[Federal Register Volume 77, Number 117 (Monday, June 18, 2012)]
[Notices]
[Pages 36333-36336]
[FR Doc No: 2012-14745]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0162]

Qualification of Drivers; Exemption Applications; Diabetes
Mellitus

AGENCY: Federal Motor Carrier Safety Administration (FMCSA).

ACTION: Notice of applications for exemption from the diabetes mellitus
requirement; request for comments.

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SUMMARY: FMCSA announces receipt of applications from 17 individuals
for exemption from the prohibition against persons with insulin-treated
diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in
interstate commerce. If granted, the exemptions would enable these
individuals with ITDM to operate CMVs in interstate commerce.

DATES: Comments must be received on or before July 18, 2012.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket No. FMCSA-2012-0162 using any of the
following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket numbers for this notice. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading below
for further information.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Federal Docket Management System (FDMS) is
available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the FDMS published in
the Federal Register on January 17, 2008 (73 FR 3316), or you may visit
http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the Federal Motor Carrier Safety Regulations for a 2-year period
if it finds ``such exemption would likely achieve a level of safety
that is equivalent to or greater than the level that would be achieved
absent such exemption.'' The statute also allows the Agency to renew
exemptions at the end of the 2-year period. The 17 individuals listed
in this notice have recently requested such an exemption from the
diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers
of CMVs in interstate commerce. Accordingly, the Agency will evaluate
the qualifications of each applicant to determine whether granting the
exemption will achieve the required level of safety mandated by the
statutes.

Qualifications of Applicants

Bruce R. Bennett

    Mr. Bennett, age 48, has had ITDM since 2011. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Bennett understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Bennett meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2011 and certified that he does not have diabetic retinopathy.
He holds a Class A Commercial Driver's License (CDL) from Minnesota.

Stephen W. Best

    Mr. Best, 46, has had ITDM since 2012. His endocrinologist examined
him in 2012 and certified that he has had no severe hypoglycemic
reactions resulting in loss of consciousness, requiring the assistance
of another person, or resulting in impaired cognitive function that
occurred without warning in the past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in the last 5 years. His
endocrinologist certifies that Mr. Best understands diabetes management
and monitoring, has stable control of his diabetes using insulin, and
is able to drive a CMV safely. Mr. Best meets the vision requirements
of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and
certified that he does not have diabetic retinopathy. He holds a Class
A CDL from Pennsylvania.

Steven L. Cornwell

    Mr. Cornwell, 54, has had ITDM since 2011. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Cornwell understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Cornwell meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2012 and certified that he does not have diabetic retinopathy.
He holds a Class B CDL from Iowa.

Steven D. Hancock

    Mr. Hancock, 46, has had ITDM since 2007. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Hancock understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Hancock meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2012 and certified that he does not have diabetic retinopathy.
He holds a Class A CDL from Indiana.

Michael A. Hendrickson

    Mr. Hendrickson, 38, has had ITDM since 2010. His endocrinologist
examined him in 2011 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Hendrickson understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Hendrickson meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2011 and certified that he does not have diabetic retinopathy.
He holds a Class A CDL from Oregon.

James B. Hills

    Mr. Hills, 61, has had ITDM since 2011. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Hills understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Hills meets the vision
requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him
in 2011 and certified that he has stable nonproliferative diabetic
retinopathy. He holds a Class A CDL from Kansas.

Charles Keegan, Jr.

    Mr. Keegan, 53, has had ITDM since 2009. His endocrinologist
examined him in 2011 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Keegan understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely.
    Mr. Keegan meets the vision requirements of 49 CFR 391.41(b)(10).
His ophthalmologist examined him in 2012 and certified that he does not
have diabetic retinopathy. He holds a Class A CDL from New Jersey.

Londell W. Luther

    Mr. Luther, 32, has had ITDM since 1990. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Luther understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Luther meets the vision
requirements of 49 CFR 391.41(b)(10).

His ophthalmologist examined him in 2012 and certified that he has
stable nonproliferative diabetic retinopathy. He holds a Class A CDL
from Maryland.

Darrell L. Meadows

    Mr. Meadows, 68, has had ITDM since 2007. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Meadows understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Meadows meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2012 and certified that he does not have diabetic retinopathy.
He holds a Class B operator's license from Texas.

John P. Miller

    Mr. Miller, 60, has had ITDM since 2012. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Miller understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Miller meets the vision
requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him
in 2012 and certified that he does not have diabetic retinopathy. He
holds a Class A CDL from Oklahoma.

Gary J. Rice

    Mr. Rice, 67, has had ITDM since 2010. His endocrinologist examined
him in 2012 and certified that he has had no severe hypoglycemic
reactions resulting in loss of consciousness, requiring the assistance
of another person, or resulting in impaired cognitive function that
occurred without warning in the past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in the last 5 years. His
endocrinologist certifies that Mr. Rice understands diabetes management
and monitoring, has stable control of his diabetes using insulin, and
is able to drive a CMV safely. Mr. Rice meets the vision requirements
of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and
certified that he does not have diabetic retinopathy. He holds a Class
A CDL from Vermont.

Jose A. Rosario

    Mr. Rosario, 35, has had ITDM since 2011. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Rosario understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Rosario meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2012 and certified that he does not have diabetic retinopathy.
He holds a Class D operator's license from New York.

Jordan D. Seeburger

    Mr. Seeburger, 24, has had ITDM since 1989. His endocrinologist
examined him in 2011 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Seeburger understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Seeburger meets the
vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist
examined him in 2012 and certified that he does not have diabetic
retinopathy. He holds a Class C operator's license from Pennsylvania.

Allyn E. Smith

    Mr. Smith, 65, has had ITDM since 1998. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Smith understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Smith meets the vision
requirements of 49 CFR 391.41(b)(10). His optometrist examined him in
2012 and certified that he does not have diabetic retinopathy. He holds
a Class A CDL from South Dakota.

