to the price that is 20% below the lowest price of
the price range disclosed by the issuer in its effective registration
statement.\29\
---------------------------------------------------------------------------

    \29\ Note that using the price that is 20% below the lowest
price of the price range disclosed by the issuer in its effective
registration statement as a tie-breaker (rather than the price
representing the bottom of the range) does not change the outcome in
the example in footnote 25 above because $10.15 is the price that is
closest to either.
---------------------------------------------------------------------------

    Lastly, Nasdaq proposes to clarify several provisions of the
existing rules by restating the provisions of Rules 4120(c)(8)(A) and
(c)(9)(A) in a clear and direct manner without substantively changing
them. Specifically, Nasdaq proposes to clarify the mechanics of the
Cross by specifying that Nasdaq will initiate a 10-minute Display Only
Period only after the CDL Order had been entered. This clarification
simply states what is already implied by the rule because the Cross and
the offering may not proceed without the company's order to sell the
securities in a Direct Listing with a Capital Raise. Similarly, Nasdaq
proposes to clarify without changing the existing rule that Nasdaq
shall select price bands for purposes of applying the price validation
test in the Cross in connection with a Direct Listing with a Capital
Raise. Under the price validation test, the System compares the
Expected Price with the actual price calculated by the Cross to
ascertain that the difference, if any, is within the price bands.
Nasdaq shall select an upper price band and a lower price band. The
default for an upper and a lower price band is set at zero. If a
security does not pass the price validation test, Nasdaq may, but is
not required to, select different price bands before recommencing the
process to release the security for trading.\30\ Nasdaq also proposes
to clarify that the ``actual price,'' as the term is used in the rule,
is the Current Reference Price at the time the system applies the price
bands test.
---------------------------------------------------------------------------

    \30\ This function is provided by the underwriter in an IPO and
by a Financial Advisor in a Direct Listing. The Commission
previously approved Nasdaq performing this function. See Approval
Order.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\31\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\32\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest.
---------------------------------------------------------------------------

    \31\ 15 U.S.C. 78f(b).
    \32\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Nasdaq believes that the proposed amendment to modify the Pricing
Range Limitation is consistent with the protection of investors because
this approach is similar to the pricing of an IPO where an issuer is
permitted to price outside of the price range disclosed by the issuer
in its effective registration statement in accordance with the SEC's
Staff guidance, as described above.\33\ Specifically, Nasdaq believes
that a company listing in connection with a Direct Listing with a
Capital Raise can specify the quantity of shares registered, as
permitted by Securities Act Rule 457, and, when an auction prices
outside of the disclosed price range, use a Rule 424(b) prospectus,
rather than a post-effective amendment, when either (i) the 20%
threshold noted in the instructions to Rule 430A is not exceeded,
regardless of the materiality or non-materiality of resulting changes
to the registration statement disclosure that would be contained in the
Rule 424(b) prospectus, or (ii) when there is a deviation above the
price range beyond the 20% threshold noted in the instructions to Rule
430A if such deviation would not materially change the previous
disclosure, in each case assuming the number of shares issued is not
increased from the number of shares disclosed in the prospectus. As a
result, Nasdaq will allow the Cross to take place as low as 20% below
the lowest price of the price range disclosed by the issuer in its
effective registration statement, but no lower, and so this is the
minimum price at which the company could be listed. In addition, to
better inform investors and market participants, Nasdaq will issue an
industry wide circular to inform the participants that the auction
could price up to 20% below the lowest price of the price range in the
company's effective registration statement and specify what that price
is. Nasdaq will also indicate in such circular whether or not there is
an upside limit above which the Cross could not proceed, based on the
company's certification, as described above. Nasdaq will also remind
the market participants that Nasdaq prohibits market orders (other than
by the Company) from the opening of a Direct Listing with a Capital
Raise.
---------------------------------------------------------------------------

    \33\ In a recent speech, SEC Chair Gary Gensler emphasized that
an overarching principle of regulation is that like activities ought
to be treated alike. See https://www.sec.gov/news/speech/gensler-healthy-markets-association-conference-120921.
---------------------------------------------------------------------------

