[Federal Register Volume 83, Number 229 (Wednesday, November 28, 2018)]
[Notices]
[Pages 61177-61182]
[FR Doc No: 2018-25896]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84644; File No. SR-NYSENAT-2018-24]

Self-Regulatory Organizations; NYSE National, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its
Certificate of Incorporation and Bylaws

November 21, 2018.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on November 20, 2018, NYSE National, Inc. (``Exchange'' or ``NYSE
National'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its certificate of incorporation and
bylaws to (1) harmonize certain provisions thereunder with similar
provisions in the governing documents of the Exchange's national
securities exchange affiliates and parent companies; and (2) make
clarifying and updating changes. The proposed rule change is available
on the Exchange's website at www.nyse.com, 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 self-regulatory organization
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 those 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 parts of such statements.

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

1. Purpose
(1) Generally [sic]
    The Exchange proposes to the amend the Amended and Restated
Certificate of Incorporation of the Exchange (``Exchange Certificate'')
and the Fifth Amended and Restated Bylaws of the Exchange (``Exchange
Bylaws'') to (1) harmonize certain provisions thereunder with similar
provisions in the governing documents of the Exchange's national
securities exchange affiliates \4\ and parent companies; and (2) make
clarifying and updating changes.
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    \4\ The Exchange has four registered national securities
exchange affiliates: NYSE Arca, Inc. (``NYSE Arca''), New York Stock
Exchange LLC (``NYSE''), NYSE American LLC (``NYSE American''), and
Chicago Stock Exchange, Inc. (``CHX'' and together with the
Exchange, NYSE Arca, NYSE American, and NYSE, the ``NYSE Group
Exchanges''). CHX has filed to change its name to NYSE Chicago, Inc.
See Exchange Act Release No. 84494 (October 26, 2018) (SR-CHX-2018-
05) (``NYSE Chicago Release'') (notice of filing and immediate
effectiveness of proposal to reflect name changes of the Exchange
and its direct parent company and to amend certain corporate
governance provisions). The rule changes set forth in the NYSE
Chicago Release will become operative upon the Second Amended and
Restated Certificate of Incorporation of Chicago Stock Exchange,
Inc. (``NYSE Chicago Certificate'') becoming effective pursuant to
its filing with the Secretary of State of the State of Delaware.
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    The Exchange is owned by NYSE Group, Inc. (``NYSE Group''), which
in turn is indirectly wholly owned by NYSE Holdings LLC (``NYSE
Holdings''). NYSE Holdings is a wholly owned subsidiary of
Intercontinental Holdings, Inc. (``ICE Holdings''), which is in turn
wholly owned by the Intercontinental Exchange, Inc. (``ICE'').\5\
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    \5\ See Exchange Act Release No. 79902 (January 30, 2017), 82 FR
9258 (February 3, 2017) (SR-NSX-2016-16) (order approving proposed
rule change in connection with proposed acquisition of the Exchange
by NYSE Group, Inc.).
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    The Exchange operates as a separate self-regulatory organization
and has rules and membership rosters distinct from the rules and
membership rosters of the other NYSE Group Exchanges. At the same time,
however, the Exchange believes it is important for each of the NYSE
Group Exchanges to have a consistent approach to corporate governance
in certain matters, to simplify complexity and create greater

consistency among the NYSE Group Exchanges.\6\
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    \6\ See NYSE Chicago Release, supra note 4, at 3.
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    Because the Exchange is a Delaware corporation, most of the
proposed changes are based on the governing documents of CHX, which is
also a Delaware corporation, and NYSE Arca, which is a Delaware non-
stock corporation, as the most comparable NYSE Group Exchanges.\7\ The
proposed Exchange Certificate and Exchange Bylaws reflect the
expectation that the Exchange will continue to be operated with a
governance structure substantially similar to that of other NYSE Group
Exchanges, primarily CHX and NYSE Arca.
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    \7\ The other NYSE Group Exchanges, NYSE and NYSE American, are
limited liability companies organized under New York and Delaware
limited liability company law, respectively.
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    The other changes described herein would become operative upon the
Exchange Certificate becoming effective pursuant to its filing with the
Secretary of State of the State of Delaware.
    The proposed amendments described below are primarily based on the
Second Amended and Restated Certificate of Incorporation of Chicago
Stock Exchange, Inc. (``NYSE Chicago Certificate''), the Second Amended
and Restated By-Laws of NYSE Chicago, Inc. (``NYSE Chicago
Bylaws''),\8\ and the Amended and Restated Bylaws of NYSE Arca, Inc.
(``NYSE Arca Bylaws''). In addition, the amendments to the
indemnification provisions are based on the Eighth Amended and Restated
Bylaws of Intercontinental Exchange, Inc. (``ICE Bylaws'') and the
Sixth Amended and Restated Bylaws of Intercontinental Exchange
Holdings, Inc. (``ICE Holdings Bylaws'').
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    \8\ The NYSE Chicago Certificate and NYSE Chicago Bylaws have
been filed with the SEC, and will become operative when the NYSE
Chicago Certificate becomes effective pursuant to its filing with
the Secretary of State of the State of Delaware. See NYSE Chicago
Release, supra note 4, at 4.
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Proposed Amendments to the Exchange Certificate
    The Exchange proposes to amend the Exchange Certificate as follows.
Introductory Paragraph
    In a non-substantive change, the Exchange proposes to delete the
sentence stating ``[t]he Certificate of Incorporation was restated on
June 29, 2006, December 30, 2011, and February 18, 2015.''
Article FIRST
    In a non-substantive change, the Exchange proposes to replace
``NYSE NATIONAL, INC.'' with ``NYSE National, Inc.'' in Article FIRST,
to reflect that the legal name of the Exchange is not entirely in
capital letters.
Article SECOND and Certificate of Change of Registered Agent and/or
Registered Office
    In a non-substantive change, the Exchange proposes to update the
address of the registered office and name of the registered agent, as
previously filed, and, because such address and office are no longer
the initial address and office, delete the word ``initial'' from the
provision. The Exchange also proposes to delete the ``Certificate of
Change of Registered Agent and/or Registered Office.'' \9\
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    \9\ See Exchange Act Release No. 82925 (March 22, 2018), 83 FR
13165 (March 27, 2018) (SR-NYSENAT-2018-04).
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Article FIFTH
    Current paragraph (b) of Article FIFTH (Removal of Directors)
provides that any director may be removed from office by a vote of the
stockholders at any time with or without cause, except that Non-
Affiliated Directors, as defined in the Exchange Bylaws, may only be
removed for cause. The Exchange proposes to amend the definition of
``cause'' to provide that the list set forth in the provision is
inclusive. The Exchange notes that the revised provision would be
consistent with Article FIFTH(b) of the NYSE Chicago Certificate.\10\
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    \10\ See NYSE Chicago Release, supra note 4, at 14. See also
Eighth Amended and Restated Bylaws of Cboe BZX Exchange, Inc.
(``Cboe BZX Bylaws''), Section 3.4(c) (providing that ``[n]o
Representative Director may be removed from office by a vote of the
stockholders at any time except for cause, which shall include, but
not limited to, (i) a breach of a Representative Director's duty of
loyalty to the Corporation or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) transactions from which a
Representative Director derived an improper personal benefit, or
(iv) a failure of a Representative Director to be free from a
statutory disqualification (as defined in Section 3(a)(39) of the
Act)'') (emphasis added; NYSE Operating Agreement, Article II,
Section 2.03(l) (providing that cause ``shall include, without
limitation, the failure of [a] Director to be free of any statutory
disqualification . . .''); and NYSE American Operating Agreement,
Article II, Section 2.03(l) (same).
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Article EIGHTH
    In a non-substantive change, the Exchange proposes to correct a
typographical error in the title of Article EIGHTH, correcting
``Liabilitv'' with ``Liability''.
Article NINTH
    In a non-substantive change, the Exchange proposes to amend Article
NINTH to replace a reference to ``Delaware'' with ``the State of
Delaware.''
Date
    The Exchange proposes to update the date in the final paragraph.
Proposed Amendments to the Exchange Bylaws
    The Exchange proposes to amend the Exchange Bylaws as follows.
Conforming Changes
    In non-substantive changes, the Exchange proposes to delete the
cover page and table of contents of the Exchange Bylaws, and amend the
title to reflect that the proposed Exchange Bylaws are the ``Sixth
Amended and Restated Bylaws of NYSE National, Inc.''
Article III (Board of Directors)
    Section 3.6 (Vacancies): Section 3.6(a)(i) provides that any
vacancy on the Board may be filled by the Chairman of the Board,
subject to the approval by a majority of the directors then in office,
and that any vacancy will be filled with a person who satisfies the
classification associated with the vacant seat.
    In an administrative change, the Exchange proposes to add that that
the stockholders may also fill any vacancy, and those vacancies
resulting from removal from office by a vote of the stockholders for
cause may be filled by a vote of the stockholders at the same meeting
at which such removal occurs. Because, under Section 3.2(a), the
stockholders determine the number of directors, a new directorship may
be created. Accordingly, the Exchange proposes to add to Section
3.6(a)(i) that any newly created directorship will be filled with a
person who satisfies the classification associated with the seat.
    The first two sentences of the amended paragraph would be as
follows (additions italicized):
    Notwithstanding any provision herein to the contrary, any vacancy
in the Board, however occurring, including a vacancy resulting from an
increase in the number of the directors, may be filled (i) by the
Chairman of the Board, subject to the approval by a majority of the
directors then in office, or (ii) by action taken by the stockholders
of the Exchange, and those vacancies resulting from removal from office
by a vote of the stockholders for cause may be filled by a vote of the
stockholders at the same meeting at which such removal occurs. Any
vacancy or newly-created directorship will be filled with a person who
satisfies the classification (e.g., public) associated with the vacant
seat.

