[Federal Register Volume 83, Number 178 (Thursday, September 13, 2018)]
[Notices]
[Pages 46493-46496]
[FR Doc No: 2018-19898]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2012-N-0294]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Food Contact Substance Notification Program

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA or Agency) is announcing
an opportunity for public comment on the proposed collection of certain
information by the Agency. Under the Paperwork Reduction Act of 1995
(PRA), Federal Agencies are required to publish notice in the Federal
Register concerning each proposed collection of information, including
each proposed extension of an existing collection of information, and
to allow 60 days for public comment in response to the notice. This
notice solicits comments on the information collection associated with
the Food Contact Substance Notification Program.

DATES: Submit either electronic or written comments on the collection
of information by November 13, 2018.

ADDRESSES: You may submit comments as follows. Please note that late,
untimely filed comments will not be considered. Electronic comments
must be submitted on or before November 13, 2018. The https://www.regulations.gov electronic filing system will accept comments until
midnight Eastern Time at the end of November 13, 2018. Comments
received by mail/hand delivery/courier (for written/paper submissions)
will be considered timely if they are postmarked or the delivery
service acceptance receipt is on or before that date.

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2012-N-0294 for ``Agency Information Collection Activities;
Proposed Collection; Comment Request; Food

Contact Substance Notification Program.'' Received comments, those
filed in a timely manner (see ADDRESSES), will be placed in the docket
and, except for those submitted as ``Confidential Submissions,''
publicly viewable at https://www.regulations.gov or at the Dockets
Management Staff between 9 a.m. and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on https://www.regulations.gov.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Domini Bean, Office of Operations,
Food and Drug Administration, Three White Flint North, 10A-12M, 11601
Landsdown St., North Bethesda, MD 20852,<PHONE_NUMBER>,
[email protected].

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

Food Contact Substance Notification Program--21 CFR 170.101, 170.106,
and 171.1

OMB Control Number 0910-0495--Extension

    This information collection supports FDA regulations regarding Food
Contact Substance Notification, as well as associated guidance and
accompanying forms. Section 409(h) of the Federal Food, Drug, and
Cosmetic Act (FD&C Act) (21 U.S.C. 348(h)) establishes a premarket
notification process for food contact substances. Section 409(h)(6) of
the FD&C Act defines a ``food contact substance'' as ``any substance
intended for use as a component of materials used in manufacturing,
packing, packaging, transporting, or holding food if such use is not
intended to have any technical effect in such food.'' Section 409(h)(3)
of the FD&C Act requires that the notification process be used for
authorizing the marketing of food contact substances except when: (1)
We determine that the submission and premarket review of a food
additive petition (FAP) under section 409(b) of the FD&C Act is
necessary to provide adequate assurance of safety or (2) we and the
manufacturer or supplier agree that an FAP should be submitted. Section
409(h)(1) of the FD&C Act requires that a notification include: (1)
Information on the identity and the intended use of the food contact
substance and (2) the basis for the manufacturer's or supplier's
determination that the food contact substance is safe under the
intended conditions of use.
    Sections 170.101 and 170.106 of FDA's regulations (21 CFR 170.101
and 170.106) specify the information that a notification must contain
and require that: (1) A food contact substance notification (FCN)
includes Form FDA 3480 and (2) a notification for a food contact
substance formulation includes Form FDA 3479. These forms serve to
summarize pertinent information in the notification. The forms
facilitate both preparation and review of notifications because the
forms will serve to organize information necessary to support the
safety of the use of the food contact substance. The burden of filling
out the appropriate form has been included in the burden estimate for
the notification.
    Currently, interested persons transmit an FCN submission to the
Office of Food Additive Safety in the Center for Food Safety and
Applied Nutrition using Form FDA 3480 whether it is submitted in
electronic or paper format. We estimate that the amount of time for
respondents to complete Form FDA 3480 will continue to be the same.
    In addition to its required use with FCNs, Form FDA 3480 is
recommended to be used to organize information within a Pre-
notification Consultation or Master File submitted in support of an FCN
according to the items listed on the form. Master Files can be used as
repositories for information that can be referenced in multiple
submissions to FDA, thus minimizing paperwork burden for food contact
substance authorizations. We estimate that the amount of time for
respondents to complete the Form FDA 3480 for these types of
submissions is 0.5 hours.
    FDA recommends using Form FDA 3480A for each submission of
additional information (i.e., amendment) to an FCN submission currently
under Agency review. Form FDA 3480A helps the respondent organize the
submission to focus on the information needed for FDA's safety review.
    FDA's guidance documents entitled: (1) ``Preparation of Food
Contact Notifications: Administrative,'' (2) ``Preparation of Food
Contact Notifications and Food Additive

Petitions for Food Contact Substances: Chemistry Recommendations,'' and
(3) ``Preparation of Food Contact Notifications for Food Contact
Substances: Toxicology Recommendations'' provide assistance to industry
regarding the preparation of an FCN and a petition for a food contact
substances (FCSs). FDA has also developed a draft guidance entitled,
``Preparation of Food Contact Notifications for Food Contact Substances
in Contact with Infant Formula and/or Human Milk.'' Once finalized, the
guidance will provide our current thinking on how to prepare an FCN for
FDA review and evaluation of the safety of FCSs used in contact with
infant formula and/or human milk. These guidances are available at
https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/IngredientsAdditivesGRASPackaging/default.htm.
    Section 171.1 of FDA's regulations (21 CFR 171.1) specifies the
information that a petitioner must submit in order to: (1) Establish
that the proposed use of an indirect food additive is safe and (2)
secure the publication of an indirect food additive regulation in parts
175 through 178 (21 CFR parts 175 through 178). Parts 175 through 178
describe the conditions under which the additive may be safely used.
    In addition, FDA's guidance entitled ``Use of Recycled Plastics in
Food Packaging: Chemistry Considerations,'' provides assistance to
manufacturers of food packaging in evaluating processes for producing
packaging from post-consumer recycled plastic. The recommendations in
the guidance address the process by which manufacturers certify to us
that their plastic products are safe for food contact.
    Description of Respondents: The respondents to this information
collection are manufacturers of food contact substances sold in the
United States. Respondents are from the private sector (for-profit
businesses).
    FDA estimates the burden of this collection of information as
follows:

                                                     Table 1.--Estimated Annual Reporting Burden \1\
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                                                                                Number of
                                                                                Number of     responses      Total       Average
            21 CFR section; activity                         FDA form No.               respondents       per         annual     burden per  Total hours
                                                                                respondent   responses     response
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170.106 \2\ (Category A).......................  FDA 3479                                         10            2           20            2           40
170.101 3,7 (Category B).......................  FDA 3480                                          6            1            6           25          150
170.101 4,7 (Category C).......................  FDA 3480                                          6            2           12          120        1,440
170.101 5,7 (Category D).......................  FDA 3480                                         42            2           84          150       12,600
170.101 6,7 (Category E).......................  FDA 3480                                         38            1           38          150        5,700
Pre-notification Consultation or Master File     FDA 3480                                        190            1          190         *0.5           95
 (concerning a food contact substance).8
Amendment to an existing notification            FDA 3480A                                       100            1          100         *0.5           50
 (170.101), amendment to a Pre-notification
 Consultation, or amendment to a Master File
 (concerning a food contact substance).9
171.1 Indirect Food Additive Petitions.........  N/A                                               1            1            1       10,995       10,995
Use of Recycled Plastics in Food Packaging:      N/A                                              10            1           10           25          250
 Chemistry Considerations.
Preparation of Food Contact Notifications for    ...................................               2            1            2            5           10
 Food Contact Substances in Contact with Infant
 Formula and/or Human Milk.
                                                                                -------------------------------------------------------------------
    Total......................................  ...................................  ..............  ...........  ...........  ...........       31,330
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* 30 minutes.
\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.
\2\ Notifications for food contact substance formulations and food contact articles. These notifications require the submission of Form FDA 3479
  (``Notification for a Food Contact Substance Formulation'') only.
\3\ Duplicate notifications for uses of food contact substances.
\4\ Notifications for uses that are the subject of exemptions under 21 CFR 170.39 and very simple food additive petitions.
\5\ Notifications for uses that are the subject of moderately complex food additive petitions.
\6\ Notifications for uses that are the subject of very complex food additive petitions.
\7\ These notifications require the submission of Form FDA 3480.
\8\ These notifications recommend the submission of Form FDA 3480.
\9\ These notifications recommend the submission of Form FDA 3480A.

