[Federal Register Volume 80, Number 36 (Tuesday, February 24, 2015)]
[Rules and Regulations]
[Pages 9596-9600]
[FR Doc No: 2015-03740]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 40

[Docket No. RM14-12-000; Order No. 804]

Demand and Energy Data Reliability Standard

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: The Commission approves Demand and Energy Data Reliability
Standard MOD-031-1 developed by the North American Electric Reliability
Corporation (NERC), which the Commission has certified as the Electric
Reliability Organization responsible for developing and enforcing
mandatory Reliability Standards. In addition, the Commission directs
NERC to develop a clarifying modification to the Reliability Standard.

DATES: This rule will become effective April 27, 2015.

FOR FURTHER INFORMATION CONTACT:
Susan Morris (Technical Information), Office of Electric Reliability,
Division of Reliability Standards and Security, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426,
Telephone:<PHONE_NUMBER><EMAIL_ADDRESS>Robert T. Stroh (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, Telephone:<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    1. Pursuant to section 215(d) of the Federal Power Act (FPA),\1\
the Commission approves Reliability Standard MOD-031-1 (Demand and
Energy Data) developed by the North American Electric Reliability
Corporation (NERC), the Commission-certified Electric Reliability
Organization (ERO). Reliability Standard MOD-031-1 provides authority
for planners and operators to collect demand, energy and related data
to support reliability studies and assessments. In addition, the
Commission approves NERC's proposed definitions for the terms Demand
Side Management and Total Internal Demand. The Commission also approves
the associated implementation plan, violation risk factors and
violation severity levels, and NERC's proposed retirement of the
currently-effective Reliability Standards MOD-016-1.1, MOD-017-0.1,
MOD-018-0, MOD-019-0.1, and MOD-021-1 (Existing MOD C Standards).
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    \1\ 16 U.S.C. 824o(d) (2012).
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    2. Further, pursuant to section 215(d)(5) of the FPA, the
Commission directs NERC to (1) develop a modification to Reliability
Standard MOD-031-1 to clarify certain obligations to provide data to
the Regional Entity and (2) consider the compliance obligations of an
applicable entity upon receipt of a data request that seeks
confidential information.

I. Background

    3. Section 215 of the FPA requires a Commission-certified ERO to
develop mandatory and enforceable Reliability Standards, which are
subject to Commission review and approval. Once approved, the
Reliability Standards are enforced by the ERO, subject to Commission
oversight, or by the Commission independently. In 2006, NERC submitted
the initial version of Reliability Standards MOD-016-1.1, MOD-017-0.1,
MOD-018-0, MOD-019-0.1, MOD-020-0, and MOD-021-1. The Existing MOD C
Standards were designed to help ensure that historical and forecasted
demand and energy data are available for past event validation and
future system assessment. In particular, the Existing MOD C Standards,
along with Reliability Standard MOD-020-0, require the collection of
actual and forecast demand data necessary to analyze the resource needs
to serve peak demand while maintaining a sufficient margin to address
operating events. In Order No. 693, the Commission approved the
Existing MOD C Standards and Reliability Standard MOD-020-0.\2\ In
addition, the Commission directed NERC to develop certain modifications
to the standards.
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    \2\ Mandatory Reliability Standards for the Bulk-Power System,
Order No. 693, FERC Stats. & Regs. ] 31,242, at PP 1223, 1235, order
on reh'g, Order No. 693-A, 120 FERC ] 61,053 (2007).
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II. NERC Petition and NOPR

    4. In its petition, NERC stated that Reliability Standard MOD-031-1
will provide planners and operators access to actual and forecast
demand and energy data, as well as other related information, needed to
perform resource adequacy studies.\3\ NERC explained that the proposed
Reliability Standard also supports the continued development of the
reliability assessments prepared by NERC. NERC stated that the proposed
Reliability Standard improves the Existing MOD C Standards by: (1)
Streamlining them to clarify data collection requirements; (2)
including transmission planners as applicable entities that must report
demand and energy data; (3) requiring applicable entities to report
weather normalized annual peak hour actual demand data from the
previous year to allow for meaningful comparison with forecasted
values; and (4) requiring applicable entities to provide an explanation
of how their forecasts compare to actual prior year data.\4\
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    \3\ NERC Petition at 3. The proposed MOD Reliability Standard is
not attached to the Final Rule. The complete text of the Reliability
Standard is available on the Commission's eLibrary document
retrieval system in Docket No. RM14-12 and is posted on the ERO's
Web site, available at: http://www.nerc.com.
    \4\ NERC Petition at 4.
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    5. Reliability Standard MOD-031-1 contains four requirements.
Requirement R1 provides that each planning coordinator or balancing
authority that identifies a need for the collection of demand and
energy data must develop and issue a data request for such data to the
relevant entities in its area. The requirement mandates that the data
request identify: (i) The entities responsible for providing the data;
(ii) the data to be provided by each entity; and (iii) the schedule for
providing the data. Requirement R2 obligates the entities identified in
a Requirement R1 data request to provide the requested data to their
planning coordinator or balancing authority. Requirement R3 requires
that the planning coordinator or the balancing authority provide the
data collected under Requirement R2 to their Regional Entity, if
requested, to

facilitate NERC's development of reliability assessments. Requirement
R4 requires entities to share their demand and energy data with any
applicable entity that demonstrates a reliability need for such
data.\5\
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    \5\ Id. at 5.
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    6. On September 18, 2014, the Commission issued a Notice of
Proposed Rulemaking (NOPR) proposing to approve Reliability Standard
MOD-031-1 as just, reasonable, not unduly discriminatory or
preferential, and in the public interest. The Commission also requested
comments on the collection of demand and energy data. Specifically, the
Commission sought comments on: (1) The Commission's understanding that
while a planning coordinator or balancing authority may collect demand
and energy forecast data under a tariff or other arrangement, the
planning coordinator or balancing authority always retains the option
to seek the necessary data through a Requirement R1 data request if,
for example, the data are not forthcoming through other means; and (2)
whether a planning coordinator or balancing authority that receives
data through alternative mechanisms remains obligated to provide such
data (i.e., within the scope of Requirement R1) to a Regional Entity
upon request, as set forth in Requirement R3.