    The change would be consistent with clause (ii) of Article II,
Section 5 of the NYSE Chicago Bylaws, which was amended at the time of
its acquisition by ICE.\11\
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    \11\ See Exchange Act Release No. 83635 (July 13, 2018), 83 FR
34182 (July 19, 2018) (SR-CHX-2018-004), and Partial Amendment No. 2
to SR-CHX-2018-004 (June 11, 2018).
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    Section 3.7 (Removal): Section 3.7 provides that any director may
be removed from office by a vote of the stockholders at any time with
or without cause, except that non-affiliated directors may only be
removed for cause. The Exchange proposes to amend the definition of
``cause'' to provide that the list set forth in the provision is
inclusive, by replacing ``mean only'' with ``include.'' As a result of
the proposed amendment, the definition of ``cause'' would be
substantially similar to the definition in Article FIFTH(b) of the NYSE
Chicago Certificate.
    In a non-substantive change, the Exchange proposes to amend clause
(iii) to replace a reference to ``Delaware'' with ``the State of
Delaware.''
    Section 3.9 (Regular Meetings): Section 3.9 specifies that regular
meetings may be held, with or without notice, at such time or place as
the Board may specify in a resolution. The Exchange proposes an
administrative change to eliminate the requirement for a Board
resolution. The change would be consistent with the governing documents
of the other NYSE Group Exchanges, which do not require a board
resolution in order to call a meeting.\12\
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    \12\ See NYSE Arca Bylaws, Article III, Section 3.05; NYSE
Chicago Bylaws, Article II, Section 8; NYSE Operating Agreement,
Article II, Section 2.03(c); and NYSE American Operating Agreement,
Article II, Section 2.03(c).
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    Section 3.10 (Special Meetings): Paragraph (a) of Section 3.10
permits special meetings of the Board to be called on two days' notice
to each Director by the Chairman or the Chief Executive Officer, or by
the Secretary upon the request of any three Directors. In an
administrative change, The Exchange proposes to reduce the minimum
notice requirement from two days to one day, consistent with Article
II, Section 9(a) of the NYSE Chicago Bylaws.\13\ The Exchange believes
that reducing the minimum notice requirement to one day is reasonable
as it would facilitate the Board meeting quickly.
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    \13\ See NYSE Chicago Release, supra note 4, at 24. One day of
notice would be consistent with the bylaws of other national
securities exchanges. See NYSE Operating Agreement, Article II,
Section 2.03(c) (requiring 12 or 24 hours of notice, with the
exception of mailed notice); NYSE American Operating Agreement,
Article II, Section 2.03(c) (requiring 12 or 24 hours of notice,
with the exception of mailed notice); Cboe BZX Bylaws, Section 3.11
(requiring 24 hours of notice); Tenth Amended and Restated Bylaws of
Cboe Exchange, Inc. (``Cboe Exchange Bylaws''), Section 3.11
(requiring 24 hours of notice); and Bylaws of Nasdaq, Inc., Article
IV, Section 4.12 (requiring that notice be sent no later than ``the
day before the day'' of the meeting, with the exception of mailed
notice).
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    Paragraph (b) of Section 3.10 requires the person calling a special
meeting to fix the time and place at which the meeting will be held,
and deems notice to be given five business days after deposit in the
United States mail. In an administrative change, the Exchange proposes
to:
     Eliminate the requirement that the person calling the
special meeting fix the time and place of the meeting, as Article III,
Section 3.8 already addresses the place and mode of Board meetings;
     state that notice may be given by written, electronic or
telephonic means; and
     reduce the period for deemed notice of mailed notice from
five to two business days.
    The changes would be consistent with Article II, Section 9(b) of
the NYSE Chicago Bylaws.
    Sections 3.11 (Voting; Quorum and Action by the Board) and 3.14
(Action in Lieu of Meeting): Section 3.11 provides that the presence of
a majority of the directors then in office shall constitute a quorum
for Board meetings. Section 3.14 provides that, unless otherwise
restricted by statute, the Exchange Certificate or the Exchange By-
Laws, action may be taken without a meeting if certain procedural
requirements are met. The Exchange proposes to make the following
administrative changes to the provisions:
     In Section 3.11, the Exchange proposes to clarify that the
proposed quorum requirement would apply ``[e]xcept as otherwise
required by law'' \14\ and to change a reference to ``statute'' with
``law.''
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    \14\ See, e.g. DCGL Section 141(b).
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     In Section 3.14, the Exchange proposes to replace
``restricted by statute'' with ``provided by law.''
    The change to add an exception to Section 3.11 would allow the
written notice to be consistent with both applicable law and the
Exchange Bylaws, should applicable law set forth specific requirements
that differ from the Bylaw provision. The Exchange proposes to change
``statute'' to ``law,'' as the latter is a broader term, which includes
non-statutory law, such as common law. The changes would be consistent
with the NYSE Chicago Bylaws.\15\
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    \15\ See NYSE Chicago Bylaws, Article II, Sections 10 and 13;
and NYSE Chicago Release, supra note 4, at 26-27.
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Article IV (Stockholders)
    Sections 4.1 (Annual Meeting), 4.2 (Special Meetings), and 4.4
(Quorum and Vote Required for Action): Among other provisions, Sections
4.1 and 4.2 set forth the notice requirements for annual and special
meetings of stockholders. Section 4.4 sets forth the quorum and voting
requirements. For the reasons set forth above, the Exchange proposes to
make the following administrative changes to the provisions:
     The Exchange proposes to add ``[e]xcept as otherwise
provided by law,'' before the sentences in Sections 4.1 and 4.2 that
set forth the written notice requirements.\16\
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    \16\ See Del. Code tit. 8, Sec.  222.
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     In Section 4.4, the Exchange proposes to replace
``statute'' with ``law'' in paragraph (a) and ``Statute'' with
``General Corporation Law of the State of Delaware'' in paragraph (b).
    The changes would be consistent with the NYSE Chicago Bylaws.\17\
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    \17\ See NYSE Chicago Bylaws, Article III, Sections 1, 2, and
5(b); and NYSE Chicago Release, supra note 4, at 29-31.
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    Section 4.3 (List of Stockholders): Section 4.3 provides that the
Secretary or a designated person shall have charge of the stock ledger
of the Exchange and, before every stockholder meeting, shall prepare a
list of stockholders entitled to vote. In an administrative change, the
Exchange proposes to amend the provision such that, as permitted by
Section 219(a) of the DGCL, the ``Exchange'' keeps the ledger and
prepares the list of stockholders.\18\ The change would be consistent
with Article III, Section 4 of the NYSE Chicago Bylaws.\19\
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    \18\ Del. Code tit. 8, Sec.  219(a).
    \19\ See NYSE Chicago Release, supra note 4, at 30.
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    Section 4.6 (Action in Lieu of Meeting): Section 4.6 permits
stockholder action to be taken by written consent and provides certain
requirements related to such written consent. In an administrative
change, the Exchange proposes to amend the provisions to permit
stockholder action to be taken by written consent and to the extent
provided by the DGCL, but only if the matter to be voted upon were
approved by the Board and the Board had directed that the matter be
brought before the stockholders. The amended provision would be
substantially similar

