[Federal Register: May 1, 2007 (Volume 72, Number 83)]
[Notices]
[Page 23856-23861]
[DOCID:fr01my07-99]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-27783; File No. 812-13334]

XTF Advisors Trust, et al.; Notice of Application

April 25, 2007.

AGENCY: Securities and Exchange Commission (``SEC'' or the
``Commission'').

ACTION: Notice of Application for exemption pursuant to Section 6(c) of
the Investment Company Act of 1940, as amended (the ``1940 Act''), for
an exemption from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder.

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

Applicants: XTF Advisors Trust (the ``Trust'') and XTF Advisors LLC,
(the ``Investment Advisor''), (collectively the ``Applicants'').

Summary of Application: Applicants request an order pursuant to Section
6(c) of the 1940 Act exempting certain life insurance companies and
their separate accounts that currently invest or may hereafter invest
in the Insurance Funds (defined below) from the provisions of Sections
9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of
the Trust and shares of any future investment companies that are
designed to fund insurance products and for which the Investment
Advisor or any of its affiliates may serve as investment manager,
investment adviser, subadviser, administrator, principal underwriter or
sponsor (each, an ``Insurance Fund'' and collectively, the ``Insurance
Funds'') to be sold to and held by: (a) Separate accounts funding
variable annuity contracts and variable life insurance policies
(collectively ``Variable Contracts'') issued by both affiliated life
insurance companies and unaffiliated life insurance companies; (b)
trustees of qualified group pension and group retirement plans outside
of the separate account context (``Qualified Plans''); (c) separate
accounts that are not registered as investment companies under the 1940
Act pursuant to exemptions from registration under Section 3(c) of the
1940 Act; (d) any Advisor to an Insurance Fund for the purpose of
providing seed capital to an Insurance Fund; and (e) any other account
of a Participating Insurance Company permitted to hold shares of an
Insurance Fund (``General Accounts'').

Filing Date: The Application was filed on October 17, 2006, and amended
on April 17, 2007.

Hearing or Notification of Hearing: If no hearing is ordered, the
requested exemption will be granted. Any interested person may request
a hearing on this Application, or ask to be notified if a hearing is
ordered. Any requests must be received by the Commission by 5:30 p.m.
on May 21, 2007. Request a hearing in writing, giving the nature of
your interest, the reason for the request, and the issues you contest.
Serve the Applicants with the request, either personally or by mail,
and also send it to the Secretary of the Commission, along with proof
of service by affidavit, or in the case of any attorney-at-law by
certificate. Request notification of the date of a hearing by writing
to the Secretary of the Commission.

ADDRESSES: The Commission: Secretary, Securities and Exchange
Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants:
c/o JoAnn Strasser, Esq., Thompson Hine LLP, 312 Walnut St., Suite
1400, Cincinnati Ohio 45202.

FOR FURTHER INFORMATION CONTACT: Robert S. Lamont, Jr., Senior Counsel,
or Joyce M. Pickholz, Branch Chief, Office of Insurance Products,
Division of Investment Management, at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The following is a summary of the
Application; the complete Application is available for a fee from the
Commission's Public Reference Branch, 100 F Street, NE., Room 1580,
Washington, DC 20549-1090 (telephone<PHONE_NUMBER>).

Applicants' Representations

    1. Each Insurance Fund is registered under the 1940 Act as an open-
end management investment company. The Trust was organized under
Delaware law on October 10, 2006 and is registered under the 1940 Act
as a management investment company (File Nos. 811-21971/333-138261).
    2. The Investment Advisor was organized in 2002, under the laws of
the State of Delaware, and registered with the Commission under the
Investment Advisors Act of 1940, as amended, in 2005. The sole member
of the Investment Advisor is XTF L.P., a Delaware limited partnership.
    3. Applicants represent that the Trust intends to, and other
Insurance Funds may in the future, offer Shares to separate accounts of
affiliated and unaffiliated insurance companies in order to fund
various types of insurance products. These separate accounts are, or
will be, registered as investment companies under the 1940 Act or will
be exempt from such registration under Section 3(c) of the 1940 Act
(individually a ``Separate Account'' and collectively the ``Separate
Accounts''). Insurance companies whose Separate Account(s) may now or
in the future own Shares are referred to herein as ``Participating
Insurance Companies.''
    4. Applicants represent that the Participating Insurance Companies
have established, or will establish, their own Separate Accounts and
design their own Variable Contracts. Each Participating Insurance
Company has, or will have, the legal obligation to satisfy all
applicable requirements under both State and Federal law. Each
Participating Insurance Company may rely on Rule 6e-2 or Rule 6e-3(T)
under the 1940 Act, although in connection with the establishment and
maintenance of Separate Accounts funding variable life insurance
policies some Participating Insurance Companies may rely on individual
exemptive orders as well.
    5. Applicants state that each Participating Insurance Company on
behalf of its Separate Accounts has entered, or will enter, into a
participation agreement with each Insurance Fund in which it invests
which will govern participation by the Participating Insurance Company
in such Insurance Fund (a ``Participation Agreement''). The role of the
Insurance Fund under this arrangement, insofar as Federal securities
laws are applicable, will consist of offering Shares to the Separate
Accounts and fulfilling any conditions that the Commission may impose
upon granting the order requested herein.
    6. Applicants propose that the Insurance Funds also be permitted to
offer and/or sell Shares to Qualified Plans administered by a Trustee.
Section 817(h) of the Internal Revenue Code of 1986, as amended (the
``Code''), imposes certain diversification standards on the underlying
assets of Separate Accounts funding Variable Contracts. In particular,
the Code provides that Variable Contracts shall not be treated as an
annuity contract or life insurance policy for any period (and any
subsequent period) for which the underlying assets are not, in
accordance with regulations prescribed by the Treasury Department,
adequately diversified. On March 2, 1989, the Treasury Department
issued Treasury Regulations (Treas. Reg. Section 1.817-

5) that established diversification requirements for Variable
Contracts, which require the Separate Accounts upon which these
contracts or policies are based to be diversified as provided in the
Treasury Regulations. In the case of Separate Accounts that invest in
underlying investment companies, the Treasury Regulations provide a
``look through'' rule that permits the Separate Account to look to the
underlying investment company for purposes of meeting the
diversification requirements, provided that the beneficial interests in
the investment company are held only by the segregated asset accounts
of one or more insurance companies. However, the Treasury Regulations
also contain certain exceptions to this requirement, one of which
allows shares in an investment company to be held by the trustee of a
qualified pension or retirement plan without adversely affecting the
ability of shares in the same investment company to also be held by
Separate Accounts funding Variable Contracts (Treas. Reg. Section
1.817-5(f)(3)(iii)). Another exception allows the investment adviser of
the investment company and certain companies related to the investment
adviser to hold shares of the investment company, an exception that is
often used to provide the capital required by Section 14(a) of the 1940
Act.
    7. Qualified Plans may choose the Shares offered as the sole
investment under the Qualified Plan or as one of several investments.
Qualified Plan participants may or may not be given an investment
choice depending on the terms of the Qualified Plan itself. Exercise of
voting rights by participants in any such Qualified Plans, as opposed
to the trustees of such Qualified Plans, cannot be mandated by the
Applicants. Each Qualified Plan must be administered in accordance with
the terms of the Qualified Plan and as determined by its trustee or
trustees. To the extent permitted under applicable law, an Advisor may
act as investment adviser or trustee to Qualified Plans that purchase
Shares.
    8. Applicants propose that the Insurance Funds also be permitted to
offer and/or sell Shares to an Advisor. The Treasury Regulations permit
such sales as long as the return on Shares held by the Advisor or its
affiliates is computed in the same manner as for Shares held by the
Separate Accounts, and the Advisor does not intend to sell the Shares
to the public. The Treasury Regulations impose an additional
restriction on sales to an Advisor, who may hold Shares only in
connection with the creation of an Insurance Fund. Applicants
anticipate that sales will be made to an Advisor for the purpose of
providing necessary capital required by Section 14(a) of the 1940 Act.
Any Shares purchased by an Advisor will automatically be redeemed if
and when the Advisor's investment advisory agreement terminates.
    9. Applicants propose that the Insurance Funds also be permitted to
offer and/or sell Shares to General Accounts. The Treasury Regulations
permit sales to General Accounts as long as the return on Shares held
by General Accounts is computed in the same manner as for Shares held
by a Separate Account, and the General Accounts do not intend to sell
the Shares to the Public. Applicants anticipate that sales may be made
to General Accounts for purposes of creation of the Insurance Funds.