    The estimates are based on our current experience with the Food
Contact Substance Notification Program and informal communication with
industry. Our estimated burden for the information collection reflects
an overall increase of 10 hours and a corresponding increase of 2
responses from the currently approved burden. We attribute this
adjustment to reviewing and submitting FCNs consistent to the draft
guidance entitled, ``Preparation of Food Contact Notifications for Food
Contact Substances in Contact with Infant Formula and/or Human Milk.''
    Beginning in row 1, we estimate 10 respondents will submit 2
notifications annually for food contact substance formulations (Form
FDA 3479), for a total of 20 responses. We calculate a reporting burden
of 2 hours per response, for a total of 40 hours. In row 2 we estimate
six respondents. We believe the hourly burden for preparing these
notifications will primarily consist of the manufacturer or supplier
completing Form FDA 3480, verifying that a previous notification is
effective and preparing necessary documentation. We estimate one
submission for each respondent, for a total of six responses. We
calculate a reporting burden of 25 hours per response, for a total of
150 hours.
    In rows 3, 4, and 5, we identify three tiers of FCNs that reflect
different levels of burden applicable to the respective information
collection items (denoted as Categories C, D, and E). We estimate 6
respondents will submit 2 Category C submissions annually, for a total
of 12

responses. We calculate a reporting burden of 120 hours per response,
for a total burden of 1,440 hours. We estimate 42 respondents will
submit 2 Category D submissions annually, for a total of 84 responses.
We calculate a reporting burden of 150 hours per response, for a total
burden of 12,600 hours. We estimate 38 respondents will submit 1
Category E submission annually, for a total of 38 responses. We
calculate a reporting burden of 150 hours per response, for a total
burden of 5,700 hours.
    In row 6, we estimate 190 respondents will submit information to a
pre-notification consultation or a master file in support of FCN
submission using Form FDA 3480. We calculate a reporting burden of 0.5
hours per response, for a total burden of 95 hours. In row 7 we
estimate 100 respondents will submit an amendment (Form FDA 3480A) to a
substantive or non- substantive request of additional information to an
incomplete FCN submission, an amendment to a pre-notification
consultation, or an amendment to a master file in support of an FCN. We
calculate a reporting burden of 0.5 hours per response, for a total
burden of 50 hours.
    In row 8, we estimate one respondent will submit one indirect food
additive petition under Sec.  171.1, for a total of one response. We
calculate a reporting burden of 10,995 hours per response, for a total
burden of 10,995 hours.
    In row 9, we estimate 10 respondents will utilize the
recommendations in the guidance document entitled, ``Use of Recycled
Plastics in Food Packaging: Chemistry Considerations,'' to develop the
additional information for one such submission annually, for a total of
10 responses. We calculate a reporting burden of 25 hours per response,
for a total burden of 250 hours.
    Finally, in row 10, we estimate 2 respondents will utilize the
recommendations in the draft guidance, once finalized, entitled,
``Preparation of Food Contact Notifications for Food Contact Substances
in Contact with Infant Formula and/or Human Milk,'' to develop the
additional information for one such submission annually, for a total of
2 responses. We calculate a reporting burden of 5 hours per response,
for a total burden of 10 hours.

    Dated: September 7, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-19898 Filed 9-12-18; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 87, Number 187 (Wednesday, September 28, 2022)]
[Notices]
[Pages 58876-58882]
[FR Doc No: 2022-20950]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95874; File No. 4-698]

Joint Industry Plan; Notice of Filing of Amendment to the
National Market System Plan Governing the Consolidated Audit Trail by
BOX Exchange LLC; Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc.,
Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Cboe C2 Exchange,
Inc. and Cboe Exchange, Inc., Financial Industry Regulatory Authority,
Inc., Investors Exchange LLC, Long-Term Stock Exchange, Inc., Miami
International Securities Exchange LLC, MEMX, LLC, MIAX Emerald, LLC,
MIAX PEARL, LLC, Nasdaq BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC,
Nasdaq MRX, LLC, Nasdaq PHLX LLC, The NASDAQ Stock Market LLC; and New
York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE
Chicago, Inc., and NYSE National, Inc.

September 22, 2022.

I. Introduction

    On September 8, 2022, the Operating Committee for Consolidated
Audit Trail, LLC (``CAT LLC''), on behalf of the following parties to
the National Market System Plan Governing the Consolidated Audit Trail
(the ``CAT NMS Plan'' or ``Plan''): \1\ BOX Exchange LLC, Cboe BYX
Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe
EDGX Exchange, Inc., Cboe C2 Exchange, Inc., Cboe Exchange, Inc.,
Financial Industry Regulatory Authority, Inc., Investors Exchange LLC,
Long-Term Stock Exchange, Inc., Miami International Securities Exchange
LLC, MEMX, LLC, MIAX Emerald, LLC, MIAX PEARL, LLC, Nasdaq BX, Inc.,
Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC, Nasdaq PHLX LLC,
The NASDAQ Stock Market LLC; and New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National,
Inc. (collectively, the ``Participants,'' ``self-regulatory
organizations,'' or ``SROs'') filed with the Securities and Exchange
Commission (``SEC'' or ``Commission'') pursuant to Section 11A(a)(3) of
the Securities Exchange Act of 1934 (``Exchange Act''),\2\ and Rule 608
thereunder,\3\ a proposed amendment to the CAT NMS Plan that would
authorize CAT LLC to revise the Consolidated Audit Trail Reporter
Agreement (the ``Reporter Agreement'') and the Consolidated Audit Trail
Reporting Agent Agreement (the ``Reporting Agent Agreement'') as
contained in Appendix A, attached hereto by: (1) removing the
arbitration provision from each agreement and replacing it with a forum
selection provision (the ``Forum Selection Provision'') which would
require that any dispute regarding CAT reporting be filed in a United
States District Court for the Southern District of New York (the
``SDNY''), or, in the absence of federal subject matter jurisdiction, a
New York State Supreme Court within the First Judicial Department; and
(2) revising the existing choice of law clause to provide that any
dispute will be governed by federal law (in addition to New York
law).\4\ The Commission is publishing this notice to solicit comments
from interested persons on the amendment.\5\
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    \1\ The CAT NMS Plan is a national market system plan approved
by the Commission pursuant to Section 11A of the Exchange Act and
the rules and regulations thereunder. See Securities Exchange Act
Release No. 79318 (Nov. 15, 2016), 81 FR 84696 (Nov. 23, 2016)
(``Order Approving CAT NMS Plan'').
    \2\ 15 U.S.C 78k-1(a)(3).
    \3\ 17 CFR 242.608.
    \4\ See Letter from Michael Simon, Chair, CAT NMS Plan Operating
Committee, to Vanessa Countryman, Secretary, Commission, dated
September 8, 2022.
    \5\ 17 CFR 242.608.
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II. Description of the Plan

    Set forth in this Section II is the statement of the purpose and
summary of the amendment, along with information required by Rule
608(a)(4) and (5) under the Exchange Act,\6\ substantially as prepared
and submitted by the Participants to the Commission.\7\
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    \6\ See 17 CFR 242.608(a)(4) and (a)(5).
    \7\ See supra note 4. Unless otherwise defined herein,
capitalized terms used herein are defined as set forth in the CAT
NMS Plan.
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A. Statement of Purpose of the Amendment to the CAT NMS Plan

    The Proposed Amendment would ensure that a dispute arising out of
CAT reporting would be addressed by either the SDNY or the New York
State Supreme Court. Designating an Article III court and a
sophisticated state court as potential forums for dispute resolution is
plainly consistent with the Exchange Act.
    Courts offer important substantive expertise and procedural
mechanisms that would facilitate the fair and efficient resolution of
claims in relation to CAT reporting. As an example, because a CAT
technical issue, system failure, or data breach may impact thousands of
potential parties, the ability of courts to consolidate and join claims
and certify class actions would minimize costs of litigation for all
potential parties (including Industry Members), which, in turn,
furthers the market efficiency and fair competition objectives of the
Exchange Act.
    The importance of a court resolving claims regarding CAT reporting
is underscored by the regulatory nature of the CAT. The Participants
are implementing the requirements of Rule 613 and the CAT NMS Plan in
their regulatory capacities. While cyber litigation frequently presents
complex questions, the CAT's regulatory nature adds a further layer of
complexity to any potential dispute. Among other issues, a tribunal
would have to evaluate the relationships between the Commission, the
Participants, and Industry Members and determine the applicability of
any immunity claims. In connection with the Participants' limitation of
liability proposal, both the Commission and the Securities Industry and
Financial Markets Association (``SIFMA'') recognized that regulatory
immunity may be at issue in a dispute regarding CAT reporting.
Utilizing courts to resolve such disputes will ensure that bedrock
principles of the self-regulatory framework are adjudicated based on
decades of binding precedent (often developed through the Commission's
feedback via amicus briefs) and afford the parties critical appellate
rights.
    Notwithstanding the benefits of litigation, an arbitration
provision was

included in the original Reporter Agreement because the agreement
initially disclaimed all direct and indirect damages and capped the
Participants' liability to $500 per Industry Member or Participant that
entered into the Reporter Agreement (``CAT Reporter''). But considering
the complex legal and factual issues likely implicated by a dispute
concerning CAT reporting, in the absence of a robust limitation on
liability, all parties should be able to rely on the protections
available in litigation.
    The Participants' proposed federal forum and alternative state
forum are well equipped to handle any dispute relating to CAT
reporting. The United States Court of Appeals for the Second Circuit,
and the SDNY, have significant experience resolving securities matters
and cyber claims. Likewise, the New York State Supreme Court in the
First Judicial Department, and in particular its Commercial Division in
New York County (Manhattan), is comprised of experienced judges who
regularly preside over complex disputes. Both forums routinely
adjudicate matters involving the Participants, Industry Members, and
the Commission, and given the locations of potential parties to a CAT
Data breach, New York would constitute a convenient forum for dispute
resolution.
(1) Background
    On July 11, 2012, the Commission adopted Rule 613 of Regulation NMS
to enhance regulatory oversight of the U.S. securities markets. The
rule directed the Participants to create a ``Consolidated Audit Trail''
(also referred to herein as the ``CAT'') that would strengthen the
ability of regulators--including the Commission and the self-regulatory
organizations--to surveil the securities markets.\8\ Following the
adoption of Rule 613, the Participants prepared and proposed the CAT
NMS Plan and then implemented--and continue to implement--the Plan's
extensive requirements.
---------------------------------------------------------------------------