to Article III, Section 7 of the NYSE Chicago Bylaws.\20\
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    \20\ See id., at 31-32.
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Article V (Committees)
    Section 5.2 (Appointment; Vacancies; and Removal): Section 5.2(b)
provides that any vacancy in a Board committee shall be filled by the
Chief Executive Officer with the approval of the Board. Consistent with
the DGCL and Article IV, Section 2(b) of the NYSE Chicago Bylaws,\21\
the Exchange proposes to provide that only the Board can fill a vacancy
in a Board committee.
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    \21\ See Del. Code tit. 8, Sec.  141(c)(1).
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    Section 5.6 (Regulatory Oversight Committee): Section 5.6
establishes the powers and responsibilities of the Regulatory Oversight
Committee, and is substantially the same as the related provisions in
the governing documents of the other NYSE Group Exchanges. \22\ Among
other things, the provision states that ``[t]he Board may, on
affirmative vote of a majority of directors, at any time remove a
member of the ROC for cause.'' The Exchange proposes to add language
clarifying that the majority affirmative vote requirement is based on
the ``directors then in office,'' as opposed to total number of seats
on the Board. The change would be consistent with Article IV, Section 6
of the NYSE Chicago Bylaws.\23\
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    \22\ See NYSE Arca Rule 3.3; NYSE Operating Agreement, Article
II, Section 2.03(h)(ii); NYSE American Operating Agreement, Article
II, Section 2.03(h)(ii); NYSE Chicago Bylaws, Article IV, Section 6.
    \23\ See NYSE Chicago Release, supra note 4, at 35. The Exchange
understands that NYSE, NYSE American, and NYSE Arca propose to file
similar changes to their respective ROC provisions.
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Article VII (Indemnification)
    Current Article VII includes provisions related to indemnification
by the Exchange. As a wholly-owned subsidiary of ICE, the Exchange
believes it appropriate to harmonize the Exchange's indemnification
provisions with those of ICE and the Exchange's intermediate holding
company, ICE Holdings.\24\ The same change was made to Article VI of
the NYSE Chicago Bylaws.\25\
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    \24\ See ICE Bylaws, Article X, Section 10.6, and ICE Holdings
Bylaws, Article X, Section 10.6.
    \25\ See NYSE Chicago Release, supra note 4, at 41. The Exchange
understands that NYSE, NYSE American, and NYSE Arca propose to file
similar changes to their respective indemnification provisions.
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    Accordingly, the Exchange proposes to delete the text of Section
7.1 (Indemnification) in its entirety and replace it with proposed text
that is substantially similar to the CHX, ICE and ICE Holdings
provisions, with the exception of changes to be consistent with the
Exchange Bylaws' terminology.\26\ The proposed text follows:
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    \26\ For example, proposed Section 7.1 uses ``officer'' instead
of ``Senior Officers,'' ``Exchange'' instead of ``Corporation,'' and
``Section 7.1'' instead of ``Section 10.6.''
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    (a) The Exchange shall, to the fullest extent permitted by law, as
those laws may be amended and supplemented from time to time, indemnify
any director or officer made, or threatened to be made, a party to any
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of being a director or officer of the Exchange
or a predecessor corporation or, at the Exchange's request, a director,
officer, partner, member, employee or agent of another corporation or
other entity; provided, however, that the Exchange shall indemnify any
director or officer in connection with a proceeding initiated by such
person only if such proceeding was authorized in advance by the Board
of Directors of the Exchange. The indemnification provided for in this
Section 7.1 shall: (i) Not be deemed exclusive of any other rights to
which those indemnified may be entitled under any bylaw, agreement or
vote of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in another
capacity while holding such office; (ii) continue as to a person who
has ceased to be a director or officer; and (iii) inure to the benefit
of the heirs, executors and administrators of an indemnified person.
    (b) Expenses incurred by any such person in defending a civil or
criminal action, suit or proceeding by reason of the fact that he is or
was a director or officer of the Exchange (or was serving at the
Exchange's request as a director, officer, partner, member, employee or
agent of another corporation or other entity) shall be paid by the
Exchange in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Exchange as authorized by law. Notwithstanding the foregoing, the
Exchange shall not be required to advance such expenses to a person who
is a party to an action, suit or proceeding brought by the Exchange and
approved by a majority of the Board of Directors of the Exchange that
alleges willful misappropriation of corporate assets by such person,
disclosure of confidential information in violation of such person's
fiduciary or contractual obligations to the Exchange or any other
willful and deliberate breach in bad faith of such person's duty to the
Exchange or its stockholders.
    (c) The foregoing provisions of this Section 7.1 shall be deemed to
be a contract between the Exchange and each director or officer who
serves in such capacity at any time while this bylaw is in effect, and
any repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such state of
facts. The rights provided to any person by this bylaw shall be
enforceable against the Exchange by such person, who shall be presumed
to have relied upon it in serving or continuing to serve as a director
or officer or in such other capacity as provided above.
    (d) The Board of Directors in its discretion shall have power on
behalf of the Exchange to indemnify any person, other than a director
or officer, made or threatened to be made a party to any action, suit
or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person, or his or her
testator or intestate, is or was an officer, employee or agent of the
Exchange or, at the Exchange's request, is or was serving as a
director, officer, partner, member, employee or agent of another
corporation or other entity.
    (e) To assure indemnification under this Section 7.1 of all
directors, officers, employees and agents who are determined by the
Exchange or otherwise to be or to have been ``fiduciaries'' of any
employee benefit plan of the Exchange that may exist from time to time,
Section 145 of the Delaware General Corporation Law shall, for the
purposes of this Section 7.1, be interpreted as follows: An ``other
enterprise'' shall be deemed to include such an employee benefit plan,
including without limitation, any plan of the Exchange that is governed
by the Act of Congress entitled ``Employee Retirement Income Security
Act of 1974,'' as amended from time to time; the Exchange shall be
deemed to have requested a person to serve an employee benefit plan
where the performance by such person of his duties to the Exchange also
imposes duties on, or otherwise involves services by, such person to
the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant
to such Act of Congress shall be deemed ``fines.''