    To assure that the issuer has the ability, prior to the completion
of the offering, to provide any necessary additional disclosures that
are dependent on the price of the offering, Nasdaq proposes to
introduce to the operation of the Cross a brief Post-Pricing Period, in
circumstances where the actual price calculated by the Cross is at or
above the price that is 20% below the lowest price and below the lowest
price of the price range established by the issuer in its effective
registration statement; or is above the highest price of the price
range established by the issuer in its effective registration statement
(but below the upside limit in the company's certification submitted to
Nasdaq pursuant to proposed Listing Rule 4120(c)(9)(B)(vii)d.2., if
any). Specifically, in such circumstances, Nasdaq will initiate a Post-
Pricing Period following the calculation of the actual price. During
the Post-Pricing Period the issuer must confirm to Nasdaq that no
additional disclosures are required under federal securities laws based
on the actual price calculated by the Cross, with such confirmation
ending the Post-Pricing Period. During the Post-Pricing Period no
additional orders for the security

may be entered in the Cross and no existing orders in the Cross may be
modified. The security shall be released for trading immediately
following the Post-Pricing Period. If the Company cannot provide the
required confirmation, then Nasdaq will postpone and reschedule the
offering. Nasdaq believes that this modification is designed to promote
just and equitable principles of trade, to remove impediments to and
perfect the mechanism of a free and open market because it will help
assure that a company listing in connection with a Direct Listing with
a Capital Raise complies with the disclosure requirements under federal
securities laws and that investors receive all required information.
    Nasdaq believes that the proposal to allow a Direct Listing with a
Capital Raise to price above any price above the price range of the
company's effective registration statement is designed to promote just
and equitable principles of trade, to remove impediments to and perfect
the mechanism of a free and open market investors because this approach
is similar to that of pricing a traditional IPO. In addition, to
protect investors Nasdaq proposes to enhance price discovery
transparency by providing readily available, real time pricing
information to investors. To that end Nasdaq will disseminate, free of
charge, the Current Reference Price on a public website (such as
Nasdaq.com) during the Pre-Launch Period and indicate whether the
Current Reference Price is within the price range established by the
issuer in its effective registration statement.
    Nasdaq believes that the provision prohibiting market orders (other
than by the Company) from the opening of a Direct Listing with a
Capital Raise is designed to protect investors because this provision
will assure that investors only purchase shares at a price that is at,
or better than, the price they affirmatively set, after having the
opportunity to review the Company's effective registration statement
including the sensitivity analysis describing how the Company will use
any additional proceeds raised.
    Nasdaq also proposes to adopt a new Price Volatility Constraint and
disseminate information about whether the Price Volatility Constraint
has been satisfied, which will indicate whether the security may be
ready to trade. The Price Volatility Constraint requires that the
Current Reference Price has not deviated by 10% or more from any
Current Reference Price within the previous 10 minutes. The Pre-Launch
Period will continue until at least five minutes after the Price
Volatility Constraint has been satisfied. Nasdaq will also introduce
the Near Execution Price which is the Current Reference Price at the
time the Price Volatility Constraint has been satisfied; and set the
Near Execution Time at such time. This change will provide investors
with notice that the Cross nears execution and a period of at least
five minutes to modify their orders, if needed, based on the Near
Execution Price, prior to the execution of the Cross and the pricing of
the offering. Further, to help assure that the offering price does not
deviate substantially from the Near Execution Price, Nasdaq proposes to
require, in addition to other conditions described above, that the
Cross may execute only if the actual price calculated by the Cross is
within the 10% Price Collar. Nasdaq believes that these changes are
designed to protect investors and the public interest because an
investor participating in a Direct Listing with a Capital Raise will
make their initial investment decision prior to the launch of the
offering by setting the price in their limit order above which they
will not buy shares in the offering, but will also have an opportunity
to reevaluate their initial investment decision during the price
formation process of the Pre-Launch Period based on the Near Execution
Price. Under the proposed rule, such investor will have at least five
minutes once the Near Execution Price has been set and before the
offering may be priced by Nasdaq to modify their order, if needed.
While the auction may take longer than this five minute period to
complete, investors are protected during this time because the Price
Volatility Constraint will reset if the actual price calculated by the
Cross is more than 10% below or above the Near Execution Price. Once
the Price Volatility Constraint has been satisfied, Nasdaq proposes to
disseminate the Near Execution Price and the Near Execution Time on a
public website, such as Nasdaq.com.
    Nasdaq believes that the proposal to reset the Price Volatility
Constraint, the Near Execution Price and the Near Execution Time in the
circumstances described above is designed to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market investors because in certain circumstances an
imbalance between the buy and sell orders could sometimes cause the
Current Reference Price to fall outside the 10% Price Collar after the
Price Volatility Constraint has been satisfied. These provisions will
protect investors by increasing the information available to them in
connection with the price formation process during the opening auction.
    To protect investors and increase transparency, Nasdaq also
proposes to disseminate on a public website, such as Nasdaq.com, the
30-minute countdown from the Near Execution Time and indicate that the
Near Execution Price and the Near Execution Time may be reset, as
described above, if the security is not released for trading within 30
minutes of the Near Execution Time and the Current Reference Price at
such time (or at any time thereafter) is outside the 10% Price Collar.
    In addition, to protect investors and assure that they are informed
about the attributes of a Direct Listing with a Capital Raise, Nasdaq
proposes to impose specific requirements on Nasdaq members with respect
to a Direct Listing with a Capital Raise. These rules will require
members to provide to a customer, before that customer places an order
to be executed in the Cross, a notice describing the mechanics of
pricing a security subject to a Direct Listing with a Capital Raise in
the Cross, including information regarding the dissemination of the
Current Reference Price on a public website such as Nasdaq.com.
    To assure that members have the necessary information to be
provided to their customers, Nasdaq proposes to distribute, at least
one business day prior to the commencement of trading of a security
listing in connection with a Direct Listing with a Capital Raise, an
information circular to its members that describes any special
characteristics of the offering, and Nasdaq's rules that apply to the
initial pricing through the mechanism outlined in Nasdaq Rule
4120(c)(9)(B) and Nasdaq Rule 4753 for the opening auction, including
information about the notice they must provide customers and other
Nasdaq requirements that:
     Members use reasonable diligence in regard to the opening
and maintenance of every account, to know (and retain) the essential
facts concerning every customer and concerning the authority of each
person acting on behalf of such customer; and
     members in recommending transactions for a security
subject to a Direct Listing with a Capital Raise have a reasonable
basis to believe that: (i) The recommendation is suitable for a
customer given reasonable inquiry concerning the customer's investment
objectives, financial situation, needs, and any other information known
by such members, and (ii) the customer can evaluate the special
characteristics, and