Hayden P. Thielen

    Mr. Thielen, 21, has had ITDM since 2001. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Thielen understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Thielen meets the
vision requirements of 49 CFR 391.41(b)(10). His optometrist examined
him in 2012 and certified that he does not have diabetic retinopathy.
He holds a Class A CDL from Minnesota.

Larry J. Vanzalen

    Mr. Vanzalen, 61, has had ITDM since 2012. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Vanzalen understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Vanzalen meets the
vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist
examined him in 2012 and certified that he does not have diabetic
retinopathy. He holds a Class A CDL from Michigan.

Jason R. Zeorian

    Mr. Zeorian, 34, has had ITDM since 2012. His endocrinologist
examined him in 2012 and certified that he has had no severe
hypoglycemic reactions resulting in loss of consciousness, requiring
the assistance of another person, or resulting in impaired cognitive
function that occurred without warning in the past 12 months and no
recurrent (2 or more) severe hypoglycemic episodes in the last 5 years.
His endocrinologist certifies that Mr. Zeorian understands diabetes
management and monitoring, has stable control of his diabetes using
insulin, and is able to drive a CMV safely. Mr. Zeorian meets the
vision

requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him
in 2012 and certified that he does not have diabetic retinopathy. He
holds a Class A CDL from Nebraska.

Request for Comments

    In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests
public comment from all interested persons on the exemption petitions
described in this notice. We will consider all comments received before
the close of business on the closing date indicated in the date section
of the notice.
    FMCSA notes that section 4129 of the Safe, Accountable, Flexible
and Efficient Transportation Equity Act: A Legacy for Users requires
the Secretary to revise its diabetes exemption program established on
September 3, 2003 (68 FR 52441).\1\ The revision must provide for
individual assessment of drivers with diabetes mellitus, and be
consistent with the criteria described in section 4018 of the
Transportation Equity Act for the 21st Century (49 U.S.C. 31305).
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    \1\ Section 4129(a) refers to the 2003 notice as a ``final
rule.'' However, the 2003 notice did not issue a ``final rule'' but
did establish the procedures and standards for issuing exemptions
for drivers with ITDM.
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    Section 4129 requires: (1) Elimination of the requirement for 3
years of experience operating CMVs while being treated with insulin;
and (2) establishment of a specified minimum period of insulin use to
demonstrate stable control of diabetes before being allowed to operate
a CMV.
    In response to section 4129, FMCSA made immediate revisions to the
diabetes exemption program established by the September 3, 2003 notice.
FMCSA discontinued use of the 3-year driving experience and fulfilled
the requirements of section 4129 while continuing to ensure that
operation of CMVs by drivers with ITDM will achieve the requisite level
of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
    Section 4129(d) also directed FMCSA to ensure that drivers of CMVs
with ITDM are not held to a higher standard than other drivers, with
the exception of limited operating, monitoring and medical requirements
that are deemed medically necessary.
    The FMCSA concluded that all of the operating, monitoring and
medical requirements set out in the September 3, 2003 notice, except as
modified, were in compliance with section 4129(d). Therefore, all of
the requirements set out in the September 3, 2003 notice, except as
modified by the notice in the Federal Register on November 8, 2005 (70
FR 67777), remain in effect.

    Issued on: June 11, 2012.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2012-14745 Filed 6-15-12; 8:45 am]
BILLING CODE P


[Federal Register Volume 87, Number 204 (Monday, October 24, 2022)]
[Rules and Regulations]
[Pages 64165-64167]
[FR Doc No: 2022-22357]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0569; FRL-10136-02-R4]

Air Plan Approval; TN; Updates to References to Appendix W
Modeling Guideline

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the State of Tennessee
on April 9, 2021. Specifically, EPA is approving updates to the
incorporation by reference of Federal guidelines on air quality
modeling in the Tennessee SIP. EPA is also converting the previous
conditional approval regarding infrastructure SIP prevention of
significant deterioration (PSD) elements for the 2015 ozone national
ambient air quality standards (NAAQS) for Tennessee to a full approval.
EPA is approving this revision pursuant to the Clean Air Act (CAA or
Act).