Comments

    7. Comments on the NOPR were submitted by NERC, Edison Electric
Institute (EEI), ISO New England, Inc. (ISO New England), International
Transmission Company d/b/a ITCTransmission, Michigan Electric
Transmission Company, LLC, ITC Midwest LLC, and ITC Great Plains, LLC
(collectively, ``ITC Companies''), PacifiCorp, and Idaho Power Company
(Idaho Power).
    8. NERC, EEI, ISO New England support the Commission's proposed
approval of MOD-031-1, and ITC Companies ``does not object'' to the
standard. NERC and other commenters provide responses to the
Commission's questions regarding the collection of demand and energy
data, as discussed below.
    9. NERC, EEI, Idaho Power, and ISO New England confirm the
Commission's understanding that the planning coordinator or balancing
authority retains the option to seek the necessary data through a
Requirement R1 data request. NERC states that the Reliability Standard
provides planning coordinators and balancing authorities the authority
to issue data requests to compel applicable entities to provide the
demand and energy data necessary to conduct reliability assessments.
According to NERC, the Reliability Standard does not require planning
coordinators and balancing authorities to issue such data requests if
they have alternative means of obtaining or developing that data but
planning coordinators and balancing authorities may always use the
authority provided by the Reliability Standard as a backstop to ensure
they obtain complete and accurate data.
    10. With respect to the issue of whether a planning coordinator or
balancing authority that receives data through alternative mechanisms
remains obligated to provide such data to a Regional Entity upon
request, NERC states that the intent of Requirement R3 was to require
all planning coordinators and balancing authorities to provide the
necessary demand and energy data to their respective Regional Entities
to support the ERO development of seasonal and long-term reliability
assessments. NERC commits to modifying the language of Requirement R3
in its standard development process to clarify that planning
coordinators and balancing authorities must provide their demand and
energy data to their Regional Entity, upon request, whether that data
is collected pursuant to the proposed Reliability Standard or through
alternative arrangements.
    11. With regard to the Commission's question about the obligations
of a planning coordinator or balancing authority to share data gathered
or obtained through alternative mechanisms, EEI comments that there is
no obligation to require a planning coordinator or balancing authority
to share such data in a similar manner as required by Requirement R3.
EEI adds that it is not aware of any reason that might motivate
independent system operators (ISOs) or regional transmission
organizations (RTOs) (in their role as planning coordinators or
balancing authorities) to withhold such information from the Regional
Entity. PacifiCorp agrees with EEI on this issue and favors a finding
that Requirement R3 should not apply if the planning coordinator or
balancing authority receives data through alternative means.
    12. In contrast, Idaho Power and ISO New England assert that a
planning coordinator or balancing authority that receives data within
the scope of Requirement R1 through alternative mechanisms (as opposed
to a data request) remains obligated to provide the data to a Regional
Entity upon request pursuant to Requirement R3.
    13. EEI also requests that the Commission clarify potential
conflicts between a transmission provider's obligation to provide data
under Reliability Standard MOD-031-1 and its confidentiality
obligations under the Open Access Transmission Tariff (OATT) or other
confidentiality or nondisclosure restrictions. ITC Companies raises a
concern with the inclusion of transmission planners as entities from
whom the types of data specified may be requested because, according to
ITC Companies, many transmission planners have delegated the collection
of data to the ISO or RTO in which they are located.

III. Discussion

    14. Pursuant to section 215(d)(2) of the FPA, the Commission
approves Reliability Standard MOD-031-1 as just, reasonable, not unduly
discriminatory or preferential, and in the public interest. We also
approve the new and modified glossary definitions, implementation plan,
associated violation risk factors and violation severity levels as well
as the retirement of the Existing MOD C Standards. Reliability Standard
MOD-031-1 should continue to provide planners and operators access to
complete and accurate demand and energy data to allow such entities to
conduct their own resource adequacy analyses to serve peak demand. As
noted above, NERC, EEI, and ISO New England support approval of MOD-
031-1, and no commenters oppose approval. ITC Companies ``does not
object'' to the standard and ``concurs with the Commission that MOD-
031-1 will meaningfully enhance the ability of transmission planners
and operators to conduct resource adequacy analyses and plan for peak
load conditions.'' \6\
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    \6\ ITC Comments at 2.
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    15. We also find that the Reliability Standard should provide for
consistent documentation and information sharing practices for demand
and energy data, and promotes efficient planning practices across the
industry and supports the identification of needed system
reinforcements. Further, the Commission finds that Reliability Standard
MOD-031-1 improves the Existing MOD C Standards by providing applicable
entities the authority to collect demand and energy data, and related
information, to support reliability assessments and also includes
transmission planners as applicable entities that must report demand
and energy data.
    16. Further, as discussed below, we direct NERC to (1) develop a

modification to Reliability Standard MOD-031-1 to clarify certain
obligations to provide data to the Regional Entity and (2) consider the
compliance obligations of an applicable entity upon receipt of a data
request that seeks confidential information.

A. Demand and Energy Data Issues Raised in the NOPR

    17. As discussed above, the Commission sought comment in the NOPR
on several questions in connection with the collection of demand and
energy data. With regard to the responsive comments on the NOPR
question regarding the collection of data through mechanisms other than
data requests, the Commission accepts the explanation provided by NERC
and other commenters that, while a planning coordinator or balancing
authority may collect demand and energy forecast data under a tariff or
other arrangement, the planning coordinator or balancing authority
always retains the option to seek the necessary data through a
Requirement R1 data request if, for example, the data are not
forthcoming through other means.
    18. Further, the Commission raised a concern in the NOPR regarding
whether a planning coordinator or balancing authority that receives
data ``through alternative mechanisms'' remains obligated to provide
such data (i.e., within the scope of Requirement R1) to a Regional
Entity upon request, as set forth in Requirement R3. We accept NERC's
explanation that the ``intent of Requirement R3 was to require all
planning coordinators and balancing authorities to provide the
necessary demand and energy data to their respective Regional Entities
to support the [ERO]'s development of seasonal and long-term
reliability assessments,'' although ``a strict reading'' of Requirement
R3 ``indicates that it applies only to data collected pursuant to a
data request issued under this Reliability Standard.'' \7\ NERC has the
statutory responsibility to conduct periodic assessments of the
reliability and adequacy of the Bulk-Power System, and we believe that
it is incumbent on users, owners and operators subject to compliance
with section 215 of the FPA to provide the necessary data to support
such assessments.\8\ Accordingly, pursuant to section 215(d)(5) of the
FPA and consistent with NERC's comments,\9\ we direct NERC to develop a
modification to MOD-031-1 through the standards development process to
clarify that planning coordinators and balancing authorities must
provide demand and energy data upon request of a Regional Entity, as
necessary to support NERC's development of seasonal and long-term
reliability assessments.
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    \7\ NERC Comments at 2-3. See also EEI Comments at 3.
    \8\ 16 U.S.C. 824o(g).
    \9\ See NERC Comments at 3.
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B. Other Issues