is able to bear the financial risks, of an investment in such security.
    These member requirements are consistent with the protection of
investors because they are designed to remind members of its
obligations to ``know their customers,'' increase transparency of the
pricing mechanisms of a Direct Listing with a Capital Raise, and help
assure that investors have sufficient price discovery information.
    Nasdaq believes that the Commission Staff has already concluded
that pricing up to 20% below the lowest price and at a price above the
highest price of the price range in the company's effective
registration statement is appropriate for a company conducting an
initial public offering notwithstanding it being outside of the range
stated in an effective registration statement, and investors have
become familiar with this approach at least since the Commission Staff
last revised Compliance and Disclosure Interpretation 227.03 in January
2009.\34\ Allowing Direct Listings with a Capital Raise to similarly
price up to 20% below the lowest price and at a price above the highest
price of the price range in the company's effective registration
statement would be consistent with Chair Gensler's recent call to treat
``like cases alike.'' \35\
---------------------------------------------------------------------------

    \34\ https://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm.
    \35\ See https://www.sec.gov/news/speech/gensler-healthy-markets-association-conference-120921.
---------------------------------------------------------------------------

    Nasdaq believes that the proposed amendments to Listing Rule IM-
5315-2 and Rules 4753(a)(3)(A) and 4753(b)(2) to conform these rules to
the modification of the Pricing Range Limitation is consistent with the
protection of investors. These amendments would simply substitute
Nasdaq's reliance on the price equal to the lowest price of the price
range disclosed by the issuer in its effective registration statement
to the price that is 20% below such lowest price, making it more
difficult to meet the requirements. In the case of Listing Rule IM-
5315-2, a company listing in connection with a Direct Listing with a
Capital Raise would still need to meet all applicable initial listing
requirements based on the price that is 20% below the lowest price of
the price range disclosed by the issuer in its effective registration
statement. In the case of the Rules 4753(a)(3)(A) and 4753(b)(2) such
price, which is the minimum price at which the Cross will occur, will
serve as the fourth tie-breaker where there are multiple prices that
would satisfy the conditions for determining the auction price, as
described above. Nasdaq believes that this proposal to resolve a
potential tie among the prices that satisfy all other requirements in
the Cross, by choosing the price that is closest to the price that is
20% below the range, is consistent with Section 6(b)(5) of the Act
because it is designed to protect investors by providing them with the
most advantageous offering price among possible alternative prices.
    Nasdaq also believes that the proposal, by eliminating an
impediment to companies using a Direct Listing with a Capital Raise,
will help removing potential impediments to free and open markets
consistent with Section 6(b)(5) of the Exchange Act while also
supporting capital formation.
    Finally, Nasdaq believes that the proposal to clarify several
provisions of the existing rules without changing them is designed to
remove impediments to and perfect the mechanism of a free and open
market because such changes make the rules easier to understand and
apply without changing their substance.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The proposed amendments would
not impose any burden on competition, but would rather increase
competition. Nasdaq believes that allowing listing venues to improve
their rules enhances competition among exchanges. Nasdaq also believes
that this proposed change will give issuers interested in this pathway
to access the capital markets additional flexibility in becoming a
public company, and in that way promote competition among service
providers, such as underwriters and other advisors, to such companies.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NASDAQ-2022-027 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2022-027. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NASDAQ-2022-027, and should be submitted
on or before June 23, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\36\
---------------------------------------------------------------------------