DATES: This rule is effective November 23, 2022.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2021-0569. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Josue Ortiz Borrero, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-8085. Mr. Ortiz Borrero can also be reached via electronic
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 1, 2015, EPA promulgated revised primary and secondary
NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts
per million (ppm) to a new more protective level of 0.070 ppm. See 80
FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA,
states are required to submit SIP revisions meeting the applicable
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS or within such shorter period as EPA may
prescribe. Section 110(a)(2) requires states to address basic SIP
elements, such as requirements for monitoring, basic program
requirements, and legal authority, that are designed to assure
attainment and maintenance of the NAAQS. This type of SIP is commonly
referred to as an ``infrastructure SIP'' or ``iSIP.'' States were
required to submit such SIP revisions for the 2015 8-hour ozone NAAQS
to EPA no later than October 1, 2018.\1\
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    \1\ In infrastructure SIP submissions, states generally certify
evidence of compliance with sections 110(a)(1) and (2) of the CAA
through a combination of state regulations and statutes, some of
which have been incorporated into the SIP. In addition, certain
federally approved, non-SIP regulations may also be appropriate for
demonstrating compliance with sections 110(a)(1) and (2).
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    On September 13, 2018, Tennessee met the requirement to submit an
iSIP for the 2015 8-hour ozone NAAQS by the October 1, 2018, deadline.
Through previous rulemakings, EPA approved most of the infrastructure
SIP elements for the 2015 ozone NAAQS for Tennessee.2 3
However, regarding the PSD elements of section 110(a)(2)(C),
110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) (herein referred to as
element C, Prong 3, and element J, respectively), EPA conditionally
approved \4\ these portions of Tennessee's iSIP submission because of
outdated references to the Federal guidelines on air quality modeling
found in appendix W of 40 CFR part 51.\5\ As previously mentioned, all
other applicable iSIP requirements for Tennessee for the 2015 8-hour
ozone NAAQS were addressed or will be addressed in separate
rulemakings.
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    \2\ EPA approved most elements for Tennessee, except for the
Interstate Transport provisions (Prongs 1 and 2), and the PSD
provisions (element C, Prong 3, and J), on December 26, 2019. See 84
FR 70895.
    \3\ The Interstate Transport provisions (Prongs 1 and 2) for
Tennessee have been proposed for disapproval, but that action has
not yet been finalized. See 87 FR 9545 (February 22, 2022).
    \4\ Under CAA section 110(k)(4), EPA may conditionally approve a
SIP revision based on a commitment from a state to adopt specific
enforceable measures by a date certain, but not later than one year
from the date of approval. If the state fails to meet the commitment
within one year of the final conditional approval, the conditional
approval will be treated as a disapproval and EPA will issue a
finding of disapproval.
    \5\ For the State of Tennessee, EPA conditionally approved the
PSD provisions of element C, Prong 3, and element J, on April 9,
2020. See 85 FR 19888.
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    For elements C and J to be approved for PSD, a state needs to
demonstrate that its SIP meets the PSD-related infrastructure
requirements of these sections. These requirements are met if the
state's implementation plan includes a PSD program that meets current
Federal requirements. Prong 3 is also approvable when a state's
implementation plan contains a fully approved, up-to-date PSD program.
EPA's PSD regulations at 40 CFR 51.166(l) require that modeling be
conducted in accordance with appendix W, Guideline on Air Quality
Models. EPA promulgated the most current version of appendix W on
January 17, 2017 (82 FR 5182). Therefore, for the iSIP PSD elements for
the 2015 8-hour ozone NAAQS to be approved, the PSD regulations in the
SIP must reference the most current version of appendix W.
    As discussed in EPA's April 9, 2020, conditional approval of the
2015 ozone iSIP PSD elements for Tennessee, the State's SIP contained
outdated references to appendix W. The State committed to updating the
outdated references and submitting a SIP revision within one year of
EPA's final rule conditionally approving these PSD elements.
Accordingly, Tennessee was required to submit a SIP revision by April
9, 2021. Tennessee met its commitment by submitting a SIP revision to
correct the deficiencies before the deadline.
    In a notice of proposed rulemaking (NPRM), published on August 24,
2022 (87 FR 51944), EPA proposed to approve changes to the Tennessee
SIP and to convert the conditional approval to a full approval for
Tennessee regarding element C, Prong 3, and element J, for the 2015 8-
hour ozone NAAQS infrastructure SIP. The details of Tennessee's
submission and the rationale for EPA's action are explained in the
NPRM. Comments on the August 24, 2022, NPRM were due on or before
September 23, 2022. EPA did not receive any comments on the August 24,
2022, NPRM.

II. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, and as discussed in Section I of this preamble, EPA is finalizing
the incorporation by reference of Tennessee Rules 1200-03-09-.01,
Construction Permits,\6\ and 1200-03-21-.01, General Alternate Emission
Standard, state effective on April 22, 2021, which address outdated
references to EPA's modeling guidelines in order to meet PSD iSIP
requirements for the 2015 8-hour ozone NAAQS. EPA has made, and will
continue to make, these materials generally available through
www.regulations.gov and at the EPA Region 4 office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
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    \6\ EPA is not incorporating the April 22, 2021, state effective
version of the following provisions: 1200-03-09-.01(1)(a); 1200-03-
09-.01(1)(d); 1200-03-09-.01(1)(j); 1200-03-09-.01(4)(b)24(XVII);
1200-03-09-.01(4)(b)29; 1200-03-09-.01(4)(b)47(i)(IV); 1200-03-
09-.01(4)(j)3; 1200-03-09-.01(5)(b)1(x)(VII); the PM2.5
annual and 24-hour averaging time as part of subparagraph 1200-03-
09-.01(5)(b)(1)(xix); and 1200-03-09-.01(5)(b)2(iii)(II).
    In the August 24, 2022, NPRM, EPA also proposed to exclude 1200-
03-09-.01(1)(h); 1200-03-09-.01(4)(a)7(vi); 1200-03-
09-.01(4)(l)2(iii); 1200-03-09-.01(5)(b)2(viii)(III); and 1200-03-
09-.01(5)(b)3(i)(III) from the incorporation of the April 22, 2021,
state effective version. See 87 FR 51946. Subsequent to the NPRM,
EPA finalized approval of the version of these five provisions found
in the April 22, 2021, state effective rule (see 87 FR 59322,
September 30, 2022) and incorporated them by reference. EPA is
therefore not finalizing the exclusion of these provisions from the
incorporation by reference of Rule 1200-03-09-.01 in this action.
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III. Final Action

    EPA is approving changes to the Tennessee SIP and converting the
conditional approval for element C, Prong 3, and element J for the 2015
8-hour ozone Infrastructure SIP to a full approval. Specifically, EPA
is approving changes to Tennessee Rules 1200-03-09-.01, Construction
Permits, and 1200-03-21-.01, General Alternate Emission Standard.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this final action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 23, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2) of the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

Daniel Blackman,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart RR--Tennessee

Sec.  52.2219  [Removed and Reserved]

0
2. Remove and reserve Sec.  52.2219.

0
3. In Sec.  52.2220:
0
a. In paragraph (c), amend Table 1 by revising the entries for
``Section 1200-3-9-.01'' and ``Section 1200-3-21-.01''.
0
b. In paragraph (e), amend the table by adding at the end an entry for
``110(a)(1) and (2) Infrastructure Requirements for the 2015 8-Hour
Ozone NAAQS''.
    The revisions and addition read as follows:

Sec.  52.2220  Identification of plan.