Applicants' Legal Analysis

    1. In connection with the funding of scheduled premium variable
life insurance policies issued through a Separate Account registered as
a unit investment trust (``UIT'') under the 1940 Act, Rule 6e-2(b)(15)
provides partial exemptions from Sections 9(a), 13(a), 15(a), and 15(b)
of the 1940 Act. Section 9(a)(2) of the 1940 Act makes it unlawful for
any company to serve as an investment adviser or principal underwriter
of any UIT, if an affiliated person of that company is subject to
disqualification enumerated in Section 9(a)(1) or (2) of the 1940 Act.
Sections 13(a), 15(a) and 15(b) of the 1940 Act have been deemed by the
Commission to require ``pass-through'' voting with respect to an
underlying investment company's shares. Rule 6e-2(b)(15) provides these
exemptions apply only where all of the assets of the UIT are shares of
management investment companies ``which offer their shares exclusively
to variable life insurance separate accounts of the life insurer or of
any affiliated life insurance company.'' Therefore, the relief granted
by Rule 6e-2(b)(15) is not available with respect to a scheduled
premium life insurance Separate Account that owns shares of an
underlying fund that also offers its shares to a variable annuity
Separate Account or a flexible premium variable life insurance Separate
Account of the same company or any other affiliated company. The use of
a common management investment company as the underlying investment
vehicle for both variable annuity and variable life insurance Separate
Accounts of the same life insurance company or of any affiliated life
insurance company is referred to herein as ``mixed funding.''
    2. The relief granted by Rule 6e-2(b)(15) also is not available
with respect to a scheduled premium variable life insurance Separate
Account that owns shares of an underlying fund that also offers its
shares to Separate Accounts funding Variable Contracts issued by one or
more unaffiliated life insurance companies. The use of a common
management investment company as the underlying investment vehicle for
Separate Accounts funding Variable Contracts issued by one or more
unaffiliated life insurance companies is referred to herein as ``shared
funding.''
    3. Moreover, because the relief under Rule 6e-2(b)(15) is available
only where shares are offered exclusively to variable life insurance
Separate Accounts of a life insurer or any affiliated life insurance
company, additional exemptive relief is necessary if the Shares are
also to be sold to Qualified Plans, an Advisor and General Accounts
(collectively, ``Eligible Purchasers''). Applicants note that if the
Shares were sold only to Separate Accounts funding variable annuity
contracts and/or Eligible Purchasers, exemptive relief under Rule 6e-
2(b)(15) would not be necessary. The relief provided for under this
section does not relate to Eligible Purchasers or to a registered
investment company's ability to sell its shares to Eligible Purchasers.
The use of a common management investment company as the underlying
investment vehicle for Separate Accounts funding Variable Contracts
issued by affiliated and unaffiliated insurance companies, and for
Eligible Purchasers, is referred to herein as ``extended mixed and
shared funding.''
    4. In connection with flexible premium variable life insurance
contracts issued through a Separate Account registered under the 1940
Act as a UIT, Rule 6e-3(T)(b)(15) provides partial exemptions from
Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act. The exemptions
granted by Rule 6e-3(T)(b)(15) are available only where all the assets
of the Separate Account consist of the shares of one or more registered
management investment companies that offer to sell their shares
``exclusively to separate accounts of the life insurer, or of any
affiliated life insurance companies, offering either scheduled
contracts or flexible contracts, or both; or which also offer their
shares to variable annuity separate accounts of the life insurer or of
an affiliated life insurance company or which offer their shares to any
such life insurance company in consideration solely for advances made
by the life insurer in connection with the operation

of the separate account.'' Therefore, Rule 6e-3(T)(b)(15) permits mixed
funding but does not permit shared funding.
    5. Moreover, because the relief under Rule 6e-3(T)(b)(15) is
available only where Shares are offered exclusively to Separate
Accounts funding Variable Contracts issued by a life insurer or any
affiliated life insurance company, additional exemptive relief is
necessary if the Shares are also to be sold to Eligible Purchasers.
Applicants note that if the Shares were sold only to Separate Accounts
funding variable annuity contracts and/or Eligible Purchasers,
exemptive relief under Rule 6e-3(T)(b)(15) would not be necessary. The
relief provided for under this section does not relate to Eligible
Purchasers or to a registered investment company's ability to sell its
shares to Eligible Purchasers.
    6. Applicants maintain that there is no policy reason for the sale
of the Shares to Eligible Purchasers to result in a prohibition
against, or otherwise limit a Participating Insurance Company from
relying on the relief provided by Rules 6e-2(b)(15) and 6e-3(T)(b)(15).
However, because the relief under Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
is available only when shares are offered exclusively to certain
Separate Accounts, additional exemptive relief may be necessary if the
Shares are also to be sold to Eligible Purchasers. Applicants therefore
request relief in order to have the Participating Insurance Companies
enjoy the benefits of the relief granted in Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) even where Eligible Purchasers are investing in the
relevant Insurance Fund. Applicants note that if the Shares were to be
sold only to Eligible Purchasers, and/or Separate Accounts funding
variable annuity contracts, exemptive relief under Rule 6e-2(b)(15) and
Rule 6e-3(T)(b)(15) would be unnecessary. The relief provided for under
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) does not relate to Eligible
Purchasers, or to a registered investment company's ability to sell its
shares to Eligible Purchasers.
    7. Consistent with the Commission's authority under Section 6(c) of
the 1940 Act to grant exemptive orders to a class or classes of persons
and transactions, this Application requests relief for the class
consisting of Participating Insurance Companies and their Separate
Accounts (and to the extent necessary, investment advisers, principal
underwriters and depositors of such Separate Accounts).
    8. In effect, the partial relief granted in Rules 6e-2(b)(15) and
6e-3(T)(b)(15) under the 1940 Act from the requirements of Section 9 of
the 1940 Act limits the amount of monitoring necessary to ensure
compliance with Section 9 to that which is appropriate in light of the
policy and purposes of Section 9. Those rules recognize that it is not
necessary for the protection of investors or the purposes fairly
intended by the policy and provisions of the 1940 Act to apply the
provisions of Section 9(a) to individuals in a large insurance complex,
most of whom will have no involvement in matters pertaining to
investment companies in that organization. Applicants assert that it is
also unnecessary to apply Section 9(a) of the 1940 Act to the many
individuals in various unaffiliated insurance companies (or affiliated
companies of Participating Insurance Companies) that may utilize the
Insurance Fund as investment vehicles for Variable Contracts.
Applicants argue that there is no regulatory purpose in extending the
monitoring requirements to embrace a full application of Section 9(a)'s
eligibility restrictions because of mixed funding or shared funding and
sales to Qualified Plans, an Advisor or General Accounts. Applicants
represent that the Participating Insurance Companies and Qualified
Plans are not expected to play any role in the management of the
Insurance Funds. Applicants argue that those individuals who
participate in the management of the Insurance Funds will remain the
same regardless of which Separate Accounts or Qualified Plans invest in
the Insurance Funds. Applying the monitoring requirements of Section
9(a) of the 1940 Act because of investment by Separate Accounts of
Participating Insurance Companies or Qualified Plans would be
unjustified and would not serve any regulatory purpose and could reduce
the net rates of return realized by contract owners and Qualified Plan
holders due to increased monitoring costs.
    9. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) under the 1940
Act provide exemptions from pass-through voting requirements with
respect to several significant matters, assuming the limitations on
mixed and shared funding are observed. Rules 6e-2(b)(15)(iii)(A) and
6e-3(T)(b)(15)(iii)(A) provide that the insurance company may disregard
the voting instructions of its contract owners with respect to the
investments of an underlying fund, or any contract between such a fund
and its investment adviser, when required to do so by an insurance
regulatory authority (subject to the provisions of Rules 6e-2(b)(5)(i),
6e-2(b)(7)(ii)(A), 6e-3(T)(b)(5)(i) and 6e-3(T)(b)(7)(ii)(A) under the
1940 Act). Rules 6e-2(b)(15)(iii)(B) and 6e-3(T)(b)(15)(iii)(A)(2)
provide that an insurance company may disregard the voting instructions
of its contract owners if the contract owners initiate any change in an
underlying fund's investment policies, principal underwriter or any
investment adviser (provided that disregarding such voting instructions
is reasonable and subject to the other provisions of Rules 6e-
2(b)(5)(ii), 6e-2(b)(7)(ii)(B), 6e-2(b)(7)(ii)(C), 6e-3(T)(b)(5)(ii),
6e-3(T)(b)(7)(ii)(B), and 6e-3(T)(b)(7)(ii)(C) under the 1940 Act).
    10. Rule 6e-2 under the 1940 Act recognizes that a variable
insurance contract, as an insurance contract, has important elements
unique to insurance contracts and is subject to extensive State
regulation. In adopting Rule 6e-2(b)(15)(iii), the Commission expressly
recognized that State insurance regulators have authority, pursuant to
State insurance laws or regulations, to disapprove or require changes
in investment policies, investment advisers, or principal underwriters.
The Commission also expressly recognized that State insurance
regulators have authority to require an insurer to draw from its
general account to cover costs imposed upon the insurer by a change
approved by contract owners over the insurer's objection. The
Commission, therefore, deemed such exemptions necessary ``to assure the
solvency of the life insurer and performance of its contractual
obligations by enabling an insurance regulatory authority or the life
insurer to act when certain proposals reasonably could be expected to
increase the risks undertaken by the life insurer.'' In this respect,
flexible premium variable life insurance contracts are identical to
scheduled premium variable life insurance contracts. Therefore, the
corresponding provisions of Rule 6e-3(T) under the 1940 Act undoubtedly
were adopted in recognition of the same factors.
    11. Applicants also assert that the sale of Shares to Qualified
Plans, an Advisor and General Accounts will not have any impact on the
relief requested herein. With respect to Qualified Plans, which are not
registered as investment companies under the 1940 Act, shares of a
portfolio of an investment company sold to a Qualified Plan must be
held by the trustee(s) of the Qualified Plan pursuant to Section 403(a)
of the Employee Retirement Income Security Act (``ERISA''). Applicants
note that (1) Section 403(a) of ERISA endows Qualified Plan trustees
with the exclusive authority and responsibility for voting proxies
provided neither of two enumerated exceptions to that