    \8\ See 17 CFR 242.613 (2012).
---------------------------------------------------------------------------

    In preparation for CAT reporting, the Operating Committee of CAT
LLC approved a Reporter Agreement and Reporting Agent Agreement by
unanimous written consent on August 29, 2019. Those agreements
contained industry standard limitation of liability provisions that
disclaimed all damages and capped the liability of CAT LLC, the
Participants, and FINRA CAT to any CAT Reporter at $500 per calendar
year. The agreements also contained a mandatory arbitration provision
with respect to any disputes in connection with CAT reporting and
authorized an arbitrator to grant remedies that ``the arbitrator deems
just and equitable within the scope of [the] Agreement.'' \9\
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    \9\ See Consol. Audit Trail Rep. Agreement (``Reporter
Agreement'') and Consol. Audit Trail Reporting Agent Agreement
(``Reporting Agent Agreement''), Sec.  7.9, available at https://www.catnmsplan.com/sites/default/files/2020-02/Consolidated-Audit-Trail-Reporter-Agreement%2808-29-19%20FINAL%29.pdf and https://www.catnmsplan.com/sites/default/files/2020-05/Consolidated-Audit-Trail-Reporting-Agent-Agreement-amended_0.pdf.
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    On April 22, 2020, SIFMA challenged the Reporter Agreement's
limitation of liability and indemnification provisions by filing an
application for review of actions taken by CAT LLC and the Participants
pursuant to Sections 19(d) and 19(f) of the Exchange Act (the
``Administrative Proceeding''). On May 13, 2020, SIFMA and the
Participants reached a settlement of the Administrative Proceeding that
permitted Industry Members to report data to the CAT pursuant to a
revised Reporter Agreement that did not contain a limitation of
liability provision, while the Participants prepared a filing with the
Commission to resolve the parties' underlying disagreement regarding
the proper allocation of liability.\10\
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    \10\ As part of the settlement of the Administrative Proceeding,
SIFMA agreed to abandon its challenge to the industry standard
indemnification provisions that were included in the original
Reporter Agreement and Reporting Agent Agreement. See SIFMA
Statement on Settlement on CAT Reporter Agreement, available at
https://www.sifma.org/resources/news/sifma-statement-on-settlement-on-cat-reporter-agreement/. All CAT Reporters and CAT Reporting
Agents eventually signed an agreement that contained those
indemnification provisions.
---------------------------------------------------------------------------

    On December 18, 2020, the Participants proposed to amend the CAT
NMS Plan to authorize CAT LLC to revise the Reporter Agreement and the
Reporting Agent Agreement to insert limitation of liability provisions
(the ``Limitation of Liability Proposal'').\11\ SIFMA and various
Industry Members submitted comment letters in response to the
Limitation of Liability Proposal and in response to the Commission's
April 6, 2021 Order Instituting Proceedings.\12\ Multiple comment
letters--including from SIFMA--discussed the applicability of
regulatory immunity to a CAT Data breach, and demonstrated an
assumption and understanding that assessments of immunity claims would
be conducted by courts.\13\
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    \11\ See Letter from Michael Simon, CAT NMS Plan Operating Comm.
Chair to Vanessa Countryman, Sec'y, SEC (Dec. 18, 2020), available
at https://catnmsplan.com/sites/default/files/2020-12/12.18.2020-Proposed-Amendment-to-the-CAT-NMS-Plan.pdf.
    \12\ See SEC, Joint Indus. Plan; Order Instituting Proceedings
to Determine Whether to Approve or Disapprove an Amend. to the Nat'l
Mkt. Sys. Plan Governing the Consol. Audit Trail, Release No. 34-
391487; File No. 4-698 (Apr. 6, 2021), available at https://www.sec.gov/rules/sro/nms/2021/34-91487.pdf, 86 FR 19054 (Apr. 12,
2021), available at https://www.govinfo.gov/content/pkg/FR-2021-04-12/pdf/2021-07390.pdf; 17 CFR 242.608(b)(2)(i).
    \13\ See e.g., Letter from Ellen Greene, SIFMA to Vanessa
Countryman, Sec'y, SEC, at 7 (May 3, 2021) (the ``SIFMA Letter''),
available at https://www.sec.gov/comments/4-698/4698-8751243-237404.pdf (discussing an indication that ``courts are likely to
view any regulatory activity the SROs conduct through CAT LLC as
being subject to this judicial immunity''); Letter from Stephen John
Berger, Citadel Sec. to Vanessa Countryman, Sec'y, SEC, at 5 (Feb.
23, 2021) (the ``Citadel Letter''), available at https://www.sec.gov/comments/4-698/4698-8411798-229501.pdf) (``[C]ourts must
be `careful not to extend the scope of the protection further than
its purposes require.''') (citations omitted); Letter from Kelvin
To, Data Boiler Techs., LLC to Vanessa Countryman, Sec'y, SEC, at 4
(May 3, 2021) (the ``Data Boiler Letter''), available at https://www.sec.gov/comments/4-698/4698-8749987-237362.pdf (``How courts
apply a `functional test' to determine whether an SRO is entitled to
immunity from burdens of litigation or civil damages suits may be a
controversy here.'').
---------------------------------------------------------------------------

    On October 29, 2021, the Commission issued an order disapproving
the Limitation of Liability Proposal (the ``Disapproval Order'').\14\
The Commission noted that the Participants may have limited liability
through ``court-established'' regulatory immunity, and that the impact
of the Limitation of Liability Proposal depended on assumptions about
the applicability of regulatory immunity to a CAT Data breach.\15\
Throughout the Disapproval Order, the Commission indicated that the
applicability of regulatory immunity is appropriately decided by
courts.\16\
---------------------------------------------------------------------------

    \14\ SEC, Joint Industry Plan; Order Disapproving an Amend. to
the Nat'l Mkt. Sys. Plan Governing the Consol. Audit Trail, Release
No. 34-93484; File No. 4-698 (Oct. 29, 2021), available at https://www.sec.gov/rules/sro/nms/2021/34-93484.pdf, 86 FR 60933 (Nov. 4,
2021), available at https://www.govinfo.gov/content/pkg/FR-2021-11-04/pdf/2021-24015.pdf.
    \15\ See Disapproval Order at 29 (``Even in the absence of the
proposed Limitation of Liability Provisions, the Participants may
have limited liability to Industry Members through court-established
regulatory immunity.'') (citation omitted); see also id. at 42
(``The Commission believes that uncertainty regarding liability in
case of a CAT Data breach thus serves as an incentive for the
Participants to invest in data security to the extent that
Participants believe a court might not uphold their regulatory
immunity or it would be judged not to apply in a given case that was
before the courts.''); id. at 35 (``Participants can assert
regulatory immunity to the extent that the doctrine applies if there
is a security breach that exposes CAT Data and Industry Members seek
damages from the responsible Participants.'').
    \16\ See, e.g., supra n.17.
---------------------------------------------------------------------------

    On May 20, 2022, the Participants filed with the Commission a
proposed amendment (the ``May 2022 Proposed Amendment'') to the CAT NMS
Plan to revise the Reporter Agreement and the Reporting Agent Agreement
by removing the arbitration provision from each agreement and replacing
it with a

forum selection provision.\17\ The May 2022 Proposed Amendment also
revised the existing choice of law clause to provide that any dispute
will be governed by federal law (in addition to New York law). SIFMA
did not oppose the May 2022 Proposed Amendment's forum selection and
choice of law provisions, both of which are substantively identical to
the Participants' current proposal.\18\
---------------------------------------------------------------------------

    \17\ Securities Exchange Act Rel. No. 34-95031 (June 3, 2022),
87 FR 35153 (June 9, 2022), available at https://www.govinfo.gov/content/pkg/FR-2022-06-09/pdf/2022-12398.pdf. The May 2022 Proposed
Amendment also proposed to add to the Reporter Agreement and the
Reporting Agent Agreement a jury waiver provision and a disclaimer
of warranties provision. The Commission notes that the Participants
withdrew the May 22. 2022 Proposed Amendment on September 6, 2022.
See Letter from Michael Simon, CAT NMS Plan Operating Committee
Chair to Vanessa Countryman, Secretary, Securities and Exchange
Commission (Sept. 6, 2022).
    \18\ Letter from Ellen Greene, SIFMA to Vanessa Countryman,
Sec'y, SEC (June 30, 2022) at 2, available at https://www.sec.gov/comments/4-698/4698-20133896-303830.pdf.
---------------------------------------------------------------------------

(2) The Forum Selection Provision
    The Forum Selection Provision is contained in Appendix A to this
Proposed Amendment. In sum, the Forum Selection Provision provides that
any dispute concerning CAT reporting must be filed in the SDNY if there
is any basis for federal subject matter jurisdiction.\19\ The clause
also provides that if federal courts lack jurisdiction over a dispute,
plaintiffs must file suit in the New York State Supreme Court in New
York County (Manhattan) within the First Judicial Department. The
Proposed Amendment would require that the parties to any action filed
in the New York State Supreme Court seek assignment to the court's
Commercial Division if permitted by the Uniform Civil Rules for the
Supreme and County Courts.\20\
---------------------------------------------------------------------------