* * * * *

    (c) * * *

                                                       Table 1--EPA Approved Tennessee Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           State
              State citation                     Title/subject        effective date      EPA approval date                    Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Section 1200-3-9-.01.....................  Construction Permits.....       4/22/2021  10/24/2022, [Insert        Except for 1200-03-09-.01(1)(a),
                                                                                citation of publication].  (1)(d), (4)(b)24(i)(XVII), (4)(b)29,
                                                                                (4)(b)47(i)(IV), (4)(j)3, (5)(b)1(x)
                                                                                (VII), and (5)(b)2(iii)(II), which
                                                                                have a state effective date of 4/24/
                                                                                2013; 1200-3-9-.01(1)(j), which is not
                                                                                incorporated into the SIP; and the
                                                                                PM2.5 SILs (found in 1200-3-9-
                                                                                .01(5)(b)1(xix)) and the SMC (found in
                                                                                1200-3-9-.01(4)(d)6(i)(III))
                                                                                provisions.

                                                                      * * * * * * *
Section 1200-3-21-.01....................  General Alternate               4/22/2021  10/24/2022, [Insert
                                            Emission Standard.                         citation of
                                                                                publication]..

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP     Applicable geographic        State
           provision              or nonattainment area   effective date   EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
110(a)(1) and (2)                Tennessee..............        4/9/2021  10/24/2022,         Addressing the PSD
 Infrastructure Requirements                                               [Insert citation    requirements of
 for the 2015 8-Hour Ozone                                                 of publication].    Section
 NAAQS.                                                                                110(a)(2)(C),
                                                                                (D)(i)(II) (Prong
                                                                                3), and (J).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2022-22357 Filed 10-21-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Notices]
[Pages 28645-28650]
[FR Doc No: 2023-09446]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97403; File No. SR-FINRA-2023-008]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend
FINRA Rules 1015, 9261, 9341, 9524, 9830 and Funding Portal Rule 900
(Code of Procedure) To Permit Hearings Under Those Rules To Be
Conducted by Video Conference

April 28, 2023.
    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
on April 26, 2023, the Financial Industry Regulatory Authority, Inc.
(``FINRA'') filed with the Securities and Exchange Commission (``SEC''
or ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by FINRA. 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

    FINRA is proposing to amend FINRA Rules 1015, 9261, 9341, 9524 and
9830 and Funding Portal Rule 900 to allow for video conference hearings
before the Office of Hearing Officers (``OHO'') and the National
Adjudicatory Council (``NAC'') under specified conditions.
    The text of the proposed rule change is available on FINRA's
website at http://www.finra.org, at the principal office of FINRA 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, FINRA 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. FINRA 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
    Due to the COVID-19 global health crisis, FINRA administratively
postponed in-person hearings for over six months beginning in March of
2020, which resulted in an expanding backlog of cases that could have
compromised FINRA's ability to provide timely adjudicatory processes
and fulfill its statutory obligations to protect investors and maintain
fair and orderly markets. To address that backlog and mitigate the
consequences of a stalled adjudicatory system, FINRA adopted temporary
rules that allow OHO and the NAC to order, without a motion, hearings
to proceed by video conference based on public health risks related to
COVID-19.\3\ These were extended several times due to the continuing
public health risks and logistical challenges related to COVID-19,
including whether hearing participants could safely travel and abide by
state or local quarantine requirements.\4\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 88917 (May 20,
2020), 85 FR 31832 (May 27, 2020) (Notice of Filing and Immediate
Effectiveness of File No. SR-FINRA-2020-015) and Securities Exchange
Act Release No. 89737 (September 2, 2020), 85 FR 55712 (September 9,
2020) (Notice of Filing and Immediate Effectiveness of File No. SR-
FINRA-2020-027).
    \4\ See Securities Exchange Act Release No. 90619 (December 9,
2020), 85 FR 81250 (December 15, 2020) (Notice of Filing and
Immediate Effectiveness of File No. SR-FINRA-2020-042); Securities
Exchange Act Release No. 91495 (April 7, 2021), 86 FR 19306 (April
13, 2021) (Notice of Filing and Immediate Effectiveness of File No.
SR-FINRA-2021-006); Securities Exchange Act Release No. 92685
(August 17, 2021), 86 FR 47169 (August 23, 2021) (Notice of Filing
and Immediate Effectiveness of File No. SR-FINRA-2021-019);
Securities Exchange Act Release No. 93758 (December 13, 2021), 86 FR
71695 (December 17, 2021) (Notice of Filing and Immediate
Effectiveness of File No. SR-FINRA-2021-031); Securities Exchange
Act Release No. 94430 (March 16, 2022), 87 FR 16262 (March 22, 2022)
(Notice of Filing and Immediate Effectiveness of File No. SR-FINRA-
2022-004); Securities Exchange Act Release No. 95281 (July 14,
2022), 87 FR 43335 (July 20, 2022) (Notice of Filing and Immediate
Effectiveness of File No. SR-FINRA-2022-018); Securities Exchange
Act Release No. 96107 (October 19, 2022), 87 FR 64526 (October 25,
2022) (Notice of Filing and Immediate Effectiveness of File No. SR-
FINRA-2022-029); and Securities Exchange Act Release No. 96746
(January 25, 2023), 88 FR 6346 (January 31, 2023) (Notice of Filing
and Immediate Effectiveness of File No. SR-FINRA-2023-001); see also
supra note 3.
---------------------------------------------------------------------------

    FINRA is proposing to make the temporary amendments regarding video
conference hearings permanent, with some modifications that would allow
for the use of video conference for reasons in addition to COVID-19.\5\
The use of

video conference technology in OHO and NAC hearings under the temporary
amendments has demonstrated that video is an effective and efficient
alternative to in-person hearings.\6\ FINRA has used high quality,
secure and user-friendly technology to allow for hearings conducted by
video conference to parallel the experience of conducting hearings in
person.\7\ This technology was crucial in enabling OHO and the NAC to
timely resolve pending cases when it was unsafe to conduct hearings in
person.
---------------------------------------------------------------------------