provision applies; (2) some of the Qualified Plans may provide for the
trustee(s), an investment adviser (or advisers), or another named
fiduciary to exercise voting rights in accordance with instructions
from participants; and (3) there is no requirement to pass through
voting rights to Qualified Plan participants.
    12. Applicants argue that an Advisor and General Accounts are
similar in that they are not subject to any pass-through voting
requirements. Applicants therefore, conclude that unlike the case with
insurance company Separate Accounts, the issue of resolution of
material irreconcilable conflicts with respect to voting is not present
with Eligible Purchasers.
    13. Applicants represent that where a Qualified Plan does not
provide participants with the right to give voting instructions, the
trustee or named fiduciary has responsibility to vote the shares held
by the Qualified Plan. Accordingly, Applicants argue that even if an
Advisor or an affiliate of an Advisor were to serve in the capacity of
trustee or named fiduciary with voting responsibilities, an Advisor or
its affiliates would have a fiduciary duty to vote relevant Shares in
the best interest of the Qualified Plan participants.
    14. Further, Applicants assert that even if a Qualified Plan were
to hold a controlling interest in an Insurance Fund, Applicants do not
believe that such control would disadvantage other investors in such
Insurance Fund to any greater extent than is the case when any
institutional shareholder holds a majority of the voting securities of
any open-end management investment company. In this regard, Applicants
submit that investment in an Insurance Fund by a Qualified Plan will
not create any of the voting complications occasioned by mixed funding
or shared funding. Unlike mixed funding or shared funding, Qualified
Plan investor voting rights cannot be frustrated by veto rights of
insurers or State regulators.
    15. Where a Qualified Plan provides participants with the right to
give voting instructions, Applicants see no reason to believe that
participants in Qualified Plans generally or those in a particular
Qualified Plan, either as a single group or in combination with
participants in other Qualified Plans, would vote in a manner that
would disadvantage Variable Contract holders. Applicants assert that
the purchase of Shares by Qualified Plans that provide voting rights
does not present any complications not otherwise occasioned by mixed or
shared funding.
    16. Applicants do not believe that the sale of the Shares to
Qualified Plans will increase the potential for material irreconcilable
conflicts of interest between or among different types of investors. In
particular, Applicants see very little potential for such conflicts
beyond those that would otherwise exist between Variable Contract
owners.
    17. Applicants assert that permitting an Insurance Fund to sell its
shares to an Advisor or to the General Account of a Participating
Insurance Company will enhance management of each Insurance Fund
without raising significant concerns regarding material irreconcilable
conflicts. Unlike the circumstances of many investment companies that
serve as underlying investment media for variable insurance products,
an Insurance Fund may be deemed to lack an insurance company
``promoter'' for purposes of Rule 14a-2 under the 1940 Act.
Accordingly, any Insurance Funds that are established as new
registrants may be subject to the requirements of Section 14(a) of the
1940 Act, which generally requires that an investment company have a
net worth of $100,000 upon making a public offering of its shares.
Insurance Funds also will require more limited amounts of initial
capital in connection with the creation of any new series of Shares and
the voting of initial Shares of such series on matters requiring the
approval of Shareholders. A potential source of the requisite initial
capital is an Insurance Fund's investment adviser or a Participating
Insurance Company. Either of these parties may have an interest in
making the requisite capital investment and in participating with an
Insurance Fund in its organization. However, provision of seed capital
or the purchase of shares in connection with the management of an
Insurance Fund by its investment adviser or by a Participating
Insurance Company may be deemed to violate the exclusivity requirement
of Rule 6e-2(b)(15) and/or Rule 6e-3(T)(b)(15).
    18. Given the conditions of Treas. Reg. Section 1.817-5(f)(3) and
the harmony of interest between an Insurance Fund, on the one hand, and
an Advisor or a Participating Insurance Company, on the other,
Applicants assert that little incentive for overreaching exists.
Applicants further assert that such investment should not implicate the
concerns discussed above regarding the creation of material
irreconcilable conflicts. Instead, Applicants argue that permitting
investments by an Advisor, or by General Accounts, will permit the
orderly and efficient creation of an Insurance Fund, and reduce the
expense and uncertainty of using outside parties at the early stages of
the Insurance Fund's operations.

Applicants' Conditions

    Applicants consent to the following conditions with respect to each
Insurance Fund:
    1. A majority of the Board of each Insurance Fund will consist of
persons who are not ``interested persons'' of the Insurance Fund, as
defined by Section 2(a)(19) of the 1940 Act, and the rules thereunder,
and as modified by any applicable orders of the Commission, except that
if this condition is not met by reason of death, disqualification or
bona fide resignation of any trustee or trustees, then the operation of
this condition will be suspended: (a) For a period of 90 days if the
vacancy or vacancies may be filled by the Board; (b) for a period of
150 days if a vote of shareholders is required to fill the vacancy or
vacancies; or (c) for such longer period as the Commission may
prescribe by order upon application.
    2. The Board of each Insurance Fund will monitor the Insurance Fund
for the existence of any material irreconcilable conflict between the
interests of the contract owners of all Separate Accounts and
participants of all Qualified Plans investing in the Insurance Fund,
and determine what action, if any should be taken in response to such
conflicts. A material irreconcilable conflict may arise for a variety
of reasons, including: (a) An action by any State insurance regulatory
authority; (b) a change in applicable Federal or State insurance, tax,
or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretive letter, or any similar action by
insurance, tax or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of the Insurance Fund are being
managed; (e) a difference in voting instructions given by variable
annuity contract owners, variable life insurance contract owners, and
trustees of the Qualified Plans; (f) a decision by a Participating
Insurance Company to disregard the voting instructions of contract
owners; or (g) if applicable, a decision by a Qualified Plan to
disregard the voting instructions of Qualified Plan participants.
    3. Participating Insurance Companies (on their own behalf, as well
as by virtue of any investment of General Account assets in an
Insurance Fund), an Advisor, and any Trustee on behalf of any Qualified
Plan that executes a Participation Agreement upon becoming an owner of
10 percent or more of the