    19. EEI seeks Commission clarification of a ``potential conflict''
between a transmission provider's obligation to provide data under MOD-
031-1 and the transmission provider's confidentiality obligations under
an OATT or other confidentiality restrictions.\10\ Under MOD-031-1,
Requirement R2, an applicable entity must provide data requested by its
planning coordinator or balancing authority in accordance with the
Requirement R1 data request provision. EEI notes that, under
Requirement R4, an entity has 45 days to respond to a written request
for data. Further, under Requirement 4.1, if an entity does not provide
requested data because, inter alia, ``providing the data would conflict
with the Applicable Entity's confidentiality, regulatory or security
requirements, the Applicable Entity shall, within 30 calendar days of
the written request, provide a written response to the requesting
entity specifying the data that is not being provided and on what
basis.'' According to EEI, it is unclear ``at what point a transmission
provider's obligation to `cooperate' with the other Party in the
formation of a confidentiality agreement or protective order ends, and
its obligation as an Applicable Entity to disclose the requested
information under either Requirements R1 or R4 begins.'' \11\
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    \10\ See EEI Comments at 3-4 (citing Article 22.1.10 of the pro
forma large generation interconnection agreement).
    \11\ EEI Comments at 5.
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    20. Requirement R1 specifies the planning coordinator or balancing
authority shall issue a ``data request to applicable entities in its
area.'' Applicable entities that are subject to providing data pursuant
to Requirement R2 are transmission planners, balancing authorities,
load-serving entities, and distribution providers. The transmission
providers discussed by EEI may, in fact, be registered as one or more
of the NERC functional entities that make up the applicable entities
list in MOD-031-1. Requirement R4 includes provisions for an applicable
entity to follow if a conflict arises. On this basis, the Reliability
Standard appears to be clear. However, EEI's concern that MOD-031-1 is
not clear regarding the compliance obligations of an applicable entity
when required to provide data to a balancing authority or planning
coordinator pursuant to a data request under the standard may have
merit. Further, it may be possible in some circumstances, depending on
the terms of the confidentiality provision at play, to provide data
pursuant to a non-disclosure agreement. Therefore, rather than
attempting to provide the clarification requested by EEI, the
Commission directs NERC to consider EEI's concern regarding the
compliance obligations of an applicable entity upon receipt of a data
request that seeks confidential information in the standard development
process when it addresses the directive to clarify that planning
coordinators and balancing authorities must provide demand and energy
data upon request of a Regional Entity.\12\
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    \12\ See Order No. 693 FERC Stats. & Regs. ] 31,242, at P 188.
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    21. ITC Companies raises a concern with the inclusion of
transmission planners as listed entities from whom the types of data
specified may be requested because, according to ITC Companies, many
transmission planners have delegated the collection of data to the ISO
or RTO in which they are located. ITC Companies requests that the
Commission recognize that agreements governing the reporting of demand
and energy data such as those existing between ITC's operating
subsidiaries and the ISOs/RTOs in which each operates are common, and
thus provide that a transmission planner having such an arrangement
with an ISO/RTO will be in compliance with data requests it receives
under the Requirements R1 and R4. While the language of particular
agreements is beyond the scope of the immediate proceeding, we agree
with ITC Companies that Requirement R1 provides the flexibility to
collect energy data through alternative mechanisms.\13\
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    \13\ See NERC Petition at 22, 23.
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IV. Information Collection Statement

    22. The Paperwork Reduction Act (PRA) \14\ requires each federal
agency to seek and obtain Office of Management and Budget (OMB)
approval before undertaking a collection of information directed to ten
or more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements imposed by agency rules.\15\ Upon approval of a
collection(s) of information, OMB will

assign an OMB control number and an expiration date. Respondents
subject to the filing requirements of an agency rule will not be
penalized for failing to respond to these collections of information
unless the collections of information display a valid OMB control
number.
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    \14\ 44 U.S.C. 3501-3520.
    \15\ See 5 CFR 1320.10.
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    23. Through issuance of this Final Rule, the Commission approves
Reliability Standard MOD-031-1. As stated above, the Existing MOD C
Standards were approved by the Commission in Order No. 693. All
information collection estimates associated with the collection of
demand and energy data and subsequent retention were assessed in Order
No. 693 and will not be repeated here. The Reliability Standard expands
the actual data to be submitted in two areas: (1) Weather normalized
annual peak hour actual demand for the prior calendar year if this
demand varies due to weather-related conditions (e.g., temperature,
humidity or wind speed); and (2) summaries detailed in Requirement R1,
Subparts 1.5.4 and 1.5.5. The additional data and summaries will
increase reporting and preparation time for some applicable entities.
Most entities already normalize their actual demand data based on
weather. However, some entities may have a one-time cost of determining
the method to ``weather normalize'' the actual demand data.
Accordingly, the information collection costs will consist of an annual
cost for all applicable entities and, for a small percentage,
additional costs will occur during the first year of implementation.
    Public Reporting Burden: Reliability Standard MOD-031-1 requires
each ``Applicable Entity'' to provide the data requested by its
planning coordinator or balancing authority in accordance with the data
request issued pursuant to Requirement R1.\16\ Our estimate below
regarding the number of respondents is based on the NERC Compliance
Registry as of July 31, 2014. According to the NERC Compliance
Registry, NERC has registered 478 distribution providers, 469 load-
serving entities, 179 transmission planners and 107 balancing
authorities. However, under NERC's compliance registration program,
entities may be registered for multiple functions, so these numbers
incorporate some double counting. The total number of unique entities
that may be identified as a data provider (e.g. applicable entity) in
accordance with Reliability Standard MOD-031-1 will be approximately
561 entities registered in the United States as a distribution
provider, load-serving entity, transmission planner and/or balancing
authority.\17\ The Commission estimates the annual reporting burden and
cost as follows:
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    \16\ Requirement R1, Subpart 1.1 refers to ``Applicable
Entities'' as the list of transmission planners, balancing
authorities, load-serving entities and distribution providers that
are required to provide the data.
    \17\ This estimate assumes all of the unique entities will be
identified to provide demand and energy data.
    \18\ The estimated hourly costs (salary plus benefits) are based
on Bureau of Labor Statistics (BLS) information (available at http://bls.gov/oes/current/naics3_221000.htm#17-0000) for an electrical
engineer ($59.62/hour).
    \19\ This value represents the number of entities that have not
already determined a method to weather normalize annual peak actual
demand data. We estimate approximately 5 percent of the applicable
entities fall into this category.
    \20\ DP = distribution provider, LSE = load-serving entity, TP =
transmission planner and BA = balancing authority, are functions the
applicable entities perform in conjunction or individually. We
estimate the total number of unique entities performing one or more
of these functions to be 561.