    \5\ For ease of reference in this filing, FINRA refers to the
pre-pandemic rules as ``original rules'' and to the temporary
changes to the original rules as ``temporary amendments.''
    \6\ Since the temporary amendments were implemented, OHO and the
NAC have conducted numerous hearings by video conference. As of
March 31, 2023, OHO has conducted 18 disciplinary hearings by video
conference (decisions have been issued in all but one of these
cases). Also, as of March 31, 2023, the NAC, through the relevant
Subcommittee, has conducted 19 oral arguments by video conference in
connection with appeals of FINRA disciplinary proceedings pursuant
to FINRA Rule 9341(d), as temporarily amended. Furthermore, the NAC
has conducted via video conference a one-day evidentiary hearing in
a membership application proceeding pursuant to FINRA Rule 1015, as
temporarily amended. The NAC also has conducted via video conference
three evidentiary hearings in eligibility matters pursuant to FINRA
Rule 9524, as temporarily amended.
    \7\ Under the temporary amendments, FINRA has conducted video
conference hearings using Zoom, which has been vetted by FINRA's
information technology staff. The platform and procedures for
conducting video conference hearings under the temporary amendments
are described in SR-FINRA-2020-027, supra note 3.
---------------------------------------------------------------------------

    FINRA believes that the use of video conference technology has
improved FINRA's operations during the COVID-19 pandemic, and the
proposed rule change will continue to improve and modernize FINRA's
operations so that parties, panelists, and FINRA staff may proceed
expeditiously by video conference in the event of certain
circumstances, including where unforeseen events make appearing in
person difficult or impracticable. As described below, impracticability
is intended to account for an uncommon situation or extraordinary
circumstance.
Background
    OHO conducts hearings in disciplinary proceedings \8\ and hearings
for temporary and permanent cease and desist orders (``TCDOs'' and
``PCDOs'').\9\ When orders in disciplinary proceedings are appealed,
the NAC holds hearings on oral argument.\10\ The NAC also conducts
hearings in membership proceedings,\11\ eligibility proceedings,\12\
and Funding Portal eligibility proceedings.\13\
---------------------------------------------------------------------------

    \8\ See FINRA Rule 9261. The FINRA Rule 9200 Series sets forth
the procedures for disciplinary proceedings initiated by the
Department of Enforcement against any FINRA member or associated
person for alleged violation of any rule, regulation, or statutory
provision that FINRA has jurisdiction to enforce, including the
federal securities laws and the regulations thereunder.
    \9\ See FINRA Rule 9830. The FINRA Rule 9800 Series sets forth
the procedures for TCDO and PCDO proceedings. These provide a
mechanism to take necessary remedial action against a member or
associated person where there is a significant risk that the alleged
misconduct could cause continuing harm to the investing public, if
not addressed expeditiously.
    \10\ See FINRA Rule 9341. The FINRA Rule 9300 Series sets forth
the procedures for review of disciplinary proceedings by the NAC.
    \11\ See FINRA Rule 1015. The FINRA Rule 1000 Series governs,
among other things, the process for (i) applying for FINRA
membership; (ii) FINRA members to seek approval of a change in
ownership, control or business operations, and (iii) an applicant to
request that the NAC review a FINRA decision rendered under the Rule
1000 Series.
    \12\ See FINRA Rule 9524. The FINRA Rule 9520 Series sets forth
the procedures for eligibility proceedings and review of those
proceedings by the NAC and FINRA Board.
    \13\ See FINRA Funding Portal Rule 900. Funding portal members
are subject to the FINRA Rule 9000 Series, except for the FINRA Rule
9520 Series, FINRA Rule 9557, FINRA Rule 9561, and the FINRA Rule
9700 Series and specified provisions, as set forth under Funding
Portal Rule 900, written specifically for funding portals. See
Securities Exchange Act Release No. 76970 (January 22, 2016), 81 FR
4931 (January 28, 2016) (Order Approving File No. SR-FINRA-2015-
040). Paragraph (b) of Funding Portal Rule 900 was established as a
streamlined version of the FINRA Rule 9520 Series and sets forth the
procedures for funding portal eligibility proceedings. Although
paragraph (b) was not temporarily amended, FINRA includes it in this
filing so that the procedures for funding portal eligibility
proceedings are aligned with eligibility proceedings under the FINRA
Rule 9520 Series. The proposed rule change would allow for both of
those types of hearings to be conducted by video conference.
---------------------------------------------------------------------------

    Under the original rules, such hearings were generally conducted in
person.\14\ The temporary amendments give OHO and the NAC authority
\15\ to conduct hearings, in whole or in part, by video conference if
warranted by the current public health risks presented by an in-person
hearing.\16\ Since 2020, such public health risks have related to the
COVID-19 pandemic.
---------------------------------------------------------------------------

    \14\ Telephonic testimony and hearings are explicitly permitted
in expedited proceedings. See FINRA Rule 9559(d)(5) (expedited
proceedings ``shall be held by telephone conference, unless the
Hearing Officer orders otherwise for good cause shown'').
    \15\ For OHO hearings, the Chief or Deputy Chief Hearing Officer
has such authority; for NAC hearings, the NAC or relevant
Subcommittee has such authority.
    \16\ See supra note 3.
---------------------------------------------------------------------------

    Under the proposed rule change, OHO and the NAC's authority to
order hearings by video conference would extend beyond the public
health risks posed by COVID-19 to other similar situations in which
proceeding in person may endanger the health or safety of the
participants or would be impracticable. For example, appearing in
person may be impracticable in the event of a natural disaster or
terrorist attack that caused travel to be cancelled for a period of
time.
    In addition, the proposed rule change would differ from the
temporary amendments in two respects. First, under the proposed rule
change, OHO and the NAC would also have authority to order hearings to
occur by video conference based on a motion. Second, the proposed rule
change would provide more flexibility for using video conference for
oral arguments in appeals from disciplinary proceedings than for
evidentiary hearings due to the differences between those types of
hearings.\17\ As explained below, the motion requirements and the
standard that the Adjudicator would follow when exercising authority
under the proposed rule change differ somewhat depending on the type of
hearing involved.
---------------------------------------------------------------------------