assets of an Insurance Fund (collectively, ``Participants'') will
report any potential or existing conflicts to the Board of the relevant
Insurance Fund. Participants will be responsible for assisting the
Board in carrying out the Board's responsibilities under these
conditions by providing the Board with all information reasonably
necessary for the Board to consider any issues raised. This
responsibility includes, but is not limited to, an obligation by each
Participating Insurance Company to inform the Board whenever contract
owner voting instructions are disregarded, and, if pass-through voting
is applicable, an obligation by each Trustee for a Qualified Plan to
inform the Board whenever it has determined to disregard Qualified Plan
participant voting instructions. The responsibility to report such
information and conflicts, and to assist the Board, will be a
contractual obligation of all Participating Insurance Companies under
their Participation Agreement with the relevant Insurance Fund, and
these responsibilities will be carried out with a view only to the
interests of the contract owners. The responsibility to report such
information and conflicts, and to assist the Board, also will be
contractual obligations of all Qualified Plans under their
Participation Agreement with the relevant Insurance Fund, and such
agreements will provide that these responsibilities will be carried out
with a view only to the interests of Qualified Plan participants.
    4. If it is determined by a majority of the Board of an Insurance
Fund, or a majority of the disinterested directors/trustees of such
Board, that a material irreconcilable conflict exists, then the
relevant Participant will, at its expense and to the extent reasonably
practicable (as determined by a majority of the disinterested
directors/trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including:
(a) Withdrawing the assets allocable to some or all of their Separate
Accounts from the relevant Insurance Fund and reinvesting such assets
in a different investment vehicle including another Insurance Fund,
submitting the question as to whether such segregation should be
implemented to a vote of all affected contract or policy owners and, as
appropriate, segregating the assets of any appropriate group (i.e.,
variable annuity contract owners or variable life insurance policy
owners of one or more Participating Insurance Companies) that votes in
favor of such segregation, or offering to the affected contract or
policy owners the option of making such a change; and (b) establishing
a new registered management investment company or managed separate
account. If a material irreconcilable conflict arises because of a
decision by a Participating Insurance Company to disregard contract or
policy owner voting instructions, and that decision represents a
minority position or would preclude a majority vote, then the
Participating Insurance Company may be required, at the election of the
relevant Insurance Fund, to withdraw such Participating Insurance
Company's Separate Account investments in the Insurance Fund, and no
charge or penalty will be imposed as a result of such withdrawal. If a
material irreconcilable conflict arises because of a Qualified Plan's
decision to disregard Qualified Plan participant voting instructions,
if applicable, and that decision represents a minority position or
would preclude a majority vote, the Qualified Plan may be required, at
the election of the Insurance Portfolio, to withdraw its investment in
the Insurance Fund, and no charge or penalty will be imposed as a
result of such withdrawal. The responsibility to take remedial action
in the event of a Board determination of a material irreconcilable
conflict and to bear the cost of such remedial action will be a
contractual obligation of all Participants under their Participation
Agreement with the relevant Insurance Fund, and these responsibilities
will be carried out with a view only to the interests of contract or
policy owners and Qualified Plan participants. For purposes of this
Condition 4, a majority of the disinterested directors/trustees of the
Board of each Insurance Fund will determine whether or not any proposed
action adequately remedies any material irreconcilable conflict, but,
in no event, will the Insurance Fund or an Advisor, as relevant, be
required to establish a new funding vehicle for any Variable Contract.
No Participating Insurance Company will be required by this Condition 4
to establish a new funding vehicle for any Variable Contract if any
offer to do so has been declined by vote of a majority of the contract
or policy owners materially and adversely affected by the material
irreconcilable conflict. Further, no Qualified Plan will be required by
this Condition 4 to establish a new funding vehicle for the Qualified
Plan if: (a) A majority of the Qualified Plan participants materially
and adversely affected by the irreconcilable material conflict vote to
decline such offer, or (b) pursuant to documents governing the
Qualified Plan, the Qualified Plan makes such decision without a
Qualified Plan participant vote.
    5. The determination by the Board of each Insurance Fund of the
existence of a material irreconcilable conflict and its implications
will be made known in writing promptly to all Participants.
    6. As to Variable Contracts issued by Separate Accounts registered
under the 1940 Act, Participating Insurance Companies will provide
pass-through voting privileges to all Variable Contract owners as
required by the 1940 Act as interpreted by the Commission. However, as
to Variable Contracts issued by unregistered Separate Accounts, pass-
through voting privileges will be extended to contract owners to the
extent granted by the issuing insurance company. Accordingly, such
Participants, where applicable, will vote the Shares held in their
Separate Accounts in a manner consistent with voting instructions
timely received from Variable Contract owners. Participating Insurance
Companies will be responsible for assuring that each Separate Account
investing in the relevant Insurance Fund calculates voting privileges
in a manner consistent with other Participants. The obligation to
calculate voting privileges as provided in this Application will be a
contractual obligation of all Participating Insurance Companies under
their Participation Agreement with the relevant Insurance Fund. Each
Participating Insurance Company will vote Shares for which it has not
received timely voting instructions, as well as Shares held in its
General Account or otherwise attributed to it, in the same proportion
as it votes those Shares for which it has received voting instructions.
Each Qualified Plan will vote as required by applicable law and
governing Qualified Plan documents.
    7. As long as the 1940 Act requires pass-through voting privileges
to be provided to Variable Contract owners, an Advisor, who has
provided seed capital for the Insurance Fund, and any General Account
will vote their respective Shares in the same proportion as all
variable contract owners having voting rights with respect to that
Insurance Fund; provided, however, that an Advisor or any General
Account shall vote its Shares in such other manner as may be required
by the Commission or its staff.
    8. Each Insurance Fund will comply with all provisions of the 1940
Act requiring voting by shareholders, which, for these purposes, shall
be the persons having a voting interest in the Shares, and, in
particular, the Insurance Fund will either provide for annual meetings
(except to the extent that the

Commission may interpret Section 16 of the 1940 Act not to require such
meetings) or comply with Section 16(c) of the 1940 Act (although each
Insurance Fund is not, or will not be, one of those trusts of the type
described in Section 16(c) of the 1940 Act), as well as with Section
16(a) of the 1940 Act and, if and when applicable, Section 16(b) of the
1940 Act. Further, each Insurance Fund will act in accordance with the
Commission's interpretations of the requirements of Section 16(a) with
respect to periodic elections of directors/trustees and with whatever
rules the Commission may promulgate thereto.
    9. An Insurance Fund will make its Shares available to the Separate
Accounts and Qualified Plans at or about the time it accepts any seed
capital from an Advisor or General Account of a Participating Insurance
Company.
    10. Each Insurance Fund has notified, or will notify, all
Participants that Separate Account prospectus disclosure or Qualified
Plan prospectuses or other Qualified Plan disclosure documents
regarding potential risks of mixed and shared funding may be
appropriate. Each Insurance Fund will disclose in its prospectus that:
(a) Shares of the Insurance Fund may be offered to Separate Accounts
funding both variable annuity contracts and variable life insurance
policies and, if applicable, to Qualified Plans; (b) due to differences
in tax treatment and other considerations, the interests of various
contract owners participating in the Insurance Fund and the interests
of Qualified Plans investing in the Insurance Fund, if applicable, may
conflict; and (c) the Insurance Fund's Board will monitor events in
order to identify the existence of any material irreconcilable
conflicts and to determine what action, if any, should be taken in
response to any such conflict.
    11. If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the
1940 Act are amended, or proposed Rule 6e-3 under the 1940 Act is
adopted, to provide exemptive relief from any provision of the 1940
Act, or the rules promulgated thereunder, with respect to mixed or
shared funding, on terms and conditions materially different from any
exemptions granted in the order requested in this Application, then
each Insurance Fund and/or Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with
Rules 6e-2 or 6e-3(T), or Rule 6e-3, as such rules are applicable.
    12. Each Participant, at least annually, will submit to the Board
of each Insurance Fund such reports, materials or data as the Board
reasonably may request so that the directors/trustees of the Board may
fully carry out the obligations imposed upon the Board by the
conditions contained in this Application. Such reports, materials and
data will be submitted more frequently if deemed appropriate by the
Board of an Insurance Fund. The obligations of the Participants to
provide these reports, materials and data to the Board, when it so
reasonably requests, will be a contractual obligation of all
Participants under their Participation Agreement with the relevant
Insurance Fund.
    13. All reports of potential or existing conflicts received by the
Board of each Insurance Fund, and all Board action with regard to
determining the existence of a conflict, notifying Participants of a
conflict and determining whether any proposed action adequately
remedies a conflict, will be properly recorded in the minutes of the
Board or other appropriate records, and such minutes or other records
shall be made available to the Commission upon request.
    14. Each Insurance Fund will not accept a purchase order from a
Qualified Plan if such purchase would make the Qualified Plan an owner
of 10 percent or more of the assets of the Insurance Fund unless the
Trustee for such Qualified Plan executes an agreement with the
Insurance Fund governing participation in the Insurance Fund that
includes the conditions set forth herein to the extent applicable. A
Trustee for a Qualified Plan will execute an application containing an
acknowledgement of this condition at the time of its initial purchase
of Shares.

Conclusions

    Applicants submit that, for the reasons summarized above and to the
extent necessary or appropriate to provide for the transactions
described herein, the requested exemptions from Sections 9(a), 13(a),
15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) thereunder, in accordance with the standards of Section
6(c) of the 1940 Act, are in the public interest and consistent with
the protection of investors and the purposes fairly intended by the
policy and provisions of the 1940 Act.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-8231 Filed 4-30-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 77, Number 185 (Monday, September 24, 2012)]
[Notices]
[Page 58880]
[FR Doc No: 2012-23575]

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

SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Public Law 94-409, that the Securities
and Exchange Commission will hold a Closed Meeting on Thursday,
September 27, 2012 at 2 p.m.
    Commissioners, Counsel to the Commissioners, the Secretary to the
Commission, and recording secretaries will attend the Closed Meeting.
Certain staff members who have an interest in the matters also may be
present.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR
200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the
scheduled matters at the Closed Meeting.
    Commissioner Aguilar, as duty officer, voted to consider the items
listed for the Closed Meeting in a closed session.
    The subject matter of the Closed Meeting scheduled for Thursday,
September 27, 2012 will be:
    Institution and settlement of injunctive actions;
    Institution and settlement of administrative proceedings; and
    Other matters relating to enforcement proceedings.
    At times, changes in Commission priorities require alterations in
the scheduling of meeting items.
    For further information and to ascertain what, if any, matters have
been added, deleted or postponed, please contact: The Office of the
Secretary at<PHONE_NUMBER>.

    Dated: September 20, 2012.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-23575 Filed 9-20-12; 4:15 pm]
BILLING CODE 8011-01-P


[Federal Register Volume 87, Number 173 (Thursday, September 8, 2022)]
[Notices]
[Pages 55076-55077]
[FR Doc No: 2022-19434]

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0136]

Agency Information Collection Activities; Renewal of an Approved
Information Collection: Transportation of Hazardous Materials; Highway
Routing

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).