                                                                 RM14-12-000 Final Rule
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                                                             Annual number                                          Total annual burden      Cost per
                                       Number and type of    of responses    Total number   Average burden & cost   hours & total annual    respondent
                                          respondents       per respondent   of responses        per response               cost               \18\
                                     (1)..................             (2)     (1)*(2)=(3)  (4)..................  (3)*(4)=(5)..........         (5)/(1)
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(One-time) Determine method to       28 \19\ (DP, LSE, TP                1              28  240 hrs. & $14,309...  6,720 hours &                 $14,309
 weather normalize annual peak hour   and/or BA) \20\.                                                              $400,646.
 actual demand.
(On-going) Develop summary in        561 (DP, LSE, TP and/               1             561  8 hrs. & $477........  4,488 hours &                     477
 accordance w/Requirement R1,         or BA).                                                                       $267,575.
 Subparts 1.5.4 and 1.5.5.
                                                           ---------------------------------------------------------------------------------------------
    Total..........................  .....................  ..............             589  .....................  11,208 hours &         ..............
                                                                                $668,221.
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    Title: FERC-725L, Mandatory Reliability Standards for the Bulk-
Power System: MOD Reliability Standards.
    Action: Final rule.
    OMB Control No: 1902-0261.
    Respondents: Businesses or other for-profit institutions; not-for-
profit institutions.
    Frequency of Responses: One-time and ongoing.
    Necessity of the Information: Reliability Standard MOD-031-1
implements the Congressional mandate of the Energy Policy Act of 2005
to develop mandatory and enforceable Reliability Standards to better
ensure the reliability of the nation's Bulk-Power System. Specifically,
the purpose of the Reliability Standard is to provide authority for
applicable entities to collect demand, energy and related data to
support reliability studies and assessments and to enumerate the
responsibilities and obligations of requestors and respondents of that
data.
    Internal Review: The Commission has reviewed the requirements
pertaining to the Reliability Standard for the Bulk-Power System and
determined that the approved requirements are necessary to meet the
statutory provisions of the Energy Policy Act of 2005. These
requirements conform to the Commission's plan for efficient

information collection, communication and management within the energy
industry. The Commission has assured itself, by means of internal
review, that there is specific, objective support for the burden
estimates associated with the information requirements.
    Interested persons may obtain information on the reporting
requirements by contacting: Federal Energy Regulatory Commission, 888
First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office
of the Executive Director, email<EMAIL_ADDRESS>Phone: (202)
502-8663, fax:<PHONE_NUMBER>]. Comments on the requirements of this
rule may also be sent to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503
[Attention: Desk Officer for the Federal Energy Regulatory Commission].
For security reasons, comments should be sent by email to OMB at
<EMAIL_ADDRESS>Comments submitted to OMB should refer to
FERC-725L and OMB Control No. 1902-0261.

V. Regulatory Flexibility Act Certification

    24. The Regulatory Flexibility Act of 1980 (RFA) \21\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
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    \21\ 5 U.S.C. 601-612.
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    25. The Small Business Administration (SBA) revised its size
standard (effective January 22, 2014) for electric utilities from a
standard based on megawatt hours to a standard based on the number of
employees, including affiliates.\22\ Under SBA's new size standards,
transmission owners and transmission operators likely come under the
following category and associated size threshold: Electric bulk power
transmission and control, at 500 employees.\23\ The Reliability
Standard applies to 561 entities. Comparison of the applicable entities
with the Commission's small business data indicates that approximately
249 are small entities.\24\ Of these, the Commission estimates that
approximately five percent, or twelve of these small entities expect to
be affected by the new requirements of the proposed Reliability
Standard. The Commission estimates that the small entities that will be
affected by Reliability Standard MOD-031-1 will incur one-time
compliance costs ranging up to $14,309 (i.e. the cost of determining
the method of weather normalizing annual peak hour actual demand), plus
the annual development of summary narratives in accordance with
Requirement R1, Subparts 1.5.4 and 1.5.5, resulting in costs of $477.
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    \22\ SBA Final Rule on ``Small Business Size Standards:
Utilities,'' 78 FR 77,343 (Dec. 23, 2013).
    \23\ 13 CFR 121.201, Sector 22, Utilities.
    \24\ The Small Business Administration sets the threshold for
what constitutes a small business. Public utilities may fall under
one of several different categories, each with a size threshold
based on the company's number of employees, including affiliates,
the parent company, and subsidiaries. The possible categories for
the applicable entities have a size threshold ranging from 250
employees to 1,000 employees. For the analysis in this proposed
rule, we are using the 1,000 employee threshold for each applicable
entity type.
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    26. Accordingly, the Commission certifies that the Reliability
Standard will not have a significant economic impact on a substantial
number of small entities.

VI. Environmental Analysis

    27. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\25\ The
Commission has categorically excluded certain actions from this
requirement as not having a significant effect on the human
environment. Included in the exclusion are rules that are clarifying,
corrective, or procedural or that do not substantially change the
effect of the regulations being amended.\26\ The actions proposed
herein fall within this categorical exclusion in the Commission's
regulations.
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    \25\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \26\ 18 CFR 380.4(a)(2)(ii).
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VII. Document Availability

    28. 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) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A,
Washington, DC 20426.
    29. 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.
    30. User assistance is available for eLibrary and the Commission's
Web site during normal business hours from the Commission's Online
Support at<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
VIII. Effective Date and Congressional Notification

    31. These regulations are effective April 27, 2015. The Commission
has determined, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not
``major rule'' as defined in section 351 of the Small Business
Regulatory Enforcement Fairness Act of 1996.

    By the Commission.

    Issued: February 19, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015-03740 Filed 2-23-15; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 87, Number 249 (Thursday, December 29, 2022)]
[Rules and Regulations]
[Pages 80069-80071]
[FR Doc No: 2022-28371]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0993]
RIN 1625-AA00

Safety Zone; Corpus Christi Shipping Channel, Corpus Christi, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all navigable waters of the Corpus Christi Shipping Channel in a zone
defined by the following coordinates; 27[deg]50'31.28'' N,
97[deg]04'17.23'' W; 27[deg]50'31.73'' N, 97[deg]04'15.44'' W;
27[deg]50'29.06'' N, 97[deg]04'16.61'' W; 27[deg]50'29.32'' N,
97[deg]04'14.82'' W. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards created by
pipelines that will be removed from the floor of the Corpus Christi
Shipping Channel. Entry of vessels or persons into this zone is
prohibited unless specifically authorized by the Captain of the Port
Sector Corpus Christi or a designated representative.