    \17\ For ease of reference, ``evidentiary hearings'' refers to
hearings conducted before OHO under FINRA Rules 9261 and 9830, and
the NAC under FINRA Rules 1015, 9524, and Funding Portal Rule 900.
``Oral argument'' refers to hearings conducted before the NAC in
appeals from disciplinary proceedings under Rule 9341. See supra
notes 8-13 and accompanying text.
---------------------------------------------------------------------------

    As with the temporary amendments, under the proposed rule change,
in-person hearings will remain the default method for hearings before
OHO and the NAC, and their exercise of authority under the proposed
rule change would be discretionary. In-person hearings may take place
where safe and appropriate.
    FINRA's protocols for conducting hearings by video conference will
be the same as under the temporary amendments. FINRA would, among other
things, use a high quality, secure and user-friendly video conferencing
service and provide thorough instructions, training, and technical
support to all hearing participants.
    The proposed rule changes with respect to evidentiary hearings and
oral argument are discussed, in turn, below.
Evidentiary Hearings Before OHO and the NAC
    For evidentiary hearings, the proposed rule change would give OHO
or the NAC authority to order an evidentiary hearing to occur by video
conference, in whole or in part, if OHO or the NAC determines that
proceeding in person may endanger the health or safety of the
participants or would be impracticable, as described above. OHO and the
NAC would have such authority on their own (i.e., sua sponte).\18\
---------------------------------------------------------------------------

    \18\ OHO and the NAC would have such authority over the
objection of a party. The same is true under the temporary
amendments. See SR-FINRA-2020-027, supra note 3.

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

    In addition, under the proposed rule change, parties could file a
joint motion requesting the hearing to occur, in whole or in part, by
video conference based on a showing of good cause. Due to the nature of
evidentiary hearings, which often occur over multiple days and
generally include numerous documents in evidence and witness testimony,
the proposed rule change would require any motions for a hearing by
video conference to be joined by all parties, and even joint motions
may be denied if the Adjudicator determines that good cause has not
been shown.\19\
---------------------------------------------------------------------------

    \19\ FINRA notes that its current practice is to allow witnesses
in an otherwise in-person hearing to appear by video conference. In
evidentiary hearings, a party may file a motion to offer witness
testimony by telephone or video conference. Further, even prior to
the COVID-19 pandemic, Adjudicators have allowed telephone
participation by witnesses who are unable or unwilling to appear in
person, such as customers over whom FINRA does not have jurisdiction
and therefore cannot compel testimony under FINRA Rule 8210.
---------------------------------------------------------------------------

    Whether acting on its own or based on a joint motion of the
parties, OHO and the NAC would have reasonable discretion to exercise
their authority under the proposed rule change. In deciding whether to
schedule a hearing by video conference, OHO and the NAC could consider
and balance a variety of factors including, for example and without
limitation, a hearing participant's individual health concerns and
access to the connectivity and technology necessary to participate in a
video conference hearing.
Oral Argument Before the NAC
    The proposed rule change would give the NAC authority to order an
oral argument hearing to occur by video conference, in whole or in
part, if it determines that proceeding in person may endanger the
health or safety of the participants or would be impracticable. The NAC
would have such authority on its own.
    In addition, under the proposed rule change, the NAC would have
authority--on its own or on consideration of a motion by any party--to
order oral argument to occur by video conference, in whole or in part,
for other reasons (i.e., reasons not limited to public health, safety
or impracticability). Under such circumstances, an opposing party would
have the opportunity to demonstrate that the hearing should proceed in
person because proceeding by video conference would materially
disadvantage that party. Whether a party has shown material
disadvantage would depend on the facts and circumstances.
Considerations may include, for example and without limitation, case
complexity, the issues on appeal, and whether the respondent is pro se
and desires to appear in person.
    Under the proposed rule change, the NAC would have greater
flexibility to allow oral argument to occur by video conference than
evidentiary hearings, with an additional safeguard for parties who
believe that holding oral argument by video conference would materially
disadvantage them. The proposal as to NAC oral argument thus differs
from the proposal for evidentiary hearings in three respects: (1) it
would give the NAC sua sponte authority to order oral argument hearings
to occur by video conference for reasons other than public health,
safety, or impracticability; (2) it would allow for motions by a single
party rather than joint; and (3) under either of those circumstances, a
party could oppose on grounds that proceeding by video conference would
materially disadvantage that party. These proposed differences are due
to the nature of oral argument hearings, which are typically shorter
than evidentiary hearings in duration (generally two hours or less),
contain no presentation of new documentary evidence or witness
testimony, and are often conducted by counsel.
    Whether acting on its own or based on a motion of a party, the NAC
would have reasonable discretion to exercise its authority under the
proposed rule change. In deciding whether to order an oral argument
hearing by video conference, the NAC could consider and balance a
variety of factors including, for example and without limitation, a
hearing participant's individual health concerns, access to video
conference technology, whether a party has delayed or refused to appear
in person, and whether proceeding by video conference would materially
disadvantage any party.\20\
---------------------------------------------------------------------------

    \20\ FINRA notes that the proposed rule change would impact all
members, including members that are funding portals or have elected
to be treated as capital acquisition brokers (``CABs''), given that
the CAB rule set incorporate the impacted FINRA rules by reference
and that, under the Funding Portal Rules, funding portal members are
subject to the FINRA Rule 9000 Series, with specified exceptions as
set forth under Funding Portal Rule 900. See supra note 13.
---------------------------------------------------------------------------