Article IX (Certificates of Stock and Their Transfer)
    Section 9.1 (Form and Execution of Certificates): Section 9.1
provides requirements related to the execution of stockholder
certificates. The Exchange proposes to amend the requirements to
provide that the certificate may be signed by ``any two authorized
officers,'' instead of listing the specific officers authorized to
execute a certificate, which better reflects the requirements of
Section 158 of the DGCL.\27\ The change would be consistent with
Article VIII, Section 1 of the NYSE Chicago Bylaws.\28\
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    \27\ See Del. Code tit. 8, Sec.  158.
    \28\ See NYSE Chicago Release, supra note 4, at 47.
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    Article XI (General Provisions)
    Section 11.2 (Dividends): Section 11.2 permits the Board to declare
dividends. The Exchange proposes to replace the phrase ``[s]ubject to
any provisions of any applicable statute,'' which qualifies the Board's
authority to issue dividends, with ``[s]ubject to any applicable law''
so as to eliminate redundant language and clarify that proposed Section
11.2 would be subject to any non-statutory law, such as common law. The
change would be consistent with Article X, Section 2 of the NYSE
Chicago Bylaws.\29\
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    \29\ See id., at 51.
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    Section 11.4 (Subsidiaries): Section 11.4 authorizes the Board to
constitute any officer of the Exchange to vote the stock of any
subsidiary corporation on behalf of the Exchange. In an administrative
change, the Exchange proposes to add a second sentence stating that
``[i]n the absence of specific action by the Board of Directors, the
Chief Executive Officer and Secretary of the Exchange shall have
authority to represent the Exchange and to vote, on behalf of the
Exchange, the securities of other corporations, both domestic and
foreign, held by the Exchange.''
    The Exchange believes that permitting the Secretary of the Exchange
to act on behalf of the Exchange pursuant to proposed Section 4 is
appropriate given that the Secretary is frequently tasked to execute
the Exchange's actions, especially as it relates to corporate
governance. Under Section 11.4, the Board may constitute any officer of
the Exchange, which includes the Secretary, to vote the stock of any
subsidiary of the Exchange. The Board has approved the proposed changes
to the Bylaws, including the proposed changes to Section 11.4. By
approving the proposed changes to Section 11.4, the Board granted the
Secretary the authority described therein. Moreover, proposed Section
11.4 would continue to permit the Board to revoke such voting power or
constitute another officer with such voting power. The change would be
consistent with Article X, Section 4 of the NYSE Chicago Bylaws.\30\
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    \30\ See id., at 51-52.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act,\31\ in general, and furthers the
objectives of Section 6(b)(1) \32\ in particular, in that it enables
the Exchange to be so organized as to have the capacity to be able to
carry out the purposes of the Exchange Act and to comply, and to
enforce compliance by its exchange members and persons associated with
its exchange members, with the provisions of the Exchange Act, the
rules and regulations thereunder, and the rules of the Exchange. The
Exchange also believes that the proposed rule change is consistent with
Section 6(b)(5) of the Exchange Act,\33\ in that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, 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)(1).
    \33\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed amendments to harmonize
certain provisions of the Exchange Certificate and Bylaws with similar
provisions of the governing documents of other NYSE Group Exchanges,
ICE and ICE Holdings would contribute to the orderly operation of the
Exchange and would enable the Exchange to be so organized as to have
the capacity to carry out the purposes of the Exchange Act and comply
with the provisions of the Exchange Act by its members and persons
associated with members. For example, the proposed changes would create
greater conformity between the Exchange's provisions relating to
stockholders, officers, and stock certificates and those of its
affiliates, particularly CHX and NYSE Arca. The Exchange believes that
such conformity would streamline the NYSE Group Exchanges' corporate
processes, create more equivalent governance processes among them, and
also provide clarity to the Exchange's members, which is beneficial to
both investors and the public interest. At the same time, the Exchange
will continue to operate as a separate self-regulatory organization and
to have rules and membership rosters distinct from the rules and
membership rosters of the other NYSE Group Exchanges.
    The Exchange also believes that the greater consistency among the
governing documents of the NYSE Group Exchanges, ICE and ICE Holdings
would promote the maintenance of a fair and orderly market, the
protection of investors and the protection of the public interest.
Indeed, the proposed amendments would make the corporate requirements
and administrative processes relating to the Board, Board committees,
officers, stockholders, and other corporate matters more similar to
those of the NYSE Group Exchanges, in particular CHX and NYSE Arca,
which have been established as fair and designed to protect investors
and the public interest.\34\
---------------------------------------------------------------------------

    \34\ See NYSE Chicago Release, supra note 4, Exchange Act
Release Nos. 83303 (May 22, 2018), 83 FR 24517 (May 29, 2018) (SR-
CHX-2018-004); and 81419 (August 17, 2017), 82 FR 40044 (August 23,
2017) (SR-NYSEArca-2017-40).
---------------------------------------------------------------------------

    The proposed amendments to clarify the meaning of certain
provisions of the Exchange Certificate and the Exchange Bylaws, to
better comport certain provisions with the DGCL and to effect non-
substantive changes would facilitate the Exchange's continued
compliance with the Exchange Certificate and Bylaws and applicable law,
which would further enable the Exchange to be so organized as to have
the capacity to be able to carry out the purposes of the Exchange Act
and to comply, and to enforce compliance by its exchange members and
persons associated with its exchange members, with the provisions of
the Exchange Act, the rules and regulations thereunder, and the rules
of the Exchange. Such amendments would also remove impediments to and
perfects the mechanism of a free and open market by removing confusion
that may result from corporate governance provisions that are either
unclear or inconsistent with the governing law.
    The Exchange also believes that the proposed amendments would
remove impediments to and perfect the mechanism of a free and open
market by ensuring that persons subject to the Exchange's jurisdiction,
regulators, and the investing public can more easily navigate and
understand the governing documents. The Exchange further believes that
the proposed amendments would not be inconsistent with the public
interest and the protection of investors because investors will not be
harmed and in fact would benefit from

increased transparency and clarity, thereby reducing potential
confusion.