DATES: This rule is effective without actual notice from 8 p.m. on
December 29, 2022 through 4 a.m. on December 30, 2022. For the purposes
of enforcement, actual notice will be used from December 27, 2022 until
December 29, 2022.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander Anthony Garofalo, Sector Corpus
Christi Waterways Management Division, U.S. Coast Guard; telephone 361-
939-5130, 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. We must
establish this safety zone immediately to protect personnel, vessels,
and the marine environment from potential hazards created by pipeline
removal operations and lack sufficient time to provide a reasonable
comment period and then to consider those comments before issuing the
rule.
    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 contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with pipeline removal operations in the Corpus Christi Shipping
Channel.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Corpus Christi (COTP) has
determined that potential hazards associated with pipeline removal
operations occurring from 8 p.m. on December 27, 2022 through 4 a.m. on
December 30, 2022 will be a safety concern for anyone within the Corpus
Christi Shipping Channel in a zone defined by the following
coordinates; 27[deg]50'31.28'' N, 97[deg]04'17.23'' W;
27[deg]50'31.73'' N, 97[deg]04'15.44'' W; 27[deg]50'29.06'' N,
97[deg]04'16.61'' W; 27[deg]50'29.32'' N, 97[deg]04'14.82'' W. The
purpose of this rule is to ensure safety of vessels and persons on
these navigable waters in the safety zone while pipelines are removed
from the floor of the Corpus Christi Shipping Channel.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 8 p.m. on
December 27, 2022 through 4 a.m. on December 30, 2022 and will be
subject to enforcement from 8 p.m. to 4 a.m. of the next day, each day.
The safety zone will encompass all navigable waters of the Corpus
Christi Shipping Channel in a zone defined by the following
coordinates; 27[deg]50'31.28'' N, 97[deg]04'17.23'' W;
27[deg]50'31.73'' N, 97[deg]04'15.44'' W; 27[deg]50'29.06'' N,
97[deg]04'16.61'' W; 27[deg]50'29.32'' N, 97[deg]04'14.82'' W. The
pipeline will be removed along the floor of the Corpus

Christi Shipping Channel. No vessel or person is permitted to enter the
temporary safety zone during the effective period without obtaining
permission from the COTP or a designated representative, who may be
contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-
0450. The Coast Guard will issue Broadcast Notices to Mariners, Local
Notices to Mariners, and/or Safety Marine Information Broadcasts as
appropriate.

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 the size,
location, and duration of the safety zone. The temporary safety zone
will be enforced for a short period of only 8 hours each day. The rule
does not completely restrict the traffic within a waterway and allows
mariners to request permission to enter the zone.

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
temporary 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
contact 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

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, 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 establishment of a temporary safety
zone for navigable waters of the Corpus Christi Shipping Channel in a
zone defined by the following coordinates; 27[deg]50'31.28'' N,
97[deg]04'17.23'' W; 27[deg]50'31.73'' N, 97[deg]04'15.44'' W;
27[deg]50'29.06'' N, 97[deg]04'16.61'' W; 27[deg]50'29.32'' N,
97[deg]04'14.82'' W. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards created by
pipeline that will be removed from the floor of the Corpus Christi
Shipping Channel. It is categorically excluded from further review
under paragraph L60(c) Appendix A, Table 1 of DHS Instruction Manual
023-01-001-01, Rev. 1.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact 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, 70124; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T08-0993 to read as follows:

Sec.  165.T08-0993  Safety Zone; Corpus Christi Shipping Channel,
Corpus Christi, TX.

    (a) Location. The following area is a safety zone: all navigable
waters of the Corpus Christi Shipping Channel in a zone defined by the
following coordinates; 27[deg]50'31.28'' N, 97[deg]04'17.23'' W;
27[deg]50'31.73'' N, 97[deg]04'15.44'' W; 27[deg]50'29.06'' N,
97[deg]04'16.61'' W; 27[deg]50'29.32'' N, 97[deg]04'14.82'' W.
    (b) Effective period. This section is effective from 8 p.m. on
December 27, 2022 through 4 a.m. on December 30, 2022. This section is
subject to enforcement from 8 p.m. to 4 a.m. of the next day, each day.
    (c) Regulations. (1) According to the general regulations in Sec.
165.23 of this part, entry into the temporary safety zone described in
paragraph (a) of this section is prohibited unless authorized by the
Captain of the Port Sector Corpus Christi (COTP) or a designated
representative. They may be contacted on Channel 16 VHF-FM (156.8 MHz)
or by telephone at<PHONE_NUMBER>.
    (2) If permission is granted, all persons and vessels shall comply
with the instructions of the COTP or designated representative.
    (d) Information broadcasts. The COTP or a designated representative
will inform the public of the enforcement times and date for this
safety zone through Broadcast Notices to Mariners, Local Notices to
Mariners, and/or Safety Marine Information Broadcasts as appropriate.

    Dated: December 19, 2022.
J.B. Gunning,
Captain, U.S. Coast Guard, Captain of the Port Sector Corpus Christi.
[FR Doc. 2022-28371 Filed 12-23-22; 4:15 pm]
BILLING CODE 9110-04-P


[Federal Register: August 31, 2006 (Volume 71, Number 169)]
[Notices]
[Page 51879-51882]
[DOCID:fr31au06-105]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54360; File No. SR-NASD-2006-088]

Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing of Proposed Rule Change Relating to
Motions To Decide Claims Before a Hearing on the Merits

August 24, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
the National Association of Securities Dealers, Inc. (``NASD'' or
``Association''), through its wholly owned subsidiary, NASD Dispute
Resolution, Inc. (``NASD Dispute Resolution'') filed with the
Securities and Exchange Commission (``SEC'' or ``Commission'') on July
21, 2006, the proposed rule change as described in Items I, II, and III
below, which Items have been prepared by NASD Dispute Resolution. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    NASD is proposing new Rule 12504 and new Rule 13504 of the NASD
Code of Arbitration Procedure to address motions to decide claims
before a hearing on the merits (``dispositive motions''). Below is the
text of the proposed rule change. Proposed new language is Italic;
proposed deletions are in brackets.
* * * * *

12504. Motions To Decide Claims Before a Hearing on the Merits

    (a) Except as provided in Rule 12206, motions to decide a claim
before a hearing are discouraged and may only be granted in
extraordinary circumstances.
    (b) Motions under this rule must be made in writing. Unless the
parties agree or the panel determines otherwise, motions under this
rule must be served at least 60 days before a scheduled hearing, and
parties have 45 days to respond to the motion.
    (c) Motions under this rule will be decided by the full panel. The
panel may not grant a motion under this rule unless a prehearing
conference on the motion is held, or waived by the parties. Prehearing
conferences to consider motions under this rule will be tape-recorded.
    (d) The panel may issue sanctions under Rule 12212 if it determines
that a party filed a motion under this rule in bad faith.
* * * * *