    \36\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-11785 Filed 6-1-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 55 (Monday, March 23, 2015)]
[Notices]
[Pages 15253-15255]
[FR Doc No: 2015-06549]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2015-0005]

Federal Advisory Council on Occupational Safety and Health
(FACOSH)

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Request for nominations.

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

SUMMARY: The Assistant Secretary of Labor for Occupational Safety and
Health invites interested individuals to submit nominations for
membership on FACOSH.

DATES: You must submit (postmarked, sent, transmitted, or received)
your nominations by May 15, 2015.

ADDRESSES: You may submit nominations and supporting materials using
one of the following methods:
    Electronically: You may submit nominations, including attachments,
electronically at http://www.regulations.gov, the federal eRulemaking
portal. Follow the online instructions for submitting nominations;
    Facsimile: If your nominations and supporting materials and
attachments do not exceed 10 pages, you may FAX them to the OSHA Docket
Office at<PHONE_NUMBER>;
    Mail, express delivery, hand delivery, messenger or courier
service: You may send nominations and supporting materials to the OSHA
Docket Office, Docket No. OSHA-2015-0005, Room N-2625, U.S. Department
of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone
(202) 693-2350 (TTY number<PHONE_NUMBER>). Deliveries by hand, express
mail, messenger, and courier service are accepted during the Department
of Labor's and OSHA Docket Office's normal business hours, 8:15 a.m.-
4:45 p.m., ET.
    Instructions: Your submissions and supporting materials must
include the agency name and docket number for this Federal Register
notice. Due to security-related procedures, submissions by regular mail
may experience significant delays. Please contact the OSHA Docket
Office for information about special security procedures for submitting
materials by mail, express delivery, hand delivery, and messenger or
courier service. For additional information on submitting nominations
and supporting materials, see the Supplementary Information section of
this notice. OSHA will post all submissions, including any personal
information you provide, without change on http://www.regulations.gov.
Therefore, OSHA cautions you about submitting personal information such
as Social Security numbers and birthdates.
    To read or download submissions in response to this Federal
Register notice, go to Docket No. OSHA-2015-0005, at http://www.regulations.gov. All documents in the docket are listed in the
index of that Web site; however, some documents (e.g., copyrighted
materials) are not publicly available to read or download there. All
submissions, including copyrighted