ACTION: Notice and request for comments.

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

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FMCSA
announces its plan to submit the Information Collection Request (ICR)
described below to the Office of Management and Budget (OMB) for its
review and approval and invites public comment. FMCSA requests approval
to renew an ICR titled, ``Transportation of Hazardous Materials,
Highway Routing.'' The information reported by States and Indian tribes
is necessary to identify designated/restricted routes and restrictions
or limitations affecting how motor carriers may transport certain
hazardous materials on highways, including dates that such routes were
established and information on subsequent changes or new hazardous
materials routing designations.

DATES: Comments on this notice must be received on or before November
7, 2022.

ADDRESSES: You may submit comments identified by Federal Docket
Management System (FDMS) Docket Number FMCSA-2022-0136 using any of the
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Dockets Operations; U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001 between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.

    Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments, see
the Public Participation heading below. Note that all comments received
will be posted without change to https://www.regulations.gov, including
any personal information provided. Please see the Privacy heading
below.
    Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov, and follow the
online instructions for accessing the docket, or go to the street
address listed above.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its decision making process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
    Public Participation: The Federal eRulemaking Portal is available
24 hours each day, 365 days each year. You can obtain electronic
submission and retrieval help and guidelines under the ``FAQ'' section
of the Federal eRulemaking Portal website. If you want us to notify you
that we received your comments, please include a self-addressed,
stamped envelope or postcard, or print the acknowledgement page that
appears after submitting comments online. Comments received after the
comment closing date will be included in the docket and will be
considered to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Ms. Melissa Williams, Office of
Safety, Hazardous Materials Division, DOT, FMCSA, West Building 6th
Floor, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; 202-366-
4163; [email protected].

SUPPLEMENTARY INFORMATION: Background: The data for the Transportation
of Hazardous Materials; Highway Routing ICR is collected under
authority of 49 U.S.C. 5112 and 5125. Specifically, 49 U.S.C. 5112(c)
requires that the Secretary, in coordination with the States, ``shall
update and publish periodically a list of currently effective hazardous
material highway route designations.'' This authority is delegated to
FMCSA in 49 CFR 1.87(d)(2).
    In 49 CFR 397.73, FMCSA requires that each State and Indian tribe,
through its routing agency, provide information identifying new, or
changes to existing, hazardous materials routing designations within
its jurisdiction within 60 days after their establishment (or 60 days
of the change). That information is collected and consolidated by FMCSA
and published annually, in whole or as updates, in the Federal Register
and on its website at https://www.fmcsa.dot.gov/regulations/hazardous-materials/national-hazardous-materials-route-registry.
    Title: Transportation of Hazardous Materials, Highway Routing.
    OMB Control Number: 2126-0014.
    Type of Request: Renewal of a currently approved ICR.
    Respondents: The reporting burden is shared by 50 States, the
District of Columbia, Indian tribes with designated routes, and U.S.
Territories including Puerto Rico, American Samoa, Guam, the
Commonwealth of the Northern Mariana Islands and the U.S. Virgin
Islands.
    Estimated Number of Respondents: 57 [36 States + the District of
Columbia, with designated hazardous materials highway routes + 19
States/U.S. Territories without designated hazardous materials highway
routes + 1 Indian tribe with a designated route = 57].
    Estimated Time per Response: 15 minutes.
    Expiration Date: April 30, 2023.
    Frequency of Response: Once every two years.
    Estimated Total Annual Burden: 7 hours [57 annual respondents x 1
response per 2 years x 15 minutes per response/60 minutes per response
= 7.125 hours rounded to 7 hours].
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including: (1) whether the proposed
collection is necessary for the performance of FMCSA's functions; (2)
the accuracy of the estimated burden; (3) ways for FMCSA to enhance the
quality, usefulness, and clarity of the collected information; and (4)
ways that the burden could be minimized without reducing the quality of
the collected information. The Agency will summarize or include your
comments in the request for OMB's clearance of this ICR.

    Issued under the authority of 49 CFR 1.87.
Thomas P. Keane,
Associate Administrator Office of Research and Registration.
[FR Doc. 2022-19434 Filed 9-7-22; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 87, Number 181 (Tuesday, September 20, 2022)]
[Rules and Regulations]
[Pages 57379-57384]
[FR Doc No: 2022-20316]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2020-0874; Amdt. No. 91-359A]
RIN 2120-AL75

Extension of the Prohibition Against Certain Flights in the
Tehran Flight Information Region (FIR) (OIIX)

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule.

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

SUMMARY: This action extends, for an additional two years, the
prohibition against certain flight operations in the Tehran Flight
Information Region (FIR) (OIIX) by all: U.S. air carriers; U.S.
commercial operators; persons exercising the privileges of an airman
certificate issued by the FAA, except when such persons are operating
U.S.-registered aircraft for a foreign air carrier; and operators of
U.S.-registered civil aircraft, except when the operator of such
aircraft is a foreign air carrier. The FAA finds this action to be
necessary to address continuing hazards to persons and aircraft engaged
in such flight operations. The FAA also republishes, with minor
administrative revisions, the approval process and exemption
information for this Special Federal Aviation Regulation (SFAR),
consistent with other recently published flight prohibition SFARs.

DATES: This final rule is effective on September 20, 2022.

FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone<PHONE_NUMBER>; email:
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action extends the expiration date of Special Federal Aviation
Regulation (SFAR) No. 117, title 14 Code of Federal Regulations (CFR),
91.1617, from October 31, 2022, until October 31, 2024. SFAR No. 117,
14 CFR 91.1617, prohibits certain flight operations in the Tehran FIR
(OIIX) by all: U.S. air carriers; U.S. commercial operators; persons
exercising the privileges of an airman certificate issued by the FAA,
except when such persons are operating U.S.-registered aircraft for a
foreign air carrier; and operators of U.S.-registered civil aircraft,
except when the operator of such aircraft is a foreign air carrier.
Consistent with other recently published flight prohibition SFARs, this
action also republishes, with minor administrative revisions, the
approval process and exemption information for this SFAR for
consistency with other recently-published flight prohibition SFARs.

II. Authority and Good Cause

A. Authority

    The FAA is responsible for the safety of flight in the U.S. and for
the safety of U.S. civil operators, U.S.-registered civil aircraft, and
U.S.-certificated airmen throughout the world. Sections 106(f) and (g)
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA
Administrator's authority to issue rules on aviation safety. Subtitle
VII of title 49, Aviation Programs, describes in more detail the scope
of the agency's authority. Section 40101(d)(1) provides that the
Administrator shall consider in the public interest, among other
matters,

assigning, maintaining, and enhancing safety and security as the
highest priorities in air commerce. Section 40105(b)(1)(A) requires the
Administrator to exercise this authority consistently with the
obligations of the U.S. Government under international agreements.
    The FAA is promulgating this rule under the authority described in
49 U.S.C. 44701, General requirements. Under that section, the FAA is
charged broadly with promoting safe flight of civil aircraft in air
commerce by prescribing, among other things, regulations and minimum
standards for practices, methods, and procedures that the Administrator
finds necessary for safety in air commerce and national security. This
regulation is within the scope of the FAA's authority because it
continues to prohibit the persons described in paragraph (a) of SFAR
No. 117, Sec.  91.1617, from conducting flight operations in the Tehran
FIR (OIIX) due to the continuing hazards to the safety of U.S. civil
flight operations, as described in the preamble to this final rule.

B. Good Cause for Immediate Adoption

    Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to
dispense with notice and comment procedures for rules when the agency
for ``good cause'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' Also, section 553(d)
permits agencies, upon a finding of good cause, to issue rules with an
effective date less than 30 days from the date of publication. In this
instance, the FAA finds good cause to forgo notice and comment because
notice and comment would be impracticable and contrary to the public
interest. In addition, it is contrary to the public interest to allow
this SFAR to expire.
    The risk environment for U.S. civil aviation in airspace managed by
other countries with respect to safety of flight is fluid in
circumstances involving weapons capable of targeting or otherwise
negatively affecting U.S. civil aviation, as well as other hazards to
U.S. civil aviation associated with fighting, extremist or militant
activity, or heightened tensions. This fluidity and the need for the
FAA to rely upon classified information in assessing these risks makes
providing notice and opportunity to comment impracticable and contrary
to the public interest. The potential for rapid changes in the risks to
U.S. civil aviation significantly limits how far in advance of a new or
amended flight prohibition the FAA can usefully assess the risk
environment. Furthermore, to the extent that these rules and any
amendments are based upon classified information, the FAA cannot share
such information with the general public. As a result, engaging in
notice and comment would be impracticable.
    Additionally, it is crucial that the FAA's flight prohibitions, and
any amendments thereto, reflect the agency's current understanding of
the risk environment for U.S. civil aviation. This allows the FAA to
protect the safety of U.S. operators' aircraft and the lives of their
passengers and crews without over-restricting U.S. operators' routing
options. The delay that would be occasioned by providing an opportunity
to comment on this action would mean that the resulting final action
would not be based on the latest information about aviation risk in a
fluid environment.
    As described in the preamble to this rule, extending the flight
prohibition for U.S. civil aviation operations in the Tehran FIR (OIIX)
is necessary due to continuing safety-of-flight hazards associated with
the ongoing risk of misidentification of civil aircraft in an
environment of continued heightened tensions in the region, as well as
the risks to civil aircraft from unannounced military activities,
including ballistic missile launches and unmanned aircraft systems
(UAS) operations, in the region.
    Accordingly, the FAA finds good cause exists to forgo notice and
comment and any delay in the effective date for this rule.