13504. Motions To Decide Claims Before a Hearing on the Merits

    (a) Except as provided in Rule 13206, motions to decide a claim
before a hearing are discouraged and may only be granted in
extraordinary circumstances.
    (b) Motions under this rule must be made in writing. Unless the
parties agree or the panel determines otherwise, motions under this
rule must be served at least 60 days before a scheduled hearing, and
parties have 45 days to respond to the motion.
    (c) Motions under this rule will be decided by the full panel. The
panel may not grant a motion under this rule unless a prehearing
conference on the motion is held, or waived by the parties. Prehearing
conferences to consider motions under this rule will be tape-recorded.
    (d) The panel may issue sanctions under Rule 13212 if it determines
that a party filed a motion under this rule in bad faith.
* * * * *

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

    In its filing with the Commission, NASD 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. NASD 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
(a) Background
    NASD has filed a series of proposed rule changes with the SEC to
amend the NASD Code of Arbitration Procedure (``current Code''). The
proposed rule changes would revise the current Code language in
accordance with the SEC's Plain English initiative, codify current
practices, implement several substantive changes, and reorganize the
current Code into three separate procedural codes: one relating to
customer disputes (``Customer Code''), one relating to industry
disputes (``Industry Code''), and one relating to mediations
(``Mediation Code,'' and collectively with the Customer and Industry
Codes, the ``Code Rewrite''). Proposed Rules 12504 and 13504 initially
were proposed as part of the Code Rewrite.
    On June 23, 2005, the SEC published the Code Rewrite for comment in
the Federal Register. \3\ The SEC received 51 comment letters on the
Customer Code, one comment letter on the Industry Code, and one comment
letter on the Mediation Code.\4\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Rel. No. 51856 (Jun. 15, 2005);
70 FR 36442 (Jun. 23, 2005) (Customer Code); Securities Exchange Act
Rel. No. 51857 (Jun 15, 2005); 70 FR 36430 (Jun. 23, 2005) (Industry
Code); and Securities Exchange Act Rel. No. 51855 (Jun. 15, 2005);
70 FR 36440 (Jun. 23, 2005); (Mediation Code).
    \4\ The SEC approved the Mediation Code on October 31, 2005, and
it became effective on January 30, 2006. See Securities Exchange Act
Rel. No. 52705 (Oct. 31, 2005); 70 FR 67525 (Nov. 7, 2005) (SR-NASD-
2004-013).
---------------------------------------------------------------------------

    On May 4, 2006, NASD filed a Response to Comments and Amendment No.
5 (``Amendment'') to address the commenters' concerns with the Customer
Code.\5\ The Amendment summarized the commenters' concerns and, where
appropriate, responded to their concerns by proposing to clarify the
meaning of some of the rules and to explain arbitration procedure under
some of the proposed rules. The Amendment also requested that the
proposal be approved on an accelerated basis.
---------------------------------------------------------------------------

    \5\ See Reorganization and Revision of NASD Rules Relating to
Customer Disputes (visited Aug. 2, 2006); http://www.nasd.com/RulesRegulation/RuleFilings/2003RuleFilings/NASDW_009306.
 A similar

amendment was filed to address the comment letter on the Industry
Code. See Reorganization and Revision of NASD Arbitration Rules
Relating to Industry Disputes (visited Aug. 2, 2006) http://www.nasd.com/RulesRegulation/RuleFilings/2004RuleFilings/NASDW_009295
.

    While none of the 51 commenters addressed specifically the
Industry Code, many of the issues raised apply to the Industry Code,
because the two codes contain similar rules and procedures. Thus,
based on these comments, NASD made similar changes to the Industry
Code, where applicable.
---------------------------------------------------------------------------

    NASD posted the Amendment on its Web site shortly after it was
filed. As of July 19, 2006, the SEC had received 105 comment letters
opposing some aspects of the Amendment, and asking the SEC to deny
NASD's request for accelerated approval.\6\ Several of the 105 comment
letters objected to the Amendment because it proposed to include in the
narrative section of the rule filing additional guidance relating to
proposed rules 12504 and 13504, including examples of ``extraordinary
circumstances'' in which a dispositive motion could be granted.
---------------------------------------------------------------------------

    \6\ See Comments on NASD File No. SR-NASD-2003-158, Notice of
Filing of Proposed Rule Change and Amendments Nos. 1, 2, 3, and 4
Thereto to Amend NASD Arbitration Rules for Customer Disputes
(visited Jul. 19, 2006) http://www.sec.gov/rules/sro/nasd/nasd2003158.shtml
.

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

(b) Comments Received on the Description of Proposed Rules 12504 and
13504

    NASD states that, based on some of the 51 comment letters received
on the Customer Code \7\ and meetings with various constituents, it
initially believed that the term ``extraordinary circumstances'' needed
to be explained to clarify when Proposed Rules 12504 and 13504 would
apply, and to provide more guidance to arbitrators on the standards to
use when deciding a dispositive motion. NASD states that it raised this
issue with its public and industry constituents and suggested that they
develop language jointly to explain the term ``extraordinary
circumstances.'' NASD was unable to obtain consensus among its
constituents. Thus, NASD proposed to insert the following narrative
language in the Dispositive Motions section of the rule filing:
---------------------------------------------------------------------------

    \7\ The comment letter received on the Industry Code did not
address dispositive motions.

    For purposes of this rule, if a party demonstrates affirmatively
the legal defenses of, for example, accord and satisfaction,
arbitration and award, settlement and release, or the running of an
applicable statute of repose, the panel may consider these defenses
to be extraordinary circumstances. In such cases, the panel may
dismiss the arbitration claim before a hearing on the merits if the
panel finds that there are no material facts in dispute concerning
the defense raised, and there are no determinations of credibility
---------------------------------------------------------------------------
to be made concerning the evidence presented.

    The proposed narrative language has engendered substantial
controversy. Of the 105 comment letters received on the Amendment, 22
specifically opposed the proposed narrative language. In general, these
commenters contended that the proposed narrative language encourages,
rather than discourages, the making of dispositive motions. The
commenters also argued that the proposed language could increase
investors' costs in defending against these types of motions, and could
result in a loss of the major benefits of the arbitration process--cost
effectiveness and expediency.
    As noted, NASD has been unable to obtain a consensus among its
constituents as to what constitutes ``extraordinary circumstances'' for
purposes of Proposed Rules 12504 and 13504. Therefore, NASD is re-
filing the original text of Proposed Rules 12504 and 13504 and the
associated narrative language separately from the Customer and Industry
Codes, but without the above narrative language that was proposed in
the Amendment. NASD believes that addressing these provisions
separately will give the public additional time to provide its input
without delaying the Commission's review and final action on the
remaining provisions of the Customer and Industry Codes.