materials, are available for inspection at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT:
    For press inquiries: Mr. Francis Meilinger, OSHA, Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone<PHONE_NUMBER>; email
<EMAIL_ADDRESS>    For general information: Mr. Francis Yebesi, OSHA, Office of
Federal Agency Programs, Directorate of Enforcement Programs, Room N-
3622, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Assistant Secretary of OSHA invites
interested individuals to submit nominations for membership on FACOSH.
    Background. FACOSH is authorized to advise the Secretary of Labor
(Secretary) on all matters relating to the occupational safety and
health of federal employees (5 U.S.C. 7902; 29 U.S.C. 668, Executive
Order 12196, as amended). This includes providing advice on how to
reduce and keep to a minimum the number of injuries and illnesses in
the federal workforce, and how to encourage the establishment and
maintenance of effective occupational safety and health programs in
each federal agency.
    FACOSH membership. FACOSH is comprised of 16 members, 8 management
representatives and 8 representatives of labor organizations
representing federal employees, whom the Secretary appoints to
staggered terms of up to three years. The number of members the
Secretary will appoint to three-year terms beginning January 1, 2016,
includes:
     Two management representatives; and
     Three labor representatives.
    FACOSH members serve at the pleasure of the Secretary and may be
appointed to successive terms. FACOSH meets at least twice a year.
    The Department of Labor is committed to equal opportunity in the
workplace and seeks broad-based and diverse FACOSH membership. Any
interested federal agency, labor organization representing federal
workers, or individual(s) may nominate one or more qualified persons
for membership on FACOSH. Interested individuals also are invited and
encouraged to submit statements in support of particular nominees.
    Nomination requirements. Submission of nominations must include the
following information:
    1. The nominee's name, contact information and current employment;
    2. The nominee's resume or curriculum vitae, including prior
membership on FACOSH and other relevant organizations, associations and
committees;
    3. Category of membership (management, labor) that the nominee is
qualified to represent;
    4. A summary of the nominee's background, experience and
qualifications that address the nominee's suitability to serve on
FACOSH;
    5. Articles or other documents the nominee has authored that
indicate the nominee's knowledge, experience and expertise in
occupational safety and health, particularly as it pertains to the
federal workforce;
    6. A statement that the nominee is aware of the nomination, is
willing to regularly attend and participate in FACOSH meetings, and has
no apparent conflicts of interest that would preclude membership on
FACOSH; and
    7. A self-certification statement that in the past 10 years, the
nominee has not been convicted of a felony, or been imprisoned, been on
probation, or been on parole, for a felony; or is not currently under
charges for a felony.
    Member selection. The Secretary appoints FACOSH members based upon
criteria that include the nominee's level of responsibility for
occupational safety and health matters involving the federal workforce;
experience and competence in occupational safety and health; and
willingness and ability to regularly and fully participate in FACOSH
meetings. Federal agency management nominees who serve as their
agency's Designated Agency Safety and Health Official (DASHO), or at an
equivalent level of responsibility within their respective federal
agencies, are preferred as management members. Labor nominees who have
responsibilities for federal employee occupational safety and health
matters within their respective labor organizations are preferred as
labor members.
    The information received through the nomination process, along with
other relevant sources of information, will assist the Secretary in
making appointments to FACOSH. In selecting FACOSH members, the
Secretary will consider individuals nominated in response to this
Federal Register notice, as well as other qualified individuals. OSHA
will publish a list of the new FACOSH members in the Federal Register.
    OSHA will consider any nomination submitted in response to this
notice for the vacancies that occur on January 1, 2016. In addition,
OSHA will consider the nominations received by May 1, 2015, for any
vacancy that may occur during 2015 and for member positions that open
January 1, 2017, provided the information the nominee submitted
continues to remain current and accurate. OSHA believes that rolling
over nominations for future consideration will make it easier for
interested individuals to be considered for membership on FACOSH. This
process also will provide OSHA with a broad base of nominations for
ensuring that FACOSH membership is fairly balanced as the Federal
Advisory Committee Act requires (5 U.S.C. App.2, Section (5)(b)(2); 41
CFR 102-3.30(c)). OSHA will continue to request nominations as
vacancies occur, but nominees whose information is current and accurate
will not need to resubmit a nomination.

Public Participation

    Instructions for submitting nominations. Interested individuals may
submit nominations and supplemental materials using one of the methods
listed in the ADDRESSES section. All nominations, attachments and other
materials must identify the agency/labor organization name and the
docket number for this Federal Register notice. You may supplement
electronic nominations by uploading document files electronically. If,
instead, you wish to submit additional materials in reference to an
electronic or FAX submission, you must submit them to the OSHA Docket
Office (see ADDRESSES section). The additional material must clearly
identify your electronic or FAX submission by name and docket number so
that the materials can be attached to your submission.
    Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of nominations. For
information about security procedures concerning the submission of
materials by mail, hand, express delivery, messenger or courier
service, please contact the OSHA Docket Office (see ADDRESSES section).
    All submissions in response to this Federal Register notice are
posted without change at http://www.regulations.gov. Therefore, OSHA
cautions interested parties about submitting personal information, such
as Social Security numbers and birthdates. Guidance on submitting
nominations and materials in response to this Federal Register notice
is available at http://www.regulations.gov and from the OSHA Docket
Office.
    Access to docket and other materials. To read or download
nominations and

additional materials submitted in response to this Federal Register
notice, go to Docket No. OSHA-2015-0005 at http://www.regulations.gov.
All submissions are listed in the index of that docket; however, some
documents (e.g., copyrighted materials) are not publicly available to
read or download through that Web page. All submissions, including
copyrighted materials, are available for inspection at the OSHA Docket
Office. Contact the OSHA Docket Office for information about materials
not available through http://www.regulations.gov, and for assistance in
using the internet to locate submissions.
    Electronic copies of this Federal Register notice are available at
http://www.regulations.gov. This document, as well as news releases and
other relevant information, also is available at OSHA's Web page at
http://www.osha.gov.

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, directed the preparation of this notice
under the authority granted by 5 U.S.C. 7902, 5 U.S.C. App. 2, 29
U.S.C. 668, Executive Order 12196 as amended, 41 CFR part 102-3, and
Secretary of Labor's Order 1-2012 (77 FR 3912 (1/25/2012)).

David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2015-06549 Filed 3-20-15; 8:45 am]
 BILLING CODE 4510-26-P