    If the Commission approves the proposed rule change, FINRA will
announce the effective date of the proposed rule change in a Regulatory
Notice.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\21\ which requires, among
other things, that FINRA 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. FINRA believes that the proposed rule change is also
consistent with Section 15A(b)(8) of the Act,\22\ which requires, among
other things, that FINRA rules provide a fair procedure for the
disciplining of members and persons associated with members.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78o-3(b)(6).
    \22\ 15 U.S.C. 78o-3(b)(8).
---------------------------------------------------------------------------

    FINRA believes that the proposed rule change protects investors and
the public interest by permitting the use of broadly available
technology to allow hearings to proceed by video conference under
certain circumstances. FINRA's disciplinary and eligibility proceedings
and other review processes serve a critical role in providing investor
protection and maintaining fair and orderly markets by, for example,
sanctioning misconduct and preventing further customer harm by members
and associated persons. The proposed rule change would encourage the
prompt resolution of these cases while preserving fair process.
    The proposed rule change promotes efficiency by permitting hearings
to occur by video conference in situations where the hearings would
otherwise be postponed for an uncertain period of time. As discussed,
this occurred in 2020 when in person hearings were postponed for over
six months, resulting in a backlog of cases. COVID-19 necessitated
FINRA to propose the temporary amendments, which were extended due to
the continuing health risks of COVID-19, as well as limitations on
travel, quarantine requirements, and other logistical challenges to
safely conducting hearings in person.\23\ The proposed rule change
further promotes efficiency by giving OHO and the NAC authority to act
quickly if a future unexpected event impaired their ability to conduct
in-person hearings safely.
---------------------------------------------------------------------------

    \23\ See supra notes 3 & 4 and accompanying text.
---------------------------------------------------------------------------

    The proposed rule change also serves to provide a fair procedure
for the disciplining of members and persons associated with members by
allowing hearings to proceed by video conference not only due to public
health or safety reasons, but also at a party or the parties' request
for reasons particular to them. The Adjudicator could allow a hearing
to proceed by video conference in the exercise of reasonable discretion
and subject to procedural safeguards that ensure fairness. For
evidentiary hearings, these safeguards include the requirements that
any motions be joined

by all parties and show good cause. For oral argument, these safeguards
include the ability of any party to oppose an order or motion to
proceed by video conference on grounds that doing so would materially
disadvantage that party.
    Thus, the proposed rule change represents a significant step toward
modernizing FINRA's procedures in a manner that preserves in-person
hearings, but allows for the use of video conference technology under
certain circumstances.

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

    FINRA does not believe that the proposed rule change would result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.
Economic Impact Assessment
    FINRA has undertaken an economic impact assessment, as set forth
below, to analyze the potential economic impacts of the proposed rule
change, including anticipated costs, benefits, and distributional and
competitive effects, relative to the current baseline, and the
alternatives FINRA considered in assessing how best to meet FINRA's
regulatory objectives.
1. Regulatory Need
    FINRA does not have permanent rules that allow for video conference
hearings before OHO and the NAC, even when both parties prefer
proceeding by video conference, or doing so would not materially
disadvantage any party, or when video conference is the only
practicable method. The proposed rule change would create permanent
rules that would allow video conference hearings under some of these
circumstances, with safeguards. The proposed rule change would allow
certain proceedings by video conference where both parties prefer doing
so and show good cause, or where neither party would be materially
disadvantaged. The proposed rule change would also enable FINRA to
respond to serious health, natural disaster, or other unanticipated
events more quickly and adeptly in the future, so that hearings can
proceed on time without the need for long postponements or
cancellations. As discussed above, the use of video conference hearings
for approximately two and a half years has demonstrated that this
technology can efficiently resolve pending cases and effectively
parallel the experience of conducting hearings in person. The proposed
rule change would build on this experience.
2. Economic Baseline
    The economic baseline for the proposed rule change consists of the
original FINRA Rules 1015, 9261, 9341, 9524 and 9830 and Funding Portal
Rule 900. As discussed earlier, these rules govern disciplinary
proceedings before OHO, appeals before the NAC, and other types of
hearings. Under these rules, oral arguments before the NAC and
evidentiary hearings before OHO and the NAC are typically conducted in
person at various venues across the country. Due to the COVID-19
pandemic, FINRA temporarily amended its rules to allow OHO and the NAC
to order, without a motion, evidentiary hearings to proceed by video
conference based on public health risks related to COVID-19. The
temporary amendments also allow oral arguments before the NAC to
proceed by video conference.
    The number of new cases filed in OHO and NAC disciplinary
proceedings and the number of respondents in these proceedings in the
past five years are presented in Table 1 below. The numbers show that
the majority of respondents in OHO filings and NAC appeals consist of
associated persons.

 Table 1--Number of New Cases Filed in OHO and NAC Disciplinary Proceedings and Number of Respondents, 2018-2022
----------------------------------------------------------------------------------------------------------------
                                       2018            2019            2020            2021            2022
----------------------------------------------------------------------------------------------------------------
OHO Disciplinary Proceedings....              43              40              34              32              24
OHO Respondents: Firms Only.....               0               2               2               0               2
OHO Respondents: Associated                   38              35              30              28              20
 Persons Only...................
OHO Respondents: Both Firms and                5               3               2               4               2
 Associated Persons.............
NAC Disciplinary Appeals........              20              16              10              11               6
NAC Respondents: Firms Only.....               1               1               0               1               1
NAC Respondents: Associated                   15              11               8              10               4
 Persons Only...................
NAC Respondents: Both Firms and                4               4               2               0               1
 Associated Persons.............
----------------------------------------------------------------------------------------------------------------

    FINRA has also collected information on the use of video conference
in evidentiary hearings in OHO and NAC proceedings and oral arguments
before the NAC in the past five years. The information is presented in
Table 2 below. The numbers show that no evidentiary hearings before OHO
and the NAC or oral arguments before the NAC proceeded by video
conference in the two years prior to the pandemic starting in 2020,
whereas almost all of those types of hearings proceeded by video
conference after 2020.