    \19\ Section 11.5 of the CAT NMS Plan authorizes Industry
Members to ``seek redress from the SEC pursuant to SEC Rule 608 or
in any other appropriate forum'' with respect to any dispute
regarding CAT fees. The Forum Selection Provision would not impact
the ability of Industry Members to petition the Commission directly
with respect to such disputes. CAT NMS Plan, supra n.1, Sec.  11.5.
    \20\ The Commercial Division has two jurisdictional
requirements: (1) a monetary threshold, which is $500,000 in
Manhattan, and, provided that the monetary threshold is met (or
equitable or declaratory relief is sought), (2) the principal claim
must fall within an enumerated list of types of claims, which
include, among others, claims for breach of contract. 22 N.Y.C.R.R.
Sec. Sec.  202.70(a), 202.70(b)(1)-(12). In addition, any party
seeking assignment of a case to the Commercial Division must file a
Commercial Division Request for Judicial Intervention Addendum
certifying that the case meets those two jurisdictional
requirements. 22 N.Y.C.R.R. Sec.  202.70(d)(1).
---------------------------------------------------------------------------

    The Forum Selection Provision also provides that the parties to any
litigation agree to accept service of a complaint by U.S. registered
mail and waive any objections based on venue. The Proposed Amendment
would apply to any litigation commenced by any signatory to the CAT
Reporter Agreement (or Reporting Agent Agreement).
(3) The Nature of Potential Claims
    The Participants believe that a court is the proper forum to
resolve claims regarding CAT reporting, including claims in relation to
potential technical issues, system failures, and data breaches.
Although the specific claims asserted likely will depend on the nature
of the incident, in the aftermath of high-profile data breaches (i.e.,
one category of potential claims), plaintiffs have brought common law
claims of breach of contract and negligence as well as claims based on
various federal statutes including the Stored Communications Act, the
Federal Wiretap Act, and the Computer Fraud and Abuse Act.\21\ In those
matters, plaintiffs sought substantial monetary relief including
compensatory, punitive, and statutory damages.
---------------------------------------------------------------------------

    \21\ See, e.g., In re Google Assistant Privacy Litig., No. 19-
cv-04286-BLF, 2021 WL 2711747, at *2 (N.D. Cal. July 1, 2021); Cal-
Cleve, Ltd. v. Wrag-Time Air Freight, Inc., No. 04-cv-10543 SJO
(JTLx), 2005 WL 8157876, at *1 (C.D. Cal. June 1, 2005).
---------------------------------------------------------------------------

    In any dispute regarding CAT reporting, CAT LLC will likely have
defenses based on the CAT's robust--and SEC-approved--cybersecurity,
and the Participants' regulatory role in implementing the CAT NMS
Plan.\22\ Assessing these defenses will likely require a tribunal to
resolve complex issues that implicate the Participants' status as self-
regulatory organizations and the SEC's oversight of the CAT.
Additionally, such disputes are likely to present complex legal and
factual issues inherent in cyber litigation generally. As discussed
infra at Section A(4), the Participants believe that a court is well-
equipped to address and mitigate any challenges of adjudicating claims
resulting from CAT reporting.
---------------------------------------------------------------------------

    \22\ FINRA CAT has implemented robust controls to protect the
security and confidentiality of CAT Data and the Commission has
repeatedly concluded that the CAT NMS Plan incorporates ``robust
security requirements'' that ``provide appropriate, adequate
protection for the CAT Data.'' See Order Approving CAT NMS Plan,
supra n.1, at 715; see also SEC, Proposed Amends. to the Nat'l Mkt.
Sys. Plan Governing the Consol. Audit Trail to Enhance Data Sec.,
Release No. 34-89632; File No. S7-10-20, at 10 (Aug. 21, 2020) (the
``Data Security Proposal''), available at https://www.sec.gov/rules/proposed/2020/34-89632.pdf, 85 FR 65990 at 65991 (Oct. 16, 2020),
available at https://www.govinfo.gov/content/pkg/FR-2020-10-16/pdf/2020-18801.pdf (``CAT Data reported to and retained in the Central
Repository is thus subject to what the Commission believes are
stringent security policies, procedures, standards, and
controls.'').
---------------------------------------------------------------------------

(4) The Forum Selection Provision Would Promote the Fair, Expeditious,
and
Efficient Resolution of Any Claims Regarding CAT Reporting
    The Proposed Amendment would lead to the fair and efficient
resolution of potential disputes, ensure that issues implicating
foundational principles of the self-regulatory framework are decided
based on longstanding precedent, and provide the parties with important
appellate rights. Litigating claims in an Article III court, or
sophisticated state court, is plainly consistent with the Exchange
Act.\23\
---------------------------------------------------------------------------

    \23\ The Participants recognize that certain individuals who
serve as arbitrators may have experience with cybersecurity and
securities matters. However, even if the parties to a CAT Data
breach were able to ensure that such arbitrators presided over a
potential dispute, litigation remains more suitable to resolve
claims regarding CAT reporting for the reasons discussed in this
submission, including (among other reasons) courts' mechanisms to
consolidate claims, the presence of meaningful appellate rights, the
role of legal precedent, the nature of the parties to a potential
dispute, and the relevance of regulatory immunity to resolving
claims.
---------------------------------------------------------------------------

a. Consolidation, Joinder of Claims, and Class Actions
    Because certain potential claims arising out of CAT reporting--
including technical issues, system failures, and data breaches--are
likely to impact multiple parties, one important consideration is the
extent to which a particular dispute resolution mechanism allows for
consolidation of claims. Indeed, consolidating such claims would reduce
costs of dispute resolution, enable CAT LLC to focus on its regulatory
mandate, and decrease the risk of disparate outcomes in similar cases,
all of which promote the efficiency and fair competition objectives of
the Exchange Act.
    In court, litigants can rely on the applicability of the rules of
consolidation and joinder to increase the likelihood that all cases
arising out of one incident are heard together. Both federal and New
York State rules of civil procedure provide mechanisms to consolidate
cases and join parties to actions.\24\ Relatedly, both federal and New
York State rules of civil procedure permit the use of class actions for
certain disputes and both forums have substantial experience resolving
such disputes.\25\ Selection of these forums, in light of both their
experience and

procedural rules, would promote consistency of outcomes and the
efficient resolution of claims.
---------------------------------------------------------------------------

    \24\ See Fed. R. Civ. P. 19, 20, 42(a)(2); N.Y. C.P.L.R.
Sec. Sec.  602, 1001, 1002.
    \25\ See Fed. R. Civ. P. 23; 28 U.S.C. 1332(d)(2); N.Y. C.P.L.R.
Sec.  901(a); see supra Sec.  A(5).
---------------------------------------------------------------------------

    By contrast, under the AAA Commercial Arbitration Rules (the ``AAA
Rules''), which govern arbitration under the current Reporter Agreement
and Reporting Agent Agreement, consolidation is a ``suggest[ion] . . .
that the parties and the arbitrator should address at the preliminary
hearing,'' and the ultimate decision regarding whether consolidation is
appropriate is ``subject to the discretion of the arbitrator.'' \26\
The AAA Rules are also silent on joinder. While parties to an
arbitration agreement may agree that signatories will be required to
join claims,\27\ parties frequently face complications in joining non-
signatories to an arbitration. This is particularly significant in the
context of a potential claim arising out of CAT reporting because
certain types of incidents may impact both Industry Members and other
market participants (e.g., retail investors).
---------------------------------------------------------------------------

    \26\ See AAA Rules P-2(a)(vi)(c).
    \27\ See, e.g., 9 U.S.C. 2 (``A written provision in . . . a
contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any part
thereof, or an agreement in writing to submit to arbitration an
existing controversy arising out of such a contract, transaction, or
refusal, shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any
contract.''); see also AAA Rules R-1(a) (providing that the AAA
Rules are deemed a part of parties' agreement to arbitrate where the
parties provide for AAA commercial arbitration).
---------------------------------------------------------------------------

    For those reasons, if the arbitration provision remains in the
Reporter Agreement and Reporting Agent Agreement, actions involving the
same common questions of law or fact or arising out of the same
``transaction or occurrence'' may be brought piecemeal, with
signatories to the agreements arbitrating their claims or defenses and
non-signatories litigating those claims or defenses in court. This can
lead to illogical or unworkable outcomes; \28\ indeed, cases arising
out of the same facts or involving the same legal issues or even the
same parties may result in entirely different outcomes, creating
inconsistent rules, rendering inconsistent damages awards, or both.
---------------------------------------------------------------------------