III. Background and Discussion of the Final Rule

    The FAA originally issued SFAR No. 117, 14 CFR 91.1617, after Iran
conducted retaliatory ballistic missile strikes targeting U.S. air
bases in Iraq on January 7, 2020, following the death of Iranian
Revolutionary Guard Corps (IRGC) Quds Force Commander Qassem Soleimani
in a U.S. airstrike.\1\ Due to the heightened military activities in
the region at that time, including the heightened alert status of
Iranian military forces, and elevated political tensions in the Middle
East, which included the potential for further escalation, the FAA
determined an unacceptable risk to U.S. civil aviation existed in the
Baghdad FIR (ORBB), the Tehran FIR (OIIX), and the overwater areas of
the Persian Gulf and the Gulf of Oman due to the potential for
miscalculation or misidentification.
---------------------------------------------------------------------------

    \1\ See Prohibition Against Certain Flights in the Tehran Flight
Information Region (FIR) (OIIX) final rule, 85 FR 68435, Oct. 29,
2020.
---------------------------------------------------------------------------

    To address these immediate safety-of-flight hazards, on January 7,
2020, UTC, the FAA issued Notices-to-Airmen (NOTAMs) KICZ A0001/20,
A0002/20, and A0003/20, which prohibited U.S. civil flight operations
in the Baghdad FIR (ORBB), the Tehran FIR (OIIX), and the overwater
airspace above the Persian Gulf and the Gulf of Oman, respectively.\2\
Unfortunately, within hours after the FAA issued NOTAM KICZ A0002/20,
Iranian air defense forces accidentally shot down Ukraine International
Airlines Flight 752 (PS 752), shortly after its departure from Tehran
Imam Khomeini International Airport (OIIE). These forces apparently
misidentified the aircraft, which was conducting a regularly scheduled
passenger flight, as a missile threat. There were no survivors out of
the 176 passengers and crew.
---------------------------------------------------------------------------

    \2\ SFAR No. 117, 14 CFR 91.1617, and this rulemaking action are
limited in scope to the Tehran FIR (OIIX).
---------------------------------------------------------------------------

    Following this tragedy, there was uncertainty about how long the
hazards to civil aviation in the Tehran FIR (OIIX) would persist;
whether Iran would be transparent in its investigation into the downing
of PS 752; and whether Iran would implement changes in its air defense
command and control procedures, airspace de-confliction processes, and
rules of engagement for air defense engagements to reduce the risk of
further tragedies sufficiently to allow for safe U.S. civil aviation
operations in the Tehran FIR (OIIX).
    The FAA continues to assess the situation in the Tehran FIR (OIIX)
as presenting an unacceptable risk to the safety of U.S. civil
aviation. Heightened regional tensions remain. The FAA has received no
information indicating that Iran has implemented changes to its air
defense command and control procedures, airspace de-confliction
procedures, and rules of engagement that sufficiently diminish the risk
of another accidental shoot down of a civil aircraft by Iranian air
defense units in the Tehran FIR (OIIX) during the current or future
periods of heightened tensions for U.S. civil aviation operations to
resume safely.
    Additionally, when the FAA initially issued SFAR No. 117, Sec.
91.1617, the agency was also concerned about the wide array of military
activities occurring in, emanating from, or transiting the Tehran FIR
(OIIX), in an environment of heightened regional tensions. There was
the potential for Iranian ballistic missile fire from western Iran
targeting Islamic State of Iraq and ash-Sham (ISIS) and Kurdish
opposition groups located in the region, as had occurred in September
2018 and June 2017. Iran had also conducted

multiple ballistic missile test launches in the Tehran FIR (OIIX). To
the FAA's knowledge, Iran had not issued a NOTAM or other aeronautical
information to warn civil aircraft operators of the potential hazard to
their operations prior to these missile launches. Additionally, the FAA
assessed a potential inadvertent risk to U.S. civil aviation operations
in the Tehran FIR (OIIX) from Iranian-fielded Global Positioning System
(GPS) and communication jammers continued to exist. These circumstances
further contributed to the unacceptable risk environment for U.S. civil
aviation in the Tehran FIR (OIIX).
    The FAA has continued concerns regarding the potential for
unannounced Iranian ballistic missile fire, as well as UAS activity,
originating from western Iran and targeting sites in the region. Such
activity presents safety-of-flight hazards to civil aviation and
airspace de-confliction challenges. On March 12, 2022, up to twelve
Fateh-110 surface-to-surface ballistic missiles launched from western
Iran and impacted near the construction site of the new U.S. consulate
in Erbil, Iraq, and Erbil International Airport (ORER). Iranian
officials claimed responsibility for the ballistic missile attack,
allegedly carried out in response to the loss of two IRGC officials in
an alleged third-party airstrike in Syria. Nearly 48 hours after the
March 12, 2022 missile strikes on targets in Erbil, Iran issued a
NOTAM, OIIX A0961/22, which stated ``All military activity will perform
with close cooperation by civil authorities and according to risk
analysis results, the launch site and its related activities are clear
and with the safe distance from all ATS route, CTR, TMA and CTA.'' \3\
The timing of this NOTAM, following closely after the missile launches,
raises concerns that its issuance may have been an attempt to allay the
safety concerns of the international civil aviation community and may
not accurately reflect Iran's processes and procedures for safeguarding
civil aviation operations during military activities, such as missile
launches.
---------------------------------------------------------------------------

    \3\ The following acronyms used in the Iranian NOTAM are common
International Civil Aviation Organization (ICAO) acronyms that refer
to aspects of airspace structure:
    ``ATS'' means ``air traffic service,''
    ``CTR'' means ``control traffic region,''
    ``TMA'' means ``traffic management area,'' and
    ``CTA'' means ``control area.''
---------------------------------------------------------------------------

    Therefore, as a result of the significant, continuing risks to the
safety of U.S. civil aviation operations in the Tehran FIR (OIIX), the
FAA extends the expiration date of SFAR No. 117, Sec.  91.1617, from
October 31, 2022, until October 31, 2024.
    Further amendments to SFAR No. 117, Sec.  91.1617, might be
appropriate if the risk to U.S. civil aviation safety and security
changes. In this regard, the FAA will continue to monitor the situation
and evaluate the extent to which persons described in paragraph (a) of
SFAR No. 117, Sec.  91.1617, might be able to operate safely in the
Tehran FIR (OIIX).
    The FAA also republishes the details concerning the approval and
exemption processes in Sections IV and V of this preamble, consistent
with other recently published flight prohibition SFARs, to enable
interested persons to refer to this final rule for comprehensive
information about requesting relief from the FAA from the provisions of
SFAR No. 117, Sec.  91.1617.

IV. Approval Process Based on a Request From a Department, Agency, or
Instrumentality of the United States Government

A. Approval Process Based on an Authorization Request From a
Department, Agency, or Instrumentality of the United States Government

    In some instances, U.S. Government departments, agencies, or
instrumentalities may need to engage U.S. civil aviation to support
their activities in the Tehran FIR (OIIX). If a department, agency, or
instrumentality of the U.S. Government determines that it has a
critical need to engage any person described in paragraph (a) of SFAR
No. 117, Sec.  91.1617, including a U.S. air carrier or commercial
operator, to transport civilian or military passengers or cargo or
conduct other operations in the Tehran FIR (OIIX), that department,
agency, or instrumentality may request the FAA to approve persons
described in paragraph (a) of SFAR No. 117, Sec.  91.1617, to conduct
such operations.
    The requesting U.S. Government department, agency, or
instrumentality must submit the request for approval to the FAA's
Associate Administrator for Aviation Safety in a letter signed by an
appropriate senior official of the requesting department, agency, or
instrumentality.\4\ The FAA will not accept or consider requests for
approval from anyone other than the requesting U.S. Government
department, agency, or instrumentality. In addition, the senior
official signing the letter requesting FAA approval must be
sufficiently positioned within the requesting department, agency, or
instrumentality to demonstrate that the organization's senior
leadership supports the request for approval and is committed to taking
all necessary steps to minimize aviation safety and security risks to
the proposed flights. The senior official must also be in a position
to: (1) attest to the accuracy of all representations made to the FAA
in the request for approval, and (2) ensure that any support from the
requesting U.S. Government department, agency, or instrumentality
described in the request for approval is in fact brought to bear and is
maintained over time. Unless justified by exigent circumstances,
requesting U.S. Government departments, agencies, or instrumentalities
must submit requests for approval to the FAA no less than 30 calendar
days before the date on which the requesting department, agency, or
instrumentality wishes the operator(s) to commence the proposed
operation(s).
---------------------------------------------------------------------------