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 that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act. The proposed rule
change is not intended to address competitive issues but rather is
concerned solely with the corporate governance and administration of
the Exchange.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \35\ and Rule 19b-4(f)(6) thereunder.\36\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \35\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \36\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \37\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \37\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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. 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-NYSENAT-2018-24 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-NYSENAT-2018-24. 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 a.m. and 3
p.m. Copies of the 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-NYSENAT-2018-24 and should be submitted
on or before December 19, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\38\
---------------------------------------------------------------------------

    \38\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Brent J. Fields,
Secretary.
[FR Doc. 2018-25896 Filed 11-27-18; 8:45 am]
 BILLING CODE 8011-01-P


                             Supporting Statement
for
Collection of Information on Anaerobic Digestion Facilities Processing Wasted Food
            to Support EPA's Sustainable Food Management Program

               EPA Information Collection Request Number 2533.01

                               February 16, 2016

Contents
1.	IDENTIFICATION OF THE INFORMATION COLLECTION	1
1(a)	Title of the Information Collection	1
1(b)	Short Characterization/Abstract	1
2. NEED FOR AND USE OF THIS COLLECTION	3
2(a)	Need/Authority for the Collection	3
2(b)	Practical Utility/Users of the Data	3
3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA	4
3(a) Nonduplication	4
3(b)	Public Notice Required Prior to ICR Submission to OMB	5
4. THE RESPONDENTS AND THE INFORMATION REQUESTED	6
4(a)	Respondent NAICS Codes	6
4(b)	Information Requested	9
5. THE INFORMATION COLLECTED - AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT	11
5(a)	Agency Activities	11
5(b)	Collection Methodology and Management	11
5(c)	Small Entity Flexibility	11
5(d)	Collection Schedule	12
6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION	12
6(a)	Estimating Respondent Burden	12
6(b)	Estimating Respondent Costs	13
6(c)	Estimating Agency Burden and Costs	16
6(d)	Estimating the Respondent Universe	18
6(e)	Bottom Line Burden Hours and Costs	19
6(f)	Reasons for Change in Burden	19
6(g)	Burden Statement	19

 IDENTIFICATION OF THE INFORMATION COLLECTION
Title of the Information Collection
      This new information collection is entitled "Collection of Information on Anaerobic Digestion Facilities Processing Wasted Food to support EPA's Sustainable Food Management Program," ICR number 2533.01, OMB control number 2050-NEW.
Short Characterization/Abstract

      EPA's Office of Land and Emergency Management Sustainable Food Management (SFM) program is designed to advance sustainable food management practices throughout the United States by preventing and diverting wasted food from landfills.  The focal point of the SFM program is the Food Recovery Challenge in which organizations pledge to improve their sustainable food management practices.  The success of the SFM program efforts to divert wasted food from landfills requires sufficient capacity to process the diverted materials which includes composting and anaerobic digestion operations.  In addition to increasing opportunity to process wasted food diverted from the municipal solid waste stream, anaerobic digesters achieve social, environmental and economic benefits, such as generation of renewable energy, reduction of methane emissions, and opportunities to improve soil health through the production of soil amendments.  The SFM program supports these efforts by educating state and local governments and communities about the benefits of wasted food diversion.  The SFM program also builds partnerships with state agencies and other strategic partners interested in developing organics recycling capacity and provides tools to assist organizations in developing anaerobic digestion (AD) projects.
      The SFM Program informally tracks data on anaerobic digesters to quantify and monitor the capacity for processing diverted wasted food in the United States at AD facilities. This AD data consists of information compiled from publicly available sources only.  The information requested by this ICR is being formally collected for the first time and would exceed 10 non-Federal respondents. This information collection would allow the SFM program to document the capacity for processing wasted food at AD facilities, track the growth of this capacity and provide a better understanding of the factors affecting this growth.  This knowledge will also help develop future activities designed to further increase capacity.  Increasing capacity for digestion of wasted food will spur growth in the biogas sector as a whole, advance federal goals to reduce methane emissions, increase production of renewable energy and assist state and local governments with their solid waste diversion goals.
      This information collection consists of a data collection request to gather details regarding AD facilities for enhancement of the existing data into an AD facility inventory for the SFM program (SFM AD Facility Inventory).  This information collection will include annual updates to the data set.  Respondents will be requested to complete a questionnaire for this effort.
      A key objective of the SFM program is to support beneficial use of wasted food by decreasing barriers to diversion.  Providing information on the location and capacity of AD facilities in the United States to receive wasted food and other organic materials can assist with this issue.  In order to ensure that the existing AD data is complete and accurate, the SFM program needs to gather information from all stakeholders involved in the development and management of AD facilities accepting organic wastes.  This includes state and local regulatory officials as well as industry representatives.  Annual updates to the SFM AD Facility Inventory will be necessary to maintain accuracy over time.  This information will allow EPA to estimate and communicate the total capacity and environmental benefits of these projects and enable the SFM program to strategically plan future activities to support sustainable food management practices.  Additionally, stakeholders can use this information to encourage the diversion of wasted food and justify funding resources for AD projects.  Respondents for this ICR are: 1) State Liaisons, 2) Industry Representatives, 3) Project Owners/Operators, and 4) Other Stakeholders (e.g. non-profits).
      This ICR provides a comprehensive description of information collection efforts to support EPA's SFM program.  Sections 1 through 5 describe the information collection with respect to need, use and respondent activities. Section 6 estimates the annual hour and cost burden to respondents and the Agency under this collection.

2. NEED FOR AND USE OF THIS COLLECTION
          2(a)	Need/Authority for the Collection
      Information collected from respondents will allow EPA to track, facilitate and measure the increase in capacity to process wasted food (organics) via anaerobic digestion throughout the United States.   The success of the Sustainable Food Management Program's Food Recovery Challenge is dependent on a steady increase of processing capacity over time.  At this time, EPA does not have the necessary data to demonstrate this growth or to document the current baseline processing capacity.  As the practice of organics diversion gains momentum, the rate at which wasted food is diverted from landfills will rapidly increase.  This data is essential for EPA to evaluate agency activities designed to build such capacity and to make adjustments to the overall Sustainable Materials Management (SMM) program, as needed.  The importance of this type of data was recently emphasized in EPA's SMM Strategic Plan (Fiscal Year 2017-2022).
          2(b)	Practical Utility/Users of the Data
EPA will use information submitted by respondents to update and expand its inventory of AD facilities.  Data on processing capacity and end uses of AD products will be collected as part of the inventory expansion.  Data on AD projects will serve as a source of information to inform the public and lawmakers about the environmental benefits, such as renewable energy, derived from anaerobic digesters.  The quantitative and qualitative data captured will assist the SFM program with future resource planning. EPA will use information provided by state contacts involved in the review and approval of new or ongoing projects to update the inventory and to identify barriers and opportunities within the AD sector. Information from industry representatives, project owner/operators, and other stakeholders will increase EPA's ability to provide technical assistance to states and municipalities related to project design, implementation, cost effectiveness, return on investment and successful business models.