    \28\ See Rick Fleming, Investor Advocate, SEC, Mandatory
Arbitration: An Illusory Remedy for Public Company Shareholders
(Feb. 24, 2018), https://www.sec.gov/news/speech/fleming-sec-speaks-mandatory-arbitration (``[I]t seems terribly inefficient to require
multiple plaintiffs to prove up the same claims in separate
proceedings.'').
---------------------------------------------------------------------------

b. Reliance on Precedent and the Expertise of Courts
    A dispute regarding CAT reporting is likely to present complex
legal and factual issues inherent in cyber litigation generally as well
as in relation to the Participants' regulatory roles in overseeing the
CAT. Allowing the parties to litigate in court would ensure that the
forum charged with resolving disputes is bound by the substantial body
of precedent that has been developed to address these issues.
    Relatedly, the doctrine of regulatory immunity may play an
important role in any dispute concerning CAT reporting. In connection
with the Limitation of Liability Proposal, multiple comment letters
discussed the applicability of regulatory immunity to a CAT Data breach
and demonstrated an assumption and understanding that such a
determination was the province of courts.\29\ The Commission, likewise,
recognized the importance of regulatory immunity claims and its
Disapproval Order also indicated an expectation that such claims would
be decided by courts.\30\ Indeed, courts have developed a robust body
of case law on the immunity doctrine, which provides parameters to
courts as they analyze the applicability of regulatory immunity to the
specific facts presented by a given case.
---------------------------------------------------------------------------

    \29\ See, e.g., supra n.15.
    \30\ Disapproval Order, supra n.16, 17.
---------------------------------------------------------------------------

    The ability to rely on binding precedent is even more critical in
the event of a claim arising out of CAT reporting. As discussed supra
at Section 3, certain incidents may lead to claims in which impacted
parties seek substantial damages from CAT LLC. In light of the
potential amount in controversy, coupled with the likely legal and
factual issues presented by a dispute--including the applicability of
immunity claims--all parties should be able to rely on the certainty of
knowing that their conduct will be evaluated by developed legal
standards. In addition to affording all parties the opportunity to rely
on precedent, litigating disputes in court will also promote the
development of precedent to guide the conduct of the Participants and
Industry Members.
c. Appellate Review
    Adjudicating claims in relation to CAT reporting in court provides
all parties with critical appellate rights. While important for any
high stakes dispute, appellate rights are particularly important in the
event of a CAT system failure, technical issue, or data breach,
considering the complicated legal and factual issues, the nature of the
parties, and the potentially large amount in controversy. Regulatory
immunity claims, for example, are often the subject of appellate
review.\31\
---------------------------------------------------------------------------

    \31\ See, e.g., D'Alessio v. N.Y. Stock Exchange, Inc., 258 F.3d
93 (2d Cir. 2001); In re NYSE Specialists Sec. Litig., 503 F.3d 89
(2d Cir. 2007).
---------------------------------------------------------------------------

    Direct appellate review is largely absent in arbitration.\32\
Moreover, even if the parties to the Reporter Agreement or Reporting
Agent Agreement were able to avail themselves of appellate rights, an
appellate arbitration tribunal would be similarly unbound by precedent
as the lower arbitration forum that rendered a potentially erroneous
award.\33\ With respect to judicial review of an arbitration award, the
Federal Arbitration Act (the ``FAA'') provides limited grounds for
federal courts to vacate, modify, or correct final arbitration
decisions.\34\ In the absence of unusual circumstances, however,
meaningful appellate review is generally unavailable: none of the
grounds provided by the FAA would authorize a court to vacate an
arbitration award that was premised on an error of law.\35\
---------------------------------------------------------------------------

    \32\ AAA Rules only authorize appellate review of arbitration
awards if the parties consent to appellate rights. See AAA Rules A-
1.
    \33\ As the Supreme Court has explained, ``[t]he arbitrator's
construction holds, however good, bad, or ugly.'' Oxford Health
Plans LLC v. Sutter, 569 U.S. 564, 573 (2013).
    \34\ See 9 U.S.C. 9 (providing that if the parties have
contractually agreed that a specific federal court will enter
judgment upon an arbitration award, then at any time within one year
after the award is made, any party may apply to that court for an
order confirming the award; if no court is specified, then the
application may be made to the U.S. district court for the district
within which the award was made); 9 U.S.C. 10 (providing that the
U.S. district court where the arbitration award was made may vacate
the award upon an application of any party to the arbitration, where
the award was ``procured by corruption, fraud, or undue means,''
where there ``was evident partiality or corruption in the
arbitrators,'' where the arbitrators ``were guilty of misconduct,''
or where the arbitrators ``exceeded their powers'' or ``so
imperfectly executed them that a mutual, final, and definite award''
was not made); 9 U.S.C. 11 (providing the following grounds for
which a U.S. district court may upon the application of any party to
an arbitration modify or correct an arbitration award: ``an evident
material miscalculation'' or mistake in the award; an award upon a
matter ``not submitted'' to the arbitrators; or ``where the award is
imperfect in matter of form not affecting the merits of the
controversy'').
    \35\ See 9 U.S.C. 11.
---------------------------------------------------------------------------

d. Rules Governing Discovery and Evidence
    Considering the magnitude of data transmitted to the CAT, a dispute
is likely to involve a substantial volume of documents and information.
Additionally, many documents that might be the subject of discovery
requests are likely to be either commercially sensitive for Industry
Members or involve nonpublic, sensitive information regarding the CAT's
security.

    Parties to litigation are afforded the benefits of rules governing
the discovery process and admissibility of evidence. These rules
promote predictability of litigation, efficiency of resolutions, and
fairness of results,\36\ and provide mechanisms for facilitating
discovery as well as the admission of evidence.\37\ For example,
litigants in court must comply with clear discovery rules, which govern
the scope of discovery and the timing and content of disclosures, and
facilitate communication among the parties and the court regarding
these matters.\38\ Litigants in court also have the benefit of a
uniform set of rules governing the admissibility of evidence.\39\ These
protections do not exist under the AAA Rules,\40\ which provide a more
limited set of procedures pertaining to discovery and evidence.\41\
Given the breadth and depth of the discovery and evidence rules in
federal and state court, and the fact that courts are bound by
precedent and subject to appellate review, see supra Sec.  A(4)(b)-(c),
courts are better suited to handle disputes regarding CAT reporting.
---------------------------------------------------------------------------

    \36\ See, e.g., Fed. R. Civ. P. 1 (noting that the purpose of
the rules is to ``secure the just, speedy, and inexpensive
determination of every action and proceeding'').
    \37\ See generally Fed. R. Civ. P. 26-28, 30-31, 33-34, 36; Fed.
R. Evid. 101-02; N.Y. C.P.L.R. Sec. Sec.  3101-02, 3122; 22
N.Y.C.R.R. Sec. Sec.  202.11-12; Guide to N.Y. Evid. rule 1.03.
Courts also have subpoena power over witnesses. See Fed. R. Civ. P.
30(a)(1), 45(a)(1)(B), 45(c)(1); N.Y. C.P.L.R. Sec. Sec.  2301,
3106(b); 22 N.Y.C.R.R. Sec.  202.20-d; see also 28 U.S.C. 1783;
Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters (the Hague Convention); Uniform Interstate Depositions and
Discovery Act (the ``UIDDA'') (providing mechanism for New York
State courts to serve out-of-state subpoenas; in the absence of the
UIDDA, the provisions for service applicable in the out-of-state
jurisdiction apply).
    \38\ See, e.g., Fed. R. Civ. P. 26; N.Y. C.P.L.R. Sec.  3101; 22
N.Y.C.R.R. Sec. Sec.  202.11-12.
    \39\ See Fed. R. Evid. 101, 102. New York State does not have a
statutory code of evidence; instead, its rules of evidence reside in
judicial precedent, the State constitution, and State statutes. The
New York Unified Court System has compiled a guide setting forth
current practice in New York State courts regarding the application
of the rules of evidence. See generally Guide to N.Y. Evid. Rule
1.03, Note. New York evidence law is generally in accord with the
Federal Rules of Evidence, including rules on relevance, prejudice,
privilege, and hearsay. See, e.g., id. rules 4.01, 4.07, 5.01-09,
and 8.00-01.
    \40\ AAA Rules P-1(b) (instructing parties to carefully ``avoid
importing procedures from court systems'').
    \41\ See, e.g., id. (disclaiming procedures from court systems),
R-22 (providing for pre-hearing exchange and production of
information), L-3(f) (noting that depositions are available only in
``exceptional'' circumstances), R-34 (governing the admissibility of
evidence and noting conformity to the legal rules of evidence is not
necessary); see also 9 U.S.C. 7 (allowing arbitrator to subpoena
witnesses to testify, but only in hearings, as opposed to
depositions); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706,
708 (9th Cir. 2017) (holding that ``section 7 of the FAA does not
grant arbitrators the power to order third parties to produce
documents prior to an arbitration hearing''); Life Receivables Tr.
v. Syndicate 102 at Lloyd's of London, 549 F.3d 210, 217 (2d Cir.
2008); Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407
(3d Cir. 2004) (Alito, J.).
---------------------------------------------------------------------------

(5) Designating the SDNY and New York State Courts in a Forum Selection
Provision is Consistent With the Exchange Act
    The Proposed Amendment's Forum Selection Provision designates the
SDNY, or, in the absence of federal subject matter jurisdiction, a New
York State Supreme Court in New York County within the First Judicial
Department as the venue for any dispute concerning CAT reporting. Both
forums would provide the parties with a sophisticated tribunal that has
experience adjudicating matters involving the federal securities laws,
market structure, and cybersecurity.
    As an initial mater, based on the potential parties to any lawsuit
arising out of CAT reporting, New York is likely to be a convenient
venue. As the reputed financial capital of the world, New York is home
to the two largest securities exchanges and several other Participants.
Additionally, many of the most prominent Industry Members by trading
volume are located in New York.\42\
---------------------------------------------------------------------------