    \4\ This approval procedure applies to U.S. Government
departments, agencies, or instrumentalities; it does not apply to
the public. The FAA describes this procedure in the interest of
providing transparency with respect to the FAA's process for
interacting with U.S. Government departments, agencies, or
instrumentalities that seek to engage U.S. civil aviation to operate
in the area in which this SFAR would prohibit their operations in
the absence of specific FAA approval.
---------------------------------------------------------------------------

    The requestor must send the request to the Associate Administrator
for Aviation Safety, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable,
and the requesting entity may request that the FAA notify it
electronically as to whether the FAA grants the request for approval.
If a requestor wishes to make an electronic submission to the FAA, the
requestor should contact the Air Transportation Division, Flight
Standards Service, at<PHONE_NUMBER>, to obtain the appropriate email
address. A single letter may request approval from the FAA for multiple
persons described in SFAR No. 117, Sec.  91.1617, or for multiple
flight operations. To the extent known, the letter must identify the
person(s) the requester expects the SFAR to cover on whose behalf the
U.S. Government department, agency, or instrumentality seeks FAA
approval, and it must describe--
     The proposed operation(s), including the nature of the
mission being supported;
     The service the person(s) covered by the SFAR will
provide;
     To the extent known, the specific locations in the Tehran
FIR (OIIX) where the proposed operation(s) will occur, including, but
not limited to, the flight path and altitude of the aircraft while it
is operating in the Tehran FIR (OIIX) and the airports, airfields, or
landing zones at which the aircraft will take off and land; and

     The method by which the requesting department, agency, or
instrumentality will provide, or how the operator will otherwise
obtain, current threat information and an explanation of how the
operator will integrate this information into all phases of the
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
    The request for approval must also include a list of operators with
whom the U.S. Government department, agency, or instrumentality
requesting FAA approval has a current contract(s), grant(s), or
cooperative agreement(s) (or its prime contractor has a subcontract(s))
for specific flight operations in the Tehran FIR (OIIX). The requestor
may identify additional operators to the FAA at any time after the FAA
issues its approval. Neither the operators listed in the original
request, nor any operators the requestor subsequently seeks to add to
the approval, may commence operations under the approval until the FAA
issues them an Operations Specification (OpSpec) or Letter of
Authorization (LOA), as appropriate, for operations in the Tehran FIR
(OIIX). The approval conditions discussed below apply to all operators.
Requestors should send updated lists to the email address they obtain
from the Air Transportation Division by calling<PHONE_NUMBER>.
    If an approval request includes classified information, requestors
may contact Aviation Safety Inspector Bill Petrak for instructions on
submitting it to the FAA. His contact information appears in the FOR
FURTHER INFORMATION CONTACT section of this final rule.
    FAA approval of an operation under SFAR No. 117, Sec.  91.1617,
does not relieve persons subject to this SFAR of the responsibility to
comply with all other applicable FAA rules and regulations. Operators
of civil aircraft must comply with the conditions of their
certificates, OpSpecs, and LOAs, as applicable. Operators must also
comply with all rules and regulations of other U.S. Government
departments, agencies, or instrumentalities that may apply to the
proposed operation(s), including, but not limited to, regulations
issued by the Transportation Security Administration.

B. Approval Conditions

    If the FAA approves the request, the FAA's Aviation Safety
organization will send an approval letter to the requesting U.S.
Government department, agency, or instrumentality informing it that the
FAA's approval is subject to all of the following conditions:
    (1) The approval will stipulate those procedures and conditions
that limit, to the greatest degree possible, the risk to the operator,
while still allowing the operator to achieve its operational
objectives.
    (2) Before any approval takes effect, the operator must submit to
the FAA:
    (a) A written release of the U.S. Government from all damages,
claims, and liabilities, including without limitation legal fees and
expenses, relating to any event arising out of or related to the
approved operations in the Tehran FIR (OIIX); and
    (b) The operator's written agreement to indemnify the U.S.
Government with respect to any and all third-party damages, claims, and
liabilities, including without limitation legal fees and expenses,
relating to any event arising out of or related to the approved
operations in the Tehran FIR (OIIX).
    (3) Other conditions the FAA may specify, including those the FAA
might impose in OpSpecs or LOAs, as applicable.
    The release and agreement to indemnify do not preclude an operator
from raising a claim under an applicable non-premium war risk insurance
policy the FAA issues under chapter 443 of title 49, U.S. Code.
    If the FAA approves the proposed operation(s), the FAA will issue
an OpSpec or LOA, as applicable, to the operator(s) identified in the
original request and any operators the requestor subsequently adds to
the approval, authorizing them to conduct the approved operation(s). In
addition, as stated in paragraph (3) of this section IV.B, the FAA
notes that it may include additional conditions beyond those contained
in the approval letter in any OpSpec or LOA associated with a
particular operator operating under this approval, as necessary in the
interests of aviation safety. U.S. Government departments, agencies,
and instrumentalities requesting FAA approval on behalf of entities
with which they have a contract or subcontract, grant, or cooperative
agreement should request a copy of the relevant OpSpec or LOA directly
from the entity with which they have any of the foregoing types of
arrangements, if desired.

V. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues
through the approval process set forth previously may only occur in
accordance with an exemption from SFAR No. 117, Sec.  91.1617. A
petition for exemption must comply with 14 CFR part 11. The FAA will
consider whether exceptional circumstances exist beyond those described
in the approval process in the previous section. To determine whether a
petition for exemption from the prohibition this SFAR establishes
fulfills the standard of 14 CFR 11.81, the FAA consistently finds
necessary the following information:
     The proposed operation(s), including the nature of the
operation;
     The service the person(s) covered by the SFAR will
provide;
     The specific locations in the Tehran FIR (OIIX) where the
proposed operation(s) will occur, including, but not limited to, the
flight path and altitude of the aircraft while it is operating in the
Tehran FIR (OIIX) and the airports, airfields, or landing zones at
which the aircraft will take off and land;
     The method by which the operator will obtain current
threat information and an explanation of how the operator will
integrate this information into all phases of its proposed operations
(i.e., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
     The plans and procedures the operator will use to minimize
the risks identified in this preamble to the proposed operations, to
support the relief sought and demonstrate that granting such relief
would not adversely affect safety or would provide a level of safety at
least equal to that provided by this SFAR. The FAA has found
comprehensive, organized plans and procedures of this nature to be
helpful in facilitating the agency's safety evaluation of petitions for
exemption from flight prohibition SFARs.
    The FAA includes, as a condition of each such exemption it issues,
a release and agreement to indemnify, as described previously.
    The FAA recognizes that, with the support of the U.S. Government,
the governments of other countries could plan operations that may be
affected by SFAR No. 117, Sec.  91.1617. While the FAA will not permit
these operations through the approval process, the FAA will consider
exemption requests for such operations on an expedited basis and in
accordance with the order of preference set forth in paragraph (c) of
SFAR No. 117, Sec.  91.1617.
    If a petition for exemption includes information that is sensitive
for security reasons or proprietary information, requestors may contact
Aviation Safety Inspector Bill Petrak for instructions on submitting it
to the FAA. His contact information is listed in the FOR FURTHER
INFORMATION CONTACT section of this final rule.

VI. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Orders 12866 and 13563 direct that each Federal agency shall propose or
adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs. Second, the Regulatory
Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
et seq., requires agencies to analyze the economic impact of regulatory
changes on small entities. Third, the Trade Agreements Act of 1979
(Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, the Trade Agreements Act requires agencies to consider
international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this final
rule has benefits that justify its costs. This rule is a significant
regulatory action, as defined in section 3(f) of Executive Order 12866,
as it raises novel policy issues contemplated under that Executive
order. As 5 U.S.C. 553 does not require notice and comment for this
final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility
analyses regarding impacts on small entities. This rule will not create
unnecessary obstacles to the foreign commerce of the United States.
This rule will not impose an unfunded mandate on State, local, or
tribal governments, or on the private sector, by exceeding the
threshold identified previously.