(c) Proposed Rules 12504 and 13504: Motions To Dismiss a Claim Before a
Hearing on the Merits

    One recurring question in NASD arbitrations is whether, and to what
extent, arbitrators should decide dispositive motions before a hearing
on the merits. In its Follow-up Report on Matters Relating to
Securities Arbitration, the General Accounting Office (``GAO'') noted
that while NASD's arbitration rules do not specifically provide for
dispositive motions, case law generally supports the authority of
arbitrators to grant motions to dismiss claims prior to the hearing on
the merits.\8\
---------------------------------------------------------------------------

    \8\ U.S. General Accounting Office, Follow-up Report on Matters
Relating to Securities Arbitration (April 11, 2003). GAO has since
been renamed Government Accountability Office.
---------------------------------------------------------------------------

    Generally, NASD believes that parties have the right to a hearing
in arbitration. However, NASD also acknowledges that in certain
extraordinary circumstances, it would be unfair to require a party to
proceed to a hearing. Thus, the proposed rules would:
     Provide that, except for motions relating to the
eligibility of claims under the current Code's six year time limit,
motions that would resolve a claim before a hearing on the merits are
discouraged, and may only be granted in extraordinary circumstances;
     Require that a prehearing conference before the full panel
must be held to discuss the motion before the panel could grant it; and

     Allow the panel to issue sanctions against a party for
making a dispositive motion in bad faith.
    NASD believes that this rule proposal, which was developed over
several years with input from industry and public members of the NAMC,
will provide necessary guidance to parties and arbitrators, and make
the administration of arbitrations more uniform and transparent. NASD
believes that the rule strikes the appropriate balance between allowing
the dismissal of claims in limited, extraordinary circumstances and
reinforcing the general principle that parties are entitled to a
hearing in arbitration.
(2) Statutory Basis
    NASD believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act, which requires, among other
things, that the Association's rules must be designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, and, in general, to protect investors
and the public interest. NASD believes that the proposed rules will
provide some guidelines for arbitrators and users of the forum
concerning dispositive motions practice and will, thereby, make
administration of arbitrations more uniform and transparent.

(B) Self-Regulatory Organization's Statement on Burden on Competition

    NASD does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.

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

    NASD did not solicit written comments. Comments received by the
Commission prior to this filing are discussed above.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. 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. In particular, the Commission
solicits comment on whether the proposed rule change provides for
arbitration procedures that are fair and consistent with the protection
of investors for the resolution of their disputes. In addition, the
Commission solicits comment on the questions included below.
    (A) Need for a Dispositive Motions Rule: NASD has stated that,
because the current Code provides no guidance with respect to whether
arbitrators have the authority to grant dispositive motions, arbitrator
decisions with respect to these motions lack uniformity. Should the
current Code, or the Customer and Industry Codes, if adopted, contain a
dispositive motions rule? Is the absence or presence of such a rule
detrimental to the arbitration process, and if so, how? Assuming that
arbitrator decisions with respect to dispositive motions lack
uniformity, are there ways, other than through the proposed rule, to
address this issue? Commenters are specifically invited to share
quantifiable costs and benefits that they believe may result should the
Commission approve or disapprove the proposed rules.
    (B) Proposed Rules: NASD believes that Proposed Rules 12504 and
13504 strike the appropriate balance between the parties' right to have
a hearing and the authority of arbitrators to dismiss claims in
limited, extraordinary circumstances. Do the proposed rules strike an
appropriate balance, or would they tend to favor one party over
another?
    (C) Explanatory Language Regarding ``Extraordinary Circumstances'':
In connection with Proposed Rules 12504 and 13504, as initially filed
with the Code Rewrite, some commenters stated that the absence of a
definition for ``extraordinary circumstances'' would promote, rather
than limit, abusive litigation tactics in arbitration.\9\ Others stated
that the ``extraordinary circumstances'' standard is too vague,\10\
and/or recommended that the term be defined or described in the Code
Rewrite.\11\ As described in Section II.A.1.b, above, NASD proposed in
Amendment No. 5 to provide explanatory language in the narrative
portion of the Code Rewrite filing to clarify the rule language. Since
Amendment No. 5 was filed, some commenters have opposed providing
examples of ``extraordinary circumstances'' if the rule is
approved.\12\ Should additional guidance be provided for what
constitutes ``extraordinary circumstances''? Why or why not? If so,
what type of additional guidance would be beneficial? Should a term
other than ``extraordinary circumstances'' be used? If so, what would
be a more useful term?
---------------------------------------------------------------------------

    \9\ See, e.g., Letter from Jeff Sonn, Esq., Sonn & Erez (Jul.
14, 2005) (``Sonn letter''); Letter from Steven A. Stolle, Rohde &
Van Kampen PLLC (Jul. 8, 2005); Letter from Rebecca Davis, Esquire,
Tate, Lazarini & Beall, PLC (Jul. 14, 2005); and Letter from Mark A.
Tepper (Jul. 14, 2005).
    \10\  See, e.g., Letter from Barry D. Estell (May 15, 2006) and
Letter from Daniel A. Ball, Selzer Gurvitch Rabin & Obecny, Chtd.
(July 14, 2005).
    \11\ See, e.g., Letter from Tim Canning, Law Offices of Timothy
A. Canning (Jul. 14, 2005); Letter from Scott C. Ilgenfritz (Jul.
14, 2005); Letter from Richard A. Karoly, Vice President and Senior
Corporate Counsel, Charles Schwab & Co., Inc. (Jul. 14, 2005); and
Sonn Letter.
    \12\ See, e.g., Letter from David E. Robbins, Kaufmann, Feiner,
Yamin, Gildin & Robbins LLP (May 29, 2006) and Letter from Robert S.
Banks, Jr., Public Investors Arbitration Bar Association (May 26,
2006).
---------------------------------------------------------------------------

    (D) Standard of Pleading: Some commenters have expressed concerns
about dispositive motions being granted when statements of claim do not
meet pleading requirements under civil procedure rules. NASD Rule
10314, however, requires only that the statement of claim specify ``the
relevant facts and the remedies sought.'' \13\ Should the proposed rule
provide additional guidance in the context of dispositive motions
concerning the relevant pleading standard in NASD arbitration?
---------------------------------------------------------------------------

    \13\ See Letters from Jill I. Gross and Barbara Black, Directors
of Advocacy, Pace Investor Rights Project (Jul. 14, 2005 and Jun. 6,
2006) (``Pace Letters'') and Letter from Brian Lantagne, Chair,
NASAA Broker-Dealer Arbitration Project Group (Jul. 19, 2006)
(``NASAA Letter'').
---------------------------------------------------------------------------