    \42\ Those Industry Members include, for example, Citigroup
Global Markets, Inc., Goldman Sachs & Co. LLC, Morgan Stanley & Co.
LLC, J.P. Morgan Securities, LLC, Deutsche Bank Securities, Inc.,
UBS Securities LLC, and Credit Suisse Securities USA, LLC.
---------------------------------------------------------------------------

    The existing Reporter Agreement and Reporting Agent Agreement both
provide that any claim must be commenced in New York (i.e., in the
current arbitration provision) and that the Reporter Agreement and
Reporting Agent Agreement are governed by New York law.\43\ Relatedly,
all dates and times referenced in the agreements are set to New York
time.\44\
---------------------------------------------------------------------------

    \43\ Reporter Agreement Sec.  7.11; Reporting Agent Agreement
Sec.  7.11.
    \44\ Reporter Agreement Sec.  7.8; Reporting Agent Agreement
Sec.  7.8.
---------------------------------------------------------------------------

    In addition to being a convenient venue for potential parties, the
Participants' proposed forum--and backup forum--have the requisite
subject matter expertise to resolve claims in relation to CAT reporting
fairly and efficiently. The Second Circuit has extensive experience
with securities and financial regulation matters.\45\ Moreover,
applying the precedent set by the Second Circuit, the SDNY routinely
handles complicated securities matters with broad implications for the
national financial markets.
---------------------------------------------------------------------------

    \45\ The Supreme Court has referred to the Second Circuit as the
``Mother Court'' regarding securities matters. See, e.g., Morrison
v. Nat'l Austl. Bank, 561 U.S. 247, 275-76 (2010) (Stevens, J.,
concurring in judgment) (quoting Blue Chip Stamps v. Manor Drug
Stores, 421 U.S. 723, 737 (1975)).
---------------------------------------------------------------------------

    The Second Circuit--and the SDNY in particular--also has
significant experience determining the rights and remedies of parties
following data breaches, including in relation to critical issues such
as standing and damages,\46\ and balancing the competing interests
involved in adjudicating sensitive and costly cybersecurity
incidents.\47\ In light of its extensive experience with securities,
financial regulation, market structure, and cyber matters, it is beyond
reasonable dispute that the Second Circuit and the SDNY have the
appropriate expertise to resolve a dispute regarding CAT reporting.
---------------------------------------------------------------------------

    \46\ See, e.g., McMorris v. Carlos Lopez & Assocs., LLC, 995
F.3d 295, 300-03 (2d Cir. 2021) (standing); In re GE/CBPS Data
Breach Litig., No. 20-cv-2903 (KPF), 2021 WL 3406374, at *5-7
(S.D.N.Y. Aug. 4, 2021) (standing); Sackin v. TransPerfect Glob.,
Inc., 278 F. Supp. 3d 739, 745 (S.D.N.Y. 2017) (damages); Hammond v.
Bank of New York Mellon Corp., No. 08-cv-6060 (RMB) (RLE), 2010 WL
2643307, at *4 (S.D.N.Y. June 25, 2010) (damages); see also Smahaj
v. Retrieval-Masters Creditors Bureau, Inc., 69 Misc.3d 597, 599-
600, 604 (Sup. Ct. Westchester Cnty. 2020) (damages).
    \47\ See, e.g., McMorris, 995 F.3d at 302 (weighing relative
sensitivity of certain types of data); Wallace v. Health Quest Sys.,
Inc., No. 20-cv-545 (VB), 2021 WL 1109727, at *1 n.1 (S.D.N.Y. Mar.
23, 2021) (addressing claims for negligence, breach of implied
contract, breach of contract, unjust enrichment, breach of
confidence, bailment, and violations of New York's General Business
Law); see also Pena v. British Airways, PLC (UK), No. 18-cv-6278
(LDH) (RML), 2020 WL 38989055, at *2 n.2, *3-4, *6 (E.D.N.Y. Mar.
30, 2020) (granting motion to dismiss for lack of standing,
preemption, and failure to state a claim); see also Keach v. BST &
Co. CPAs, LLP, 71 Misc.3d 1204(A), at *7 (Sup. Ct. Albany Cnty.
2021) (citations omitted).
---------------------------------------------------------------------------

    As the Commission noted in its Disapproval Order, in the absence of
a limitation on liability, the Participants can assert regulatory
immunity in response to a claim for damages. The Second Circuit has
authored several seminal opinions regarding the scope of regulatory
immunity,\48\ and courts in other jurisdictions often cite to and rely
on the Second Circuit's analyses to

apply the regulatory immunity doctrine to cases pending before
them.\49\
---------------------------------------------------------------------------

    \48\ See Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec.
Dealers, Inc., 637 F.3d 112, 116 (2d Cir. 2011) (noting Second
Circuit decisions on regulatory immunity in the context of ``(1)
disciplinary proceedings against exchange members, [Barbara v. NYSE,
99 F.3d 49, 59 (2d Cir. 1996)]; (2) the enforcement of security
rules and regulations and general regulatory oversight over exchange
members, [D'Alessio, 258 F.3d at 106]; (3) the interpretation of the
securities laws and regulations as applied to the exchange or its
members, id.; (4) the referral of exchange members to the SEC and
other government agencies for civil enforcement or criminal
prosecution under the securities laws, id.; and (5) the public
announcement of regulatory decisions, [DL Cap. Grp., LLC v. Nasdaq
Stock Mkt., Inc., 409 F.3d 93, 98 (2d Cir. 2005)].'').
    \49\ See, e.g., In re Series 7 Broker Qualification Exam Scoring
Litig., 548 F.3d 110, 113-15 (D.C. Cir. 2008) (citing Barbara, 99
F.3d 49; Desiderio v. NASD, 191 F.3d 198 (2d Cir. 1999); DL Cap.
Grp., 409 F.3d 93; Feins v. Am. Stock Exch., Inc., 81 F.3d 1215 (2d
Cir. 1996)).
---------------------------------------------------------------------------

    New York State courts--particularly those within the Commercial
Division of the First Judicial Department--are likewise well suited to
address the complex issues that might arise during litigation regarding
a CAT Data breach. The court's judges focus primarily on complex cases
and have developed sophisticated procedural rules designed to foster
the efficient and fair resolution of disputes.\50\ Relying in part on
the Second Circuit's developed body of case law, the New York state
courts within the First Judicial Department are one of only a few state
courts that have addressed the scope of regulatory immunity.\51\
---------------------------------------------------------------------------

    \50\ See generally 22 N.Y.C.R.R. Sec.  202.70 (Rules of the
Commercial Division of the Supreme Court). The Commercial Division
``is an efficient, sophisticated, up-to-date court dealing with
challenging commercial cases'' and ``its primary goal [is] the cost-
effective, predictable and fair adjudication of complex commercial
cases.'' 22 N.Y.C.R.R. Sec.  202.70(g) (Preamble to the Rules of
practice for the Commercial Division).
    \51\ See Wey v. Nasdaq, Inc., 188 A.D.3d 587 (1st Dep't 2020).
---------------------------------------------------------------------------

(6) Governing Law Provision
    The Proposed Amendment modifies the governing law provision
contained in the existing Reporter Agreement and Reporting Agent
Agreement to provide that the agreements, and any matters between CAT
LLC and either a CAT Reporter or a CAT Reporting Agent, will be
governed by federal law and the laws of the State of New York. The
existing governing law provision refers only to New York state law and,
because CAT LLC was created pursuant to federal law and is subject to a
federal regulatory regime, claims by or against CAT LLC could involve
issues of federal law. Therefore, the Proposed Amendment modifies the
existing governing law provision to clarify that any disputes arising
out of or related to the agreements will be governed by both federal
law and by New York state law.

B. Governing or Constituent Documents

    Not applicable.

C. Implementation of Amendment

    The Participants propose to implement the Proposed Amendment by
making the revised agreements effective upon Commission approval of
this Proposed Amendment, without requiring CAT Reporters and CAT
Reporting Agents to re-sign the agreements.

D. Development and Implementation Phases

    The Participants propose the revised agreements be effective upon
Commission approval of this Proposed Amendment, without requiring CAT
Reporters and CAT Reporting Agents to re-sign the agreements.

E. Analysis of Impact on Competition

    The Participants do not believe the Proposed Amendment will have
any impact on competition. The Proposed Amendment would mandate that
all CAT Reporters and CAT Reporting Agents are bound by revised
agreements that contain the amended provisions. Moreover, the Forum
Selection Provision would apply equally to all Industry Members, the
Participants, and CAT LLC, and would not impact the relative
competitive positions among different Industry Members. Additionally,
as discussed above, adjudication of disputes relating to CAT reporting
in courts promotes consistency of outcomes, which thereby promotes fair
competition. Conversely, arbitration could lead to disparate and
inconsistent outcomes of similar disputes, which would unfairly
advantage certain parties over others.

F. Written Understanding or Agreements Relating to Interpretation of,
or Participation in, Plan

    Not applicable.