3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA
    3(a) Nonduplication
For non-federal respondents, the information to be collected has not been collected previously by EPA or any other federal agency from more than 9 respondents. Comprehensive information about existing and new AD projects is not available through any other mechanism. To avoid requesting information that has already been compiled, respondents will receive a spreadsheet, pre-populated with existing AD data. Respondents will be asked to review the information and to provide updates as well as missing or additional information.
The AD community often announces the planning or installation of digester operations, so some of the necessary data are available in publications.  The information collection process will allow EPA to collect information from respondents related to the unpublished details of AD projects and projects not covered by existing publications.
       3(b)	Public Notice Required Prior to ICR Submission to OMB
      This Supporting Statement is associated with the initial Federal Register notice for this ICR.  Any comments received during the first 60-day public comment period will be documented prior to submittal of the ICR package to OMB.
  3(c) 	Consultations
      SFM staff contacted three respondents to request information on the estimated amount of time required to respond to the SFM AD Facility Inventory questionnaire.
Table 1: List of Respondent Consultations for the SFM AD Facility Inventory Update
                         Contact Person, Organization
                                     Role
                                 Email Address
Brian Langolf, Director of Biogas Systems and Research Development, University of Wisconsin  -  Oshkosh
                                  AD Operator
<EMAIL_ADDRESS>Dana Kirk, Assistant professor in Biosystems and Agricultural Engineering, Michigan State University
                                  AD Operator
<EMAIL_ADDRESS>
Dave Baran, Quasar Energy Group, Project Development
                             AD Vendor/Consultant
<EMAIL_ADDRESS>
      3(d)	Effects of Less Frequent Collection
      The SFM AD Facility Inventory and questionnaire will be distributed to potential respondents annually.  Any reduction in the frequency of this information collection would impede efforts to facilitate anaerobic digestion implementation and track the increased diversion of wasted food and expanded infrastructure capacity in the organics recycling sector.

      3(e)	General Guidelines
      Information collections performed under this clearance will follow all of OMB's General Guidelines regarding federal data collection.
      3(f) 	Confidentiality
Participation in this data collection effort is voluntary.  Respondents are not required to reveal confidential business information. Additionally, respondents will be given specific instructions to not provide any information that they consider confidential.
      3(g) 	Sensitive Questions
      No questions of a sensitive nature are asked as part of this collection effort or included within the pre-populated project data spreadsheet.
4. THE RESPONDENTS AND THE INFORMATION REQUESTED
       4(a)	Respondent NAICS Codes
      This information collection will encompass a wide variety of respondents. State liaisons include staff from state agencies involved in energy, environment and solid waste management. Industry representatives include engineering firms, construction companies, environmental consultants, and other companies involved in the logistics of developing anaerobic digesters.  Other stakeholders include non-profit groups or non-governmental organizations (NGOs), as well as universities that provide information or other support to the project owners or industry representatives. Table 4 provides a summary of the applicable North American Industry Classification System (NAICS) codes and relevant descriptions for each type of respondent.  The NAICS description is followed by the relevant sector and Standard Occupational Classification (SOC) code.  The SOC code will be used to determine the applicable labor rate for each type of respondent.

                Table 4: Respondents to Information Collection
                                Respondent Type
                                  NAICS Code
                    NAICS Description (Sector and SOC code)
State Liaison
                                    999200
Public Administration; State Managers (Sector 99: Federal, State and Local government; SOC code 11-9041  -  Architectural and Engineering Managers)
Industry Representatives
                                    221100
Electric Power Generation, Transmission and Distribution (Sector 22: Utilities; SOC code 17-2081  -  Environmental Engineers)

                                    333100
Agriculture, Construction, and Mining Machinery Manufacturing  (Sector 33: Manufacturing; SOC code 11-9041  -  Architectural and Engineering Managers)

                                    541300
Engineering Services (Sector 54: Professional, Scientific, and Technical Services; SOC code 17-2081  -  Environmental Engineers)
Project Owners or Operators
                                    541300
Engineering Services (Sector 54: Professional, Scientific, and Technical Services; SOC code 17-2081  -  Environmental Engineers)

                                    221300
SOC Code 51-8031:  Water and Wastewater Treatment Plant and System Operators

                                    611300
Colleges, Universities, and Professional Schools (Sector 61: Educational Services; SOC code 17-2081  -  Environmental Engineers)
Other Stakeholders
                                    813900
Business, Professional, Labor, Political, and Similar Organizations (Sector 81: Other Services; SOC codes 19-4091  -  Environmental Science and Protection Technicians (for Conservation non-profit staff; university researchers)

		Table 5 below provides example respondents under each respondent type, the applicable NAICS codes, and the number of potential respondents for the program covered by this ICR. This table shows the number of potential respondents for each NAICS.
                   Table 5: Number of Potential Respondents
                                Respondent Type
                                  NAICS Code
                             Example Respondent(s)

                               SFM AD Inventory
State Liaison
999200
State energy or natural resources official
                                      60
Industry Representatives
221100
Electric cooperative engineer; Energy service providers
                                      10

333100
Manufacturers or distributors of AD systems
                                      20

541300
Consultants and system developers
                                      25

541300
AD facility operator
                                      75
Project Owners or Operators
221300
Water and Wastewater Treatment Plant and System Operator

                                      200

611300
University digester operator
                                      15
Other Stakeholders
813900
Conservation non-profits; University researchers
                                      10
TOTAL (Year 1)
                                      415