    (E) Authority of Arbitrators to Limit Filing of Dispositive
Motions: The proposed rules provide that dispositive motions are
``discouraged.'' One commenter suggested that the arbitration panel be
given the authority to manage the arbitration proceeding by denying
leave to make dispositive motions. Should NASD grant arbitrators this
authority in the proposed rule?
    (F) Additional Suggestions: Are there other ways in which the
proposed rule could balance cost effectiveness and efficiency with the
general principle that parties are entitled to a hearing in
arbitration?
    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 e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NASD-2006-088 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASD-2006-088. The file
number should be included on the subject line if e-mail 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 Web site (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 inspection and
copying in the Commission's Public Reference Section, 100 F Street,
NE., Washington, DC 20549. Copies of such filing will also be available
for inspection and copying at the principal office of NASD. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to SR-NASD-2006-088 and should be submitted on
or before September 21, 2006.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\14\
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
 [FR Doc. E6-14493 Filed 8-30-06; 8:45 am]

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[Federal Register: July 27, 2010 (Volume 75, Number 143)]
[Notices]
[Page 43989-43990]
[DOCID:fr27jy10-99]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0358]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Sample Collection Plan for Dogs Treated With SLENTROL

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing an
opportunity for public comment on the proposed collection of certain
information by the agency. Under the Paperwork Reduction Act of 1995
(the PRA), Federal agencies are required to publish notice in the
Federal Register concerning each proposed collection of information and
to allow 60 days for public comment in response to the notice. This
notice solicits comments on the sample collection plan for dogs treated
with the drug SLENTROL.

DATES: Submit either electronic or written comments on the collection
of information by September 27, 2010.

ADDRESSES: Submit electronic comments on the collection of information
to http://www.regulations.gov. Submit written comments on the
collection of information to the Division of Dockets Management (HFA-
305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061,
Rockville, MD 20852. All comments should be identified with the docket
number found in brackets in the heading of this document.

FOR FURTHER INFORMATION CONTACT: Denver Presley Jr., Office of
Information Management, Food and Drug Administration, 1350 Piccard Dr.,
PI50-400B, Rockville, MD 20850,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Under the PRA (44 U.S.C. 3501-3520), Federal
agencies must obtain approval from the Office of Management and Budget
(OMB) for each collection of information they conduct or sponsor.
``Collection of information'' is defined in 44 U.S.C. 3502(3) and 5 CFR
1320.3(c) and includes agency requests or requirements that members of
the public submit reports, keep records, or provide information to a
third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A))
requires Federal agencies to provide a 60-day notice in the Federal
Register concerning each proposed collection of information before
submitting the collection to OMB for approval. To comply with this
requirement, FDA is publishing notice of the proposed collection of
information set forth in this document.
    With respect to the following collection of information, FDA
invites comments on these topics: (1) Whether the proposed collection
of information is necessary for the proper performance of FDA's
functions, including whether the information will have practical
utility; (2) the accuracy of FDA's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; and (4) ways
to minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques, when
appropriate, and other forms of information technology.

Sample Collection Plan for Dogs Treated With SLENTROL--21 CFR 514.80
(OMB Control Number 0910-NEW)

    FDA's Center for Veterinary Medicine (CVM) is planning a
pharmacogenomic study to examine whether adverse drug events (ADEs)
experienced with SLENTROL, an anti-obesity drug approved for dogs, are
associated with genetic variations in the dogs treated.
Pharmacogenomics involves the use of genome-wide analyses to identify
genes with altered expression or activation as a result exposure to a
drug. Preliminary analysis by CVM has indicated potential correlations
between dog breeds and some ADEs. The study would collect a blood
sample and buccal swab from animals that have been treated with
SLENTROL and experienced specific ADEs (i.e., reactors), and animals
that have been treated with SLENTROL and that have not experienced ADEs
(i.e., controls). The samples would be analyzed by FDA using microarray
analysis and single nucleotide polymorphism analysis to determine
possible genetic variations associated with the ADEs reported. If this
project identifies definite genotype mutations

associated with drug response, CVM would potentially have a scientific
basis for modifying recommendations with regard to SLENTROL use.
    To conduct the study, FDA would seek the voluntary participation of
veterinarians in the private sector. FDA would contact veterinarians
who have reported adverse events with SLENTROL to FDA using a Form FDA
1932a, or veterinarians who have posted adverse experiences with
SLENTROL on Internet Web sites or other public forums with their
contact information, to ask them if they are willing to participate in
the study. If the veterinarians are willing to participate, and the
owners of the animals consent, FDA would provide the veterinarians with
a package that includes instructions and materials for taking a blood
sample and buccal swab from the animal, a postage paid envelope to
return the samples, and a brief ``Sample Collection'' form to be filled
out by the veterinarian. The ``Sample Collection'' form collects
information that includes the date and type of sample taken,
information about the treated dog (breed, age, gender and neuter
status, type of food), and information about past SLENTROL use and
adverse events experienced. FDA anticipates that participating
veterinarians will take the samples during routine office visits from
pet owners for their pets, and that pet owners will not make a special
trip to the veterinarian for the purpose of participation in the study.
FDA's goal is to obtain at about 100 samples.
    FDA estimates the burden of this collection of information as
follows:

                                                     Table 1.--Estimated Annual Reporting Burden\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              No. of         Annual Frequency       Total Annual        Hours per
                21 U.S.C. 512/ Form FDA                    Respondents         per Response          Responses           Response         Total Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
3754                                                                  100                     1                100                0.5                 50
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\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.

                                                   Table 2.--Estimated Annual Recordkeeping Burden\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         No. of  Record-   Annual Frequency per     Total Annual
                21 U.S.C. 512/ Form No.                      keepers         per Record-keeping       Records       Hours per  Record     Total Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
3754                                                                  100                     1                100                0.5                 50
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.

    FDA's estimates that it will take a veterinarian approximately 30
minutes to obtain the owner's consent, take the blood and buccal
samples, and fill out the ``Sample Collection'' form. This includes the
time necessary for a veterinarian to read instructions for taking
samples, to search the animal's medical records to obtain information
necessary to complete the form, such as the adverse events that
occurred after initiating SLENTROL treatment, and to mail the samples
and form to FDA. As noted previously, FDA anticipates that
participating veterinarians will obtain the samples during routine
office visits from the pet owner for their pet, and therefore no
reporting burden is contained in this collection of information with
respect to the owners of the animals involved in the study.
    Regarding recordkeeping, it is the customary and usual practice of
veterinarians to keep medical records for their patients, and the
agency believes that the proposed collection of information would not
contain any additional recordkeeping burdens. However, FDA has
estimated that an additional 30 minutes of recordkeeping will be
necessary to maintain records necessary to participate in the study.

    Dated: July 21, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2010-18304 Filed 7-26-10; 8:45 am]
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