A. Regulatory Evaluation

    This rule prohibits U.S. civil flights in the Tehran FIR (OIIX) due
to the significant hazards to U.S. civil aviation described in this
preamble. The alternative flight routes result in some additional fuel
and operations costs to the operators, as well as some costs attributed
to passenger time. Accordingly, the incremental costs of the extension
of this SFAR are minimal. By continuing to prohibit unsafe flights, the
benefits of this rule will exceed the minimal flight deviation costs.
Therefore, the FAA finds that the incremental costs of extending SFAR
No. 117, 14 CFR 91.1617, will be minimal and are exceeded by the
benefits of avoided risk of deaths, injuries, and property damage that
could occur if a U.S. operator's aircraft were shot down (or otherwise
damaged) while operating in the Tehran FIR (OIIX).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an
agency to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever 5 U.S.C. 553 or any other law
requires an agency to publish a general notice of proposed rulemaking
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to
prepare a final regulatory flexibility analysis when an agency issues a
final rule under 5 U.S.C. 553 after that section or any other law
requires publication of a general notice of proposed rulemaking. The
FAA concludes good cause exists to forgo notice and comment and to not
delay the effective date for this rule. As 5 U.S.C. 553 does not
require notice and comment in this situation, 5 U.S.C. 603 and 604
similarly do not require regulatory flexibility analyses.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to this Act, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and
determined that its purpose is to protect the safety of U.S. civil
aviation from risks to their operations in the Tehran FIR (OIIX), a
location outside the U.S. Therefore, the rule complies with the Trade
Agreements Act of 1979.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $165 million in lieu of $100
million.
    This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
the FAA to consider the impact of paperwork and other information
collection burdens it imposes on the public. The FAA has determined no
new requirement for information collection is associated with this
final rule.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, the FAA's policy is to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined no ICAO Standards and Recommended Practices correspond to
this regulation. The FAA finds this action is fully consistent with the
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises
its duties consistently with the obligations of the United States under
international agreements.
    While the FAA's flight prohibition does not apply to foreign air
carriers, DOT codeshare authorizations prohibit foreign air carriers
from carrying a U.S. codeshare partner's code on a flight segment that
operates in airspace for which the FAA has issued a flight prohibition
for U.S. civil aviation. In addition, foreign air carriers and other
foreign operators may choose to avoid, or be advised or directed by
their civil aviation authorities to avoid, airspace for which the FAA
has issued a flight prohibition for U.S. civil aviation.

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114,
Environmental Effects Abroad of Major Federal Actions, and DOT Order
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be
informed

of environmental considerations and take those considerations into
account when making decisions on major Federal actions that could have
environmental impacts anywhere beyond the borders of the United States.
The FAA has determined this action is exempt pursuant to Section 2-
5(a)(i) of Executive Order 12114 because it does not have the potential
for a significant effect on the environment outside the United States.
    In accordance with FAA Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a
memorandum for the record stating the reason(s) for this determination
and has placed it in the docket for this rulemaking.

VII. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132. The agency has determined this action will not
have a substantial direct effect on the States, or the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, this rule will not have federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

    The FAA analyzed this rule under Executive Order 13211. The agency
has determined it is not a ``significant energy action'' under the
executive order and will not be likely to have a significant adverse
effect on the supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory
Cooperation

    Executive Order 13609 promotes international regulatory cooperation
to meet shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609 and has determined that this action will have no
effect on international regulatory cooperation.

VIII. Additional Information

A. Electronic Access

    Except for classified material, all documents the FAA considered in
developing this rule, including economic analyses and technical
reports, may be accessed from the internet through the docket for this
rulemaking.
    Those documents may be viewed online at https://www.regulations.gov
using the docket number listed above. A copy of this rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website
at https://www.govinfo.gov. A copy may also be found at the FAA's
Regulations and Policies website at https://www.faa.gov/regulations_policies.
    Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling<PHONE_NUMBER>.
Interested persons must identify the docket or amendment number of this
rulemaking.

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601)
requires FAA to comply with small entity requests for information or
advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document may
contact its local FAA official, or the persons listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Airports, Aviation safety,
Freight, Iran.

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations, as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 continues to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g), 40101, 40103, 40105,
40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712,
44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507,
47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49
U.S.C. 44703 note); articles 12 and 29 of the Convention on
International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

0
2. Amend Sec.  91.1617 by revising paragraph (e) to read as follows:

Sec.  91.1617  Special Federal Aviation Regulation No. 117--Prohibition
Against Certain Flights in the Tehran Flight Information Region (FIR)
(OIIX).

* * * * *
    (e) Expiration. This SFAR will remain in effect until October 31,
2024. The FAA may amend, rescind, or extend this SFAR, as necessary.

    Issued in Washington, DC, under the authority of 49 U.S.C.
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on or
about September 19, 2022.
Billy Nolen,
Acting Administrator.
[FR Doc. 2022-20316 Filed 9-19-22; 8:45 am]
BILLING CODE 4910-13-P


 Summary of Telephone Interviews with Industrial Hygiene Firms Regarding Personal Sampling at Hydraulic Fracturing Sites in the Oilfield                                   MEMORANDUM To: Robert Stone, Robert Blicksilver, Robert Burt, OSHA From: Eastern Research Group, Inc. Re: ERG 2014 Assessment of Sampling Costs Based on Interviews with IH Consultants (May 2014) Date:  May 28, 2014 ********************************************************************************* In the OSHA Preliminary Economic Assessment, Appendix A, (Appendix A-OSHA-201-00034-17201), ERG (2011) estimated that an IH will spend one day, at a cost of $500, to obtain the following number of personal breathing zone (PBZ) samples: 2 for establishments with fewer than 20 employees; 6 for establishments with 20-499 employees; and 8 for establishments with 500 or more employees. ERG anticipated that sampling would be performed by an IH technician.

Based on the 2000 EMSL Laboratory Testing Catalog, ERG (2007b) estimated that analysis of each sample will cost $133.38 (adjusted to 2009 dollars) in lab fees and shipping costs. When combined with the IH fee, the cost per PBZ sample is projected to range from $195.88 to $383.38 (depending on establishment size).

The American Foundry Society criticized the estimates, suggesting that the industrial hygienist costs, at least in their industry, would be $1,700 per day, including $700 for pump rental costs. The pump rental cost estimate was based on use of higher volume pumps.

To obtain better estimates of costs associated with exposure monitoring, ERG conducted interviews with a small sample (n=7) of industrial hygiene consultants in May 2014. An eighth interviewee provided general information regarding costs of sampling, without providing specific pricing.

Based on these interviews, ERG determined that, in addition to labor costs for sample collection, labor costs also apply to preparation of sampling reports. Reports may be needed to identify potential sources of exposure and to meet OSHA recordkeeping requirements. Also, sample collection costs vary with the skill level of the individual performing the sampling. Independent consultants often perform their own sampling.  Larger consulting firms often use a technician, for example to perform routine sampling at well characterized sites; however, for new or complex operations,  a certified industrial hygienist (CIH) might be needed. One of the consultants stated that sampling costs are typically highest during the "discovery phase," such as characterization of a new site or facility or compliance with a new rulemaking, and that sampling costs are generally lower for routine periodic monitoring. Labor charges for a full day of sampling, with preparation of an accompanying report, were described as being in the range of $750  -  $3600, with the majority of respondents describing labor charges in the $1800- 2500 range per day of sampling.

Labor Costs Reported per Day of Sampling, Including Report Writing Costs, by Industrial Hygiene Consulting Firms Interviewee Minimum Maximum A $750 $1000 B $1800 $3600 C $1875 $1875 D $1885 $2500 E $1980 $2500 F $2000 $3000 G $2400 $2400 Average $1812.86  $2410.71  Overall Average $2111.78

ERG confirmed that it is feasible, common practice for a single field technician to collect up to 8 full-shift samples as described in the PEA.  Where 8 samples are collected, the IH fee, that is, costs per sample for field sample collection and report preparation, would be $2111.78/8 = $264. For smaller sites where fewer samples are collected, the overall time and costs associated with sampling and report preparation would generally be lower, but per sample costs might be higher.  Comments from the Independent Petroleum Association of America (IPAA) expressed concern regarding elevated costs for sampling at remote hydraulic fracturing sites. Significant hydraulic fracturing operations are within a reasonable distance (e.g., two hour drive) to a metropolitan area, such as the shale deposits in Eastern Ohio near Pittsburgh (Utica shale formation), and the Barnett shale near Fort Worth, Texas.  Regarding travel costs associated with sampling, consultants generally reported that hourly labor rates for field sampling personnel would be applied during travel to the site. Some firms charge a lower labor rate (e.g., 25-30% lower) during travel to a field site than during sampling and report writing. For facilities within driving distance, consultants generally reported charging mileage for travel to sites more than 50 miles from the base of operations, and in some cases applied a trip fee/gasoline charge of at least $50 for all sampling visits. Also, travel costs to remote facilities, including airfare, lodging, and meals would be passed along to the facility.  Several consultants stated that for multi-day sampling projects, the number of hours needed for report writing is proportionately less than for a one day project.   The industry criticism had suggested that high volume sampling pumps would be needed. ERG industrial hygienists judge that no such special equipment would be needed to meet OSHA requirements.  Regarding pump rental costs, most consultants reported having enough of their own equipment to support the majority of projects. Also, many consultants reported using pumps and other sampling equipment provided by the analytical lab that analyzes their samples, which were either free or available for the cost of shipping. In some cases, costs of equipment rental would be passed along, for example if the site requested use of unusual sampling equipment or for a large sampling campaign (for example involving more than fifteen eight-hour samples per day). This pump loan program would also be available to employers that use their own staff to perform sampling.