TOTAL (Year 2)
                                      458

TOTAL (Year 3)
                                      508

       4(b)	Information Requested
      (i)	Data Items, Including Recordkeeping Requirements
Information will be collected annually for the SFM AD Facility Inventory.  Questionnaires specific to respondent type and a pre-populated electronic spreadsheets will be used to collect information and track updates.  As stated above in Section 1(b), collection of information on anaerobic digesters for the SFM AD Facility Inventory is intended to provide information on the capacity for recycling of food-based materials and the growth of this capacity over time.  During the first year of data collection, respondents will be requested to respond to a questionnaire designed to obtain the following information on the facilities that are within their purview:
 Project name, type, location, and operational status;
 Feedstock type and volume processed;
 Digester characteristics and capacity, including design specifications; and
 Information on the end-use of by-products produced.
This information is needed to effectively track existing AD projects and their capacity for processing food and other organic wastes and to gain a better understanding of the market for AD by-products.   Respondents will also be requested to review a spreadsheet of existing information and identify any additional facilities that they might be aware of or have information about.  This information will assist EPA in identifying facilities that are not currently part of the data set.  To date, the SFM program has compiled preliminary AD facility data based on publicly available information.
During subsequent year requests, respondents associated with the facilities that are already part of the SFM AD Facility Inventory, will receive a pre-populated electronic spreadsheet with the previous years' data set.  These respondents will be requested to review this data and provide new or revised information where appropriate.  The number of respondents is expected to increase by 10% each year.  For data collection during years 2 and 3 of this ICR, completion of the questionnaire will only be necessary for respondents associated with newly identified facilities not previously represented in the data set.
Project owners and operators may choose to provide information to EPA more frequently than annually if there are changes to project status, capacity, processing rates etc.  However, the SFM program will update information made available to the public on all projects on an annual basis. Participation does not require that any records be kept, although respondents will likely maintain file copies of updates submitted to EPA.
 (ii)	Respondent Activities
      Respondents will provide detailed information only on the projects in which they are involved.
For the initial data request respondents will:
          complete the questionnaire (provided by EPA);
          review the pre-populated spreadsheet (provided by EPA);
          identify additional facilities, if known;
          email information on new facilities and/or the completed questionnaire to EPA; and
          maintain a filed copy of the information submitted electronically (optional).
To provide annual updates to the SFM AD Facility Inventory respondents will:
          review the spreadsheet with the pre-populated data set;
          provide updated information on the projects under the respondents' purview in a separate un-populated spreadsheet (provided by EPA);
          identify additional facilities, if known;
          email information on new facilities and/or newly populated spreadsheet to EPA; and
          maintain a filed copy of the information submitted electronically (optional)
5. THE INFORMATION COLLECTED - AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT
       5(a)	Agency Activities
In requesting and receiving information under this ICR for development and maintenance of the SFM AD Facility Inventory, EPA will complete the following tasks:
 Collect updates/questionnaires from respondents and maintain copy of all submitted data;
 Review information provided and follow up with respondent, if necessary;
 Use information collected to enhance the existing data into the SFM AD Facility Inventory (Year 1);
 Enter information into the SFM AD Facility Inventory file (Years 2 and 3); and
 Post facility information on the EPA website
       5(b)	Collection Methodology and Management
      EPA selected the methods for collecting this information to optimize efficiency and minimize the burden for respondents and EPA. The SFM program will notify respondents by email with an attached spreadsheet and questionnaire. All information received from respondents will be reviewed by EPA before being finalized and posted on the EPA website.
       5(c)	Small Entity Flexibility
      The respondent type identified as "Other Stakeholders" are not classified as small entities due to the non-profit nature of these respondents.   Many of the project owner/operators are municipalities or cities.  Both municipalities and cities as well as state liaisons are considered government entities.  According to the United States Small Business Administration (SBA), government entities are not permitted to be classified as small businesses for the purposes of this analysis.
      Based on the applicable thresholds for the remaining NAICS codes as established by the SBA (see: https://www.sba.gov/content/small-business-size-standards) some industry representatives may be considered small entities.  In particular, manufacturers or distributors of AD systems and consultants and system developers could be classified as small entities.
      However, the average annual burden and cost per respondent requested under this ICR is estimated to be 30 minutes and $74, respectively.   The response burden does not require any capital investments, only a small amount of labor and EPA ensures that the process for responding to the AD inventory questionnaires and updates is as efficient as possible by providing a pre-populated spreadsheet that respondents can simply review and provide the requested information or updates.  This annual burden and cost is not expected to pose a significant burden on small entities.  In addition, a response is requested by EPA, but not required and respondents may choose not to respond.
       5(d)	Collection Schedule
      EPA will collect information annually for the SFM AD Facility Inventory through the use of questionnaires and pre-populated spreadsheets which respondents can review, complete and update.
6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION
       6(a)	Estimating Respondent Burden
      In order to obtain accurate hourly burden and cost estimates, EPA consulted with three stakeholders regarding burden and cost assumptions for this ICR. The total hourly burden estimates for the program (for the entire 3-year ICR time period) are summarized in Table 7 below.
   Table 7: Total Burden Hours for SFM AD Inventory Updates (3 Year Period)
                                Respondent Type
                                  NAICS Code
                             Total Burden (hours)
                        October 2016  -  September 2019
State Liaisons
                                    999200
                                      100
Industry Representatives
                                    221100
                                      17

                                    333100
                                      34

                                    541300
                                      42
Project Owners or Operators
                                    541300
                                      125

                                    221300
                                      331

                                    611300
                                      26
Other Stakeholders
                                    813900
                                      17
TOTAL
                                      692

      The burden hours listed in the table above are based on the following assumption:  each annual inventory update for the SFM AD Facility Inventory requires 30 minutes. The burden hour estimates displayed in Table 7 are rounded to the nearest hour. The respondent costs, including wage rate assumptions, are described below. Table 9 presents the estimated total respondent costs during the 3-year ICR period for each type of respondent, using the wage rates outlined in Table 8.
       6(b)	Estimating Respondent Costs
             Estimating Labor Costs
      For each respondent type and NAICS code, EPA used the mean hourly wage for the applicable SOC codes, which are listed in Table 8 below. Labor rates were not divided into clerical, legal, or other labor sub-categories for a specific NAICS code since respondents subject to the information collection effort will be primarily engineers/scientists. Rates were obtained from the Bureau of Labor Statistics' May 2014 National Industry-Specific Occupational Employment and Wage Estimates (see: http://www.bls.gov/oes/current/oessrci.htm#11). The total labor rate used to calculate cost was obtained by applying an overhead rate of 110 percent.
          Table 8: Mean Hourly Wages by Respondent Type and SOC Code
                                Respondent Type
                                  NAICS Code
                                   SOC code
                                   May 2014
                             Mean Hourly Wage ($)
                                   May 2014
                             Mean Hourly Wage ($)
                               (+110% overhead)
                                   May 2016
                             Mean Hourly Wage ($)
                             (+ 2% annual growth)
State Liaisons
                                    999200
SOC code 11-9041: Architectural and Engineering Managers
                                     45.20
                                     94.92
                                     98.75
Industry Representatives
                                    221100
SOC code 17-2081: Environmental Engineers
                                     40.43
                                     84.90
                                     88.33

                                    333100
SOC code 11-9041: Architectural and Engineering Managers
                                     64.51
                                    135.47
                                    140.94

                                    541300
SOC code 17-2081: Environmental Engineers
                                     42.35
                                     88.94
                                     92.53
Project Owners or Operators
                                    541300
SOC code 17-2081: Environmental Engineers
                                     42.35
                                     88.94
                                     92.53

                                    221300
SOC Code 51-8031:  Water and Wastewater Treatment Plant and System Operators
                                     21.25
                                     44.63
                                     46.43

                                    611300
SOC code 17-2081: Environmental Engineers
                                     37.76
                                     79.30
                                     82.50
Other Stakeholders
                                    813900
SOC code 19-4091: Environmental Science and Protection Technicians (For Conservation Non-profit staff, university researchers
                                     25.26
                                     53.05
                                     55.19