     Table 2--Use of Video Conference in OHO and NAC Evidentiary Hearings and NAC Oral Arguments, 2018-2022
----------------------------------------------------------------------------------------------------------------
                                       2018            2019            2020            2021            2022
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Number of Evidentiary                         21              12               8              10               5
 Disciplinary Hearings before
 OHO............................
Number of Evidentiary                          0               0               3               9               5
 Disciplinary Hearings before
 OHO by Video Conference........
Number of Oral Arguments before               15              11              10               4               6
 NAC............................
Number of Oral Arguments before                0               0               9               4               6
 NAC by Video Conference........
Number of Evidentiary Hearings                 6               0               0               1               3
 before NAC.....................
Number of Evidentiary Hearings                 0               0               0               1               3
 before NAC by Video Conference.
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3. Economic Impacts
    The proposed rule change will directly impact current and former
member firms (including members that are funding portals) and their
associated persons. These individuals would be applicants or
respondents in proceedings before OHO and the NAC, including appeals
from disciplinary proceedings. The proposed rule change is also
expected to affect their counsel and other participants, and the
proposed rule change may also affect investors associated with the
matter, and in some cases, investors more generally.
    As described earlier, there have been only a limited number of new
cases or appeals filed annually in relevant OHO and NAC proceedings in
the past five years. Most of these cases or appeals involved only one
respondent. Based on these historical numbers, only a very small
fraction of members and associated persons will likely be affected by
the proposed rule change.
    The primary impact of the proposed rule change would be to reduce
delay in resolving relevant matters in extraordinary circumstances
(e.g., a serious public health situation, natural disaster, or other
unanticipated emergency event), or when the parties jointly move for an
evidentiary hearing to proceed virtually and establish good cause for
doing so, or when neither party would be materially disadvantaged by
holding oral argument by video conference for reasons other than
health, safety or impracticability. Depending on the matter and the
amount of delay that can potentially be avoided, the proposed rule
change may have a significant economic impact on affected parties and
relevant stakeholders.
    Under the baseline, a serious public health situation, natural
disaster, or other unanticipated emergency event may either delay
proceedings, prevent travel, or require parties to consider traveling
and appearing in person despite the elevated risk. As discussed, until
the temporary amendments were in effect, FINRA administratively
postponed hearings for over six months due to concerns about the safety
of conducting hearings in person, travel restrictions, quarantine
requirements, and other logistical challenges.\24\ Where delay may
occur, as it did in 2020, the proposed rule change would allow FINRA to
conduct video conference hearings, thereby reducing delay in resolving
matters before OHO and the NAC. As FINRA's adjudicatory functions are
essential to deterring and providing redress in cases of investor harm,
and for protecting market integrity, reducing delay will broadly
benefit investors and the markets. Members and associated persons may
also benefit from reduced delay in resolving their matters.
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    \24\ See supra notes 3 & 4 and accompanying text.
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    Participants in relevant proceedings who, under the baseline, are
required to travel and attend hearings in person despite elevated risk
will benefit from reduced health and safety risk under the proposed
rule change. By allowing video conference hearings and oral arguments
either by order of the Adjudicator on its own or on motion of the
parties, the proposed rule change would result in reduced travel time
and costs for all participants. The cost reductions may vary depending
on the nature and length of the proceedings, the number of individuals
who must travel, and the distance of the required travel.
    Parties may incur additional costs relative to the pre-pandemic
baseline. These additional costs may arise from technological
challenges such as bandwidth or connectivity issues and concerns
related to presenting arguments and evidence in a virtual environment.
FINRA believes that cost increases will likely be limited for most
parties, after considering the overall positive experience of
conducting video conference evidentiary hearings and appellate oral
arguments under the temporary amendments.
    Parties who are required to participate by video conference under
the proposed rule change and believe that they cannot present their
arguments and evidence as well as in person, may perceive the potential
costs associated with the proposed rule change as large compared with
the potential benefits. They may thus prefer a delayed in-person
hearing under the above circumstances to a video conference hearing.
These potential costs will depend on how Adjudicators define and apply
the ``impracticable'' and ``health or safety'' standards as well as the
``good cause'' and ``materially disadvantage'' standards, among other
factors.
4. Alternatives Considered
    FINRA considered applying the same standards to NAC oral argument
as to evidentiary hearings. Under this alternative, the NAC could order
a scheduled in-person oral argument hearing to occur by video
conference for health, safety or impracticability reasons only, and
when considering a motion, would require the motion to be joined by all
parties and show good cause. Parties who prefer to appear in-person due
to concerns about technical or other difficulties to presenting their
case by video conference may perceive a lower cost from the less
flexible alternative relative to the proposed rule change. This
perceived cost reduction, however, should be limited since the proposed
rule change would allow such parties to oppose an order or motion to
proceed by video conference on grounds that doing so would materially
disadvantage them. Further, any cost reduction relative to the proposed
rule change would likely be bounded because, as discussed, NAC oral
arguments are typically short in duration, contain no presentation of
new evidence, and are often conducted by counsel. The alternative would
also likely lead to more potential delays in resolving appeals of
disciplinary matters. Thus, FINRA believes that the proposed rule
change strikes the appropriate balance between preserving the
efficiencies in OHO and NAC proceedings that were achieved during the
pandemic and ensuring a fair process for parties in evidentiary
hearings and appeals.

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

    Written comments were neither solicited nor received.

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

    Within 45 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 or disapprove 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. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or

     Send an email to [email protected]. Please include
File Number SR-FINRA-2023-008 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-FINRA-2023-008. 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 (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of FINRA. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to File Number SR-FINRA-2023-008 and should be
submitted on or before May 25, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-09446 Filed 5-3-23; 8:45 am]
BILLING CODE 8011-01-P