G. Approval by Plan Sponsors in Accordance With Plan

    Section 12.3 of the CAT NMS Plan states that, subject to certain
exceptions, the Plan may be amended from time to time only by a written
amendment, authorized by the affirmative vote of not less than two-
thirds of all of the Participants, that has been approved by the SEC
pursuant to Rule 608 or has otherwise become effective under Rule 608.
The Participants, by a vote of the Operating Committee obtained via
written consent on September 6, 2022, have authorized the filing of
this Proposed Amendment with the SEC in accordance with the Plan.

H. Description of Operation of Facility Contemplated by the Proposed
Amendment and Any Fees or Charges in Connection Thereto

    Not applicable.

I. Terms and Conditions of Access

    Not applicable.

J. Method and Frequency of Processor Evaluation

    Not applicable.

K. Dispute Resolution

    Not applicable.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the amendment is
consistent with the Exchange 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 4-698 on the subject line.

Paper Comments

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

All submissions should refer to File Number 4-698. 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 plan amendment that are filed
with the Commission, and all written communications relating to the
amendment 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 Participants' offices. 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 4-698
and should be submitted on or before October 19, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\52\
---------------------------------------------------------------------------

    \52\ 17 CFR 200.30-3(a)(85).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.

Appendix A

Limited Liability Company Agreement of Consolidated Audit Trail, LLC

* * * * *

Article XII

    [proposed additions]
* * * * *
    Section 12.15. Forum Selection; Governing Law. Each CAT Reporter
shall be bound by an amended Consolidated Audit Trail Reporter
Agreement containing, in substance, the forum selection provision
and governing law provision in Appendix E to this Agreement. Each
Person engaged by a CAT Reporter to report CAT Data to the Central
Repository on behalf of such CAT Reporter shall be bound by an
amended Consolidated Audit Trail Reporting Agent Agreement
containing, in substance, the forum selection provision and
governing law provision in Appendix F to this Agreement. The
Operating Committee shall have authority in its sole discretion to
make non-substantive amendments to the forum selection provision and
governing law provision in the Consolidated Audit Trail Reporter
Agreement and the Consolidated Audit Trail Reporting Agent
Agreement.
* * * * *

Appendix E

    [proposed additions]
* * * * *

Forum Selection Provision in the CAT Reporter Agreement

    7.9. Forum Selection. EXCEPT AS OTHERWISE PROHIBITED BY FEDERAL
LAW OR OTHERWISE PROVIDED BY SECTION 11.5 OF THE CAT NMS PLAN, FOR
ANY DISPUTE, CONTROVERSY, OR CLAIM IN CONNECTION WITH, RELATING TO,
OR ASSOCIATED IN ANY WAY WITH THIS AGREEMENT, CAT REPORTING, OR THE
CAT SYSTEM, THE PARTIES IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THE NEW YORK STATE SUPREME COURT
FOR NEW YORK COUNTY IN THE BOROUGH OF MANHATTAN, INCLUDING THE
COMMERCIAL DIVISION. Each Party hereby agrees to commence any such
action, suit, or other proceeding in (i) the United States District
Court for the Southern District of New York, or (ii) if such action,
suit, or other proceeding cannot be brought in such court for
jurisdictional reasons, to commence such suit, action, or other
proceeding in the New York State Supreme Court for New York County,
borough of Manhattan, and seek assignment to the New York County
Commercial Division whenever the jurisdictional requirements for
Commercial Division assignment are met. Service of any process,
summons, notice, or document by U.S. registered mail to such Party's
respective address shall be effective service of process for any
action, suit, or other proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Agreement.
Each Party irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit, or other proceeding
connected to, related to, or associated in any way with this
Agreement, CAT Reporting, or the CAT System in the courts identified
in items (i)-(ii) above, and hereby and thereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit, or other proceeding brought
in any such court has been brought in an inconvenient forum. The
provisions of this paragraph shall apply to any action, suit, or
other proceeding commenced by any Party against any other Party to
this Agreement, including those in which one or more Participants or
the Plan Processor (or any Representatives of one or more
Participants or the Plan Processor) are named as parties, regardless
of whether CATLLC is also named as a party.

Governing Law Clause in the CAT Reporter Agreement

    7.11. Governing Law. THIS AGREEMENT, AND ALL MATTERS BETWEEN
CATLLC AND CAT REPORTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT, SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY LAWS, RULES OR PROVISIONS THAT
WOULD CAUSE THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN
THE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF
NEW YORK.
* * * * *

Appendix F

    [proposed additions]
* * * * *

Forum Selection Provision in the CAT Reporting Agent Agreement

    7.9. Forum Selection. EXCEPT AS OTHERWISE PROHIBITED BY FEDERAL
LAW OR OTHERWISE PROVIDED BY SECTION 11.5 OF THE CAT NMS PLAN, FOR
ANY DISPUTE, CONTROVERSY, OR CLAIM IN CONNECTION WITH, RELATING TO,
OR ASSOCIATED IN ANY WAY WITH THIS AGREEMENT, CAT REPORTING, OR THE
CAT SYSTEM, THE PARTIES IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THE NEW YORK STATE SUPREME COURT
FOR NEW YORK COUNTY IN THE BOROUGH OF MANHATTAN, INCLUDING THE
COMMERCIAL DIVISION. Each Party hereby agrees to commence any such
action, suit, or other proceeding in (i) the United States District
Court for the Southern District of New York, or (ii) if such action,
suit, or other proceeding cannot be brought in such court for
jurisdictional reasons, to commence such suit, action, or other
proceeding in the New York State Supreme Court for New York County,
borough of Manhattan, and seek assignment to the New York County
Commercial Division whenever the jurisdictional requirements for
Commercial Division assignment are met. Service of any process,
summons, notice, or document by U.S. registered mail to such Party's
respective address shall be effective service of process for any
action, suit, or other proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Agreement.
Each Party irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit, or other proceeding
connected to, related to, or associated in any way with this
Agreement, CAT Reporting, or the CAT System in the courts identified
in items (i)-(ii) above, and hereby and thereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit, or other proceeding brought
in any such court has been brought in an inconvenient forum. The
provisions of this paragraph shall apply to any action, suit, or
other proceeding commenced by any Party against any other Party to
this Agreement, including those in which one or more Participants or
the Plan Processor (or any Representatives of one or more
Participants or the Plan Processor) are named as parties, regardless
of whether CATLLC is also named as a party.

Governing Law Clause in the CAT Reporting Agent Agreement

    7.11. Governing Law. THIS AGREEMENT, AND ALL MATTERS BETWEEN
CATLLC AND CAT REPORTING AGENT ARISING OUT OF OR RELATING TO THIS
AGREEMENT, SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY LAWS, RULES OR PROVISIONS THAT
WOULD CAUSE THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN
THE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF
NEW YORK.
* * * * *

[FR Doc. 2022-20950 Filed 9-27-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 151 (Friday, August 5, 2016)]
[Notices]
[Pages 51942-51944]
[FR Doc No: 2016-18622]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2016-0002]

Federal Advisory Council on Occupational Safety and Health
(FACOSH)

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

ACTION: Request for nominations to serve on FACOSH.

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

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

DATES: You must submit (postmark, send, transmit, deliver) nominations
by October 31, 2016.

ADDRESSES: You may submit nominations and supporting materials using
one of the following methods:
    Electronically: You may submit materials, including attachments,
electronically at http://www.regulations.gov, the Federal eRulemaking
Portal. Follow the online instructions for making submissions;
    Facsimile (FAX): If your submission, including attachments, does
not exceed 10 pages, you may FAX it to the OSHA Docket Office at (202)
693-1648; or
    Mail, express delivery, hand delivery, or messenger/courier
service: You may submit nominations and supporting materials to the
OSHA Docket Office, Docket No. OSHA-2016-0002, Room N-2625, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210;
telephone<PHONE_NUMBER> (OSHA TTY<PHONE_NUMBER>). Deliveries (hand,
express mail, messenger/courier service) are accepted during the
Department's and the OSHA Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., weekdays.
    Instructions: Your nominations and supporting materials must
include the agency/organization name and docket number for this Federal
Register notice. Due to security-related procedures, receipt of
submissions by regular mail may result in a significant delay. Please
contact the OSHA Docket Office for information about security
procedures

for submitting nominations and supporting materials by hand delivery,
express delivery, and messenger/courier service. For additional
information on submitting nominations and supporting materials, see
Public Participation in the SUPPLEMENTARY INFORMATION section of this
notice.
    OSHA will post submissions, including any personal information
provided, without change in the FACOSH docket and they may be available
online at http://www.regulations.gov. Therefore, OSHA cautions
individuals about submitting certain personal information, such as
Social Security numbers and birthdates.