      To ensure that the rates accurately reflect the expected rates at the start of this ICR, May 2016 labor rates were estimated by applying an annualized 2% growth factor from the Employment Cost Index to account for increases in wages from May 2014 to May 2016.  This is based on the fact that for both private industry and civilian workers, the Employment Cost Index increased by 2.0 percent in 2015 (see: http://www.bls.gov/news.release/eci.t04.htm). Labor costs across the 3-year time period for this ICR are calculated using labor rates that assume an average 2% increase each year using the May 2016 rates as a starting point.
             Estimating Capital and Operations and Maintenance Costs
      Because this information collection requires respondents only to report information that is already available to them, there are no capital costs. EPA does not expect that the operations and maintenance (O&M) costs of this program will be significant.  The total costs for this information collection are summarized in Table 9 below and are rounded to the nearest dollar.  The total cost values are based on the fully loaded rates that include overhead and growth as shown in Table 8 (and then increased by 2% each year during the 3-year time period for this ICR) and the total burden hours in Table 7.

Table 9: Summary of Respondent Burden  -  Total Cost for SFM AD Inventory (3 Year Period)

                                Respondent Type
                                  NAICS Code
                            Total Burden Cost ($):
                            May 2016  -  April 2019
State Liaison
                                    999200
                                                                        10,024
Industry Representatives
                                    221100
                                                                         1,532

                                    333100
                                                                         4,817

                                    541300
                                                                         3,964
Project Owners or Operators
                                    541300
                                                                        11,799

                                    221300
                                                                        15,676

                                    611300
                                                                         2,146
Other Stakeholders
                                    813900
                                                                           957
TOTAL
                                                                        $50,915

	The total cost for the entire 3-year ICR time period is $50,915.  This represents the total overall cost for the respondent portion of this ICR since there are no capital expenditures or O&M costs.
       6(c)	Estimating Agency Burden and Costs
Following is a summary of the Agency burden associated with each activity, as described in Section 5(a).
 Collect updates/questionnaires and maintain copy of all submitted data
   Clerical: 1 hour per update (updates are annual; 1 hour per year)
 Review the information provided and follow up with respondent if necessary
   Technical: 40 hours per update (updates are annual; 40 hours per year)
 Develop an updated inventory (Year 1)
   Technical: 80 hours (Year 1 only)
 Enter data into the SFM AD Facility Inventory file (Years 2 and 3 only)
   Clerical: 8 hours per update (8 hour per year; Years 2 and 3 only)
 Post SFM AD Facility Inventory data on the EPA website
Technical: 0.25 hours per update (updates are annual; 0.25 hour per year)

Tables 9a and 9b present the estimated total agency burden hours and costs, respectively, for the information collection activities associated with this ICR. The burden hours in Table 9a reflect the entire 3-year time period covered by this ICR. The totals are rounded to the nearest hour.  To obtain an hourly burden estimate for the entire ICR time period, annual time estimates for each relevant labor category as described above were multiplied by the appropriate factor depending on whether the activity will be conducted for one, two or all three years. The totals in Table 9b reflect the associated cost by labor category based on the total burden hours presented in Table 9a.
EPA estimates an average hourly cost using set EPA salary rates for labor plus an additional 60% for overhead.  To derive these estimates, EPA used the "Salary Table 2016 - GS" from the Department of Personnel Management (see: http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/GS_h.pdf).  For purposes of this ICR, EPA assigned staff the following government service levels: 1) Technical Staff - GS-12, Step 5; and 2) Clerical Staff - GS-5, Step 1.  The corresponding salary rates are $33.72 for technical staff and $13.54 for clerical staff. When the 60% overhead is included the corresponding rates are $53.95 for technical staff and $21.66 for clerical staff.  No managerial hours will be spent on implementation of this ICR.

                     Table 9a: Total Agency Burden Hours

Labor Category
                         Total Agency Burden (hours):
                            May 2016  -  April 2019
Technical (GS-12, step 5)
                                      216
Clerical (GS-5, step 1)
                                       4
TOTAL
                                      220

                         Table 9b: Total Agency Cost

Labor Category
                            Total Agency Cost ($):
                            May 2016  -  April 2019

                    Total Agency Cost + 60% Overhead ($):
                            May 2016  -  April 2019
Technical (GS-12, step 5)
                                     7,284
                                    11,654
Clerical (GS-5, step 1)
                                      54
                                      87
TOTAL ($)
                                     7,338
                                    11,741

Table 9b presents the total cost to the Agency as described in Section 5(a). The total agency burden for the relevant ICR time period is 220 hours and the total cost is $11,741.

       6(d)	Estimating the Respondent Universe
The number of respondents for each year of this ICR is expected to gradually increase over time. It is anticipated that the entire number of facilities will increase by approximately 10% per year over the three years of the ICR. Tables 10a and 10b present a summary of the respondent universe by category for the next 3-year ICR period for total hours and total costs, respectively. The burden estimates are based on the total respondent universe.
                    Table 10a: Total Hours (3 Year Period)

                                 Total Hours:
                            May 2016  -  April 2019
AGENCY BURDEN
                                      220
RESPONDENT BURDEN
                                      691
TOTAL BURDEN
                                      911

                    Table 10b: Total Costs (3 Year Period)

                               Total Cost ($):
                            May 2016  -  April 2019
AGENCY COST
                                    11,740
RESPONDENT COST
                                    52,038
O&M/Capital Costs
                                       0
TOTAL COST ($)
                                    63,778

       6(e)	Bottom Line Burden Hours and Costs
Over the 3-year period covered by this ICR, EPA estimates the total respondent burden to be 691 hours and $50,915.  There are no O&M or capital costs. EPA estimates the total Agency burden to be 220 hours and $11,741. The annual respondent burden and cost, averaged over the three-year period, is 231 hours and $16,972, respectively.  There are no O&M or capital costs. The annual Agency burden and cost, averaged over the three-year period, is 73 hours and $3,914.  The total estimated burden and cost is 304 hours and $20,886 per year.
       6(f)	Reasons for Change in Burden
The change in burden is not applicable in this case since this is a new ICR.
       6(g)	Burden Statement
The overall annual public reporting and recordkeeping burden for this collection of information is estimated to average approximately 30 minutes and $74 per respondent.
Burden means the total time, effort or financial resources expended by persons to generate, maintain, retain and disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
      To comment on the agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID EPA-HQ RCRA-2015-0836, which is available for online viewing at www.regulations.gov, or in person viewing at the Resource Conservation and Recovery Act Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA/DC Public Reading Room is open from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is<PHONE_NUMBER>, and the telephone number for the Resource Conservation and Recovery Act Docket is<PHONE_NUMBER>.
	An electronic version of the public docket is available at www.regulations.gov. This site can be used to submit or view public comments, access the index listing of the contents of the public docket and access those documents in the public docket that are available electronically. In the system, select "search," then key in the Docket ID Number identified above. Alternatively, send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Please include the EPA Docket ID No. EPA-HQ RCRA-2015-0836 in any correspondence.