FOR FURTHER INFORMATION CONTACT: For press inquiries: Mr. Frank
Meilinger, Director, OSHA Office of Communications, Room N-3647, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210;
telephone<PHONE_NUMBER>; email<EMAIL_ADDRESS>    For general information: Mr. Francis Yebesi, Director, OSHA Office
of Federal Agency Programs, Room N-3622, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2122; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    The Assistant Secretary of OSHA invites interested individuals to
submit nominations for membership on FACOSH.
    Background: FACOSH is authorized to advise the Secretary of Labor
(Secretary) on all matters relating to the occupational safety and
health of federal employees (5 U.S.C. 7902; 29 U.S.C. 668, Executive
Order 12196, as amended). This includes providing advice on how to
reduce and keep to a minimum the number of injuries and illnesses in
the federal workforce, and how to encourage the establishment and
maintenance of effective occupational safety and health programs in
each federal agency.
    FACOSH membership: FACOSH is comprised of 16 members, 8 management
representatives from federal agencies and 8 representatives from labor
organizations that represent federal employees. The Secretary appoints
FACOSH members to staggered terms of up to three years. The number of
members the Secretary will appoint to three-year terms beginning
January 1, 2017, are:
     Three labor representatives; and
     Three management representatives.
    FACOSH members serve at the pleasure of the Secretary and may be
appointed to successive terms. FACOSH meets at least twice a year.
    The Department of Labor is committed to equal opportunity in the
workplace and seeks broad-based and diverse FACOSH membership. Any
federal agency, labor organization representing federal workers, or
individual(s) may nominate one or more qualified persons for membership
on FACOSH. Interested individuals also are invited and encouraged to
submit statements in support of a nominee(s).
    Nomination requirements: Submission of nominations must include the
following information:
    1. The nominee's name, contact information and current employment;
    2. Category of membership (management or labor) that the nominee is
qualified to represent;
    3. The nominee's resume or curriculum vitae, including prior
membership on FACOSH and other relevant organizations, associations and
committees;
    4. A summary of the nominee's background, experience and
qualifications that address the nominee's suitability to serve on
FACOSH;
    5. Articles or other documents the nominee has authored, if any,
that indicate the nominee's knowledge, experience and expertise in
occupational safety and health, particularly as it pertains to the
federal workforce; and
    6. A statement that the nominee is aware of the nomination, is
willing to regularly attend and participate in FACOSH meetings, and has
no apparent conflicts of interest that would preclude membership on
FACOSH.
    Member selection: The Secretary appoints FACOSH members based upon
criteria
    that include the nominee's level of responsibility for occupational
safety and health matters involving the federal workforce; experience
and competence in occupational safety and health; and willingness and
ability to regularly and fully participate in FACOSH meetings. Federal
agency management nominees who serve as their agency's Designated
Agency Safety and Health Official (DASHO), or have an equivalent level
of responsibility within their respective federal agencies, are
preferred as management members. Labor nominees who have
responsibilities for federal employee occupational safety and health
matters within their respective labor organizations are preferred as
labor members.
    Information received through the nomination process, along with
other relevant sources of information, will assist the Secretary in
making appointments to FACOSH. In selecting FACOSH members, the
Secretary will consider individuals nominated in response to this
Federal Register notice, as well as other qualified individuals. OSHA
will publish a list of the new FACOSH members in the Federal Register.
    OSHA will consider any nomination submitted in response to this
notice for the vacancies that occur on January 1, 2017. In addition,
OSHA will consider the nominations for any vacancy that may occur
during 2017, provided the information the nominee submitted continues
to remain current and accurate. OSHA believes that ``rolling over''
nominations for future consideration will make it easier for interested
individuals to submit nominations and be considered for membership on
FACOSH. This process also will provide OSHA with a broad base of
nominations for ensuring that FACOSH membership is fairly balanced,
which the Federal Advisory Committee Act requires (5 U.S.C. App.2,
Section (5)(b)(2); 41 CFR 102-3.30(c)). OSHA will continue to request
nominations as vacancies occur, but nominees whose information is
current and accurate will not need to resubmit a nomination.

Public Participation, Submissions, and Access to Public Record

    Instructions for submitting nominations: Interested individuals may
submit nominations and supplemental materials using one of the methods
listed in the ADDRESSES section. All nominations, attachments and other
materials must identify the agency name and the docket number for this
Federal Register notice (Docket No. OSHA-2016-0002). You may supplement
electronic nominations by uploading materials electronically. If,
instead, you wish to submit hard copies of materials to supplement an
electronic submission, you must submit them to the OSHA Docket Office
(see ADDRESSES section). The additional material must clearly identify
your electronic submission by name and docket number so that the
materials can be attached to your nomination.
    Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of nominations. For
information about security procedures concerning the submission of
materials by mail, hand, express delivery, messenger or courier
service, please contact the OSHA Docket Office (see ADDRESSES section).
    All submissions in response to this Federal Register notice are
posted without change in the FACOSH docket and may be made available
online at http://www.regulations.gov. Therefore,

OSHA cautions interested parties about submitting personal information,
such as Social Security numbers and birthdates. Information on
submitting nominations and supporting materials in response to this
Federal Register notice is available at http://www.regulations.gov and
from the OSHA Docket Office.
    Access to docket and other materials: To read or download
nominations and additional materials submitted in response to this
Federal Register notice, go to Docket No. OSHA-2016-0002 at: http://www.regulations.gov. All submissions are listed in the docket index;
however, some documents (e.g., copyrighted materials) are not publicly
available to read or download through that Web page. All submissions,
including copyrighted materials, are available at the OSHA Docket
Office. Contact the OSHA Docket Office for information about materials
not available through http://www.regulations.gov, and for assistance
using the internet to locate submissions.
    Electronic copies of this Federal Register notice are available at:
http://www.regulations.gov. This document, as well as news releases and
other relevant information, also is available at OSHA's Web page at:
http://www.osha.gov.

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, directed the preparation of this notice
pursuant to 5 U.S.C. 7902; 5 U.S.C. App. 2; 29 U.S.C. 668; Executive
Order 12196 (45 FR 12629 (2/27/1980)), as amended; 41 CFR part 102-3;
and Secretary of Labor's Order No. 1-2012 (77 FR 3912).

    Signed at Washington, DC, on August 1, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2016-18622 Filed 8-4-16; 8:45 am]
 BILLING CODE 4510-26-P


[Federal Register Volume 80, Number 65 (Monday, April 6, 2015)]
[Notices]
[Page 18399]
[FR Doc No: 2015-07762]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 516-482]

South Carolina Electric and Gas Company; Notice of Application
Accepted for Filing and Soliciting Comments, Motions To Intervene, and
Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Non-Project Use of Project Lands and Waters.
    b. Project No: 516-482.
    c. Date Filed: March 19, 2015.
    d. Applicant: South Carolina Electric and Gas Company.
    e. Name of Project: Saluda Project.
    f. Location: Saluda River in Richland, Lexington, Saluda, and
Newberry counties, South Carolina.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r
    h. Applicant Contact: Tommy Boozer, Manager, Lake Management
Programs, South Carolina Electric and Gas Company, 6248 Bush River
Road, Columbia, South Carolina 29212; Telephone:<PHONE_NUMBER>.
    i. FERC Contact: Shana High at<PHONE_NUMBER>, or email:
<EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene, and
protests: April 29, 2015.
    All documents may be filed electronically via the Internet. See 18
CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web
site at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can
submit brief comments up to 6,000 characters, without prior
registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information
at the end of your comments. For assistance, please contact FERC Online
Support at<EMAIL_ADDRESS>or toll free at 1-866-208-3676,
or for TTY,<PHONE_NUMBER>. Although the Commission strongly encourages
electronic filing, documents may also be paper-filed. To paper-file,
mail an original and seven copies to: Secretary, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426.
Please include the project number (P-516-482) on any comments, motions,
or recommendations filed.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervenor files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency.
    k. Description of Request: South Carolina Electric and Gas Company
requests Commission approval to permit the South Carolina Department of
Parks, Recreation, and Tourism to replace and expand its existing 33-
slip Dreher Island Marina at Dreher Island State Park with a facility
that would accommodate 100 boats.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov using the
``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field (P-516) to access the document. You
may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances
related to this or other pending projects. For assistance, call 1-866-
208-3676 or email<EMAIL_ADDRESS>for TTY, call (202) 502-
8659. A copy is also available for inspection and reproduction at the
address in item (h) above. Agencies may obtain copies of the
application directly from the applicant.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214, respectively. In determining the appropriate action to take, the
Commission will consider all protests or other comments filed, but only
those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    o. Filing and Service of Documents: Any filing must (1) bear in all
capital letters the title ``COMMENTS'', ``PROTEST'', or ``MOTION TO
INTERVENE'' as applicable; (2) set forth in the heading the name of the
applicant and the project number of the application to which the filing
responds; (3) furnish the name, address, and telephone number of the
person commenting, protesting or intervening; and (4) otherwise comply
with the requirements of 18 CFR 385.2001 through 385.2005. All
comments, motions to intervene, or protests must set forth their
evidentiary basis. Any filing made by an intervenor must be accompanied
by proof of service on all persons listed in the service list prepared
by the Commission in this proceeding, in accordance with 18 CFR
385.2010.

    Dated: March 30, 2015.
Kimberly D. Bose,
Secretary.
[FR Doc. 2015-07762 Filed 4-3-15; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: February 16, 2007 (Volume 72, Number 32)]
[Notices]
[Page 7644-7645]
[DOCID:fr16fe07-72]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP07-166-000]

El Paso Natural Gas Company; Notice of Tariff Filing

February 9, 2007.
    Take notice that on February 5, 2007, El Paso Natural Gas Company
(EPNG) tendered for filing as part of its FERC Gas Tariff, Second
Revised Volume No. 1-A, Thirty-Second Revised Sheet No. 1, to become
effective March 1, 2007.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov
.

Persons unable to file electronically should submit an original and 14
copies of the protest or intervention to the Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
 [FR Doc. E7-2704 Filed 2-15-07; 8:45 am]

BILLING CODE 6717-01-P