[Federal Register: September 18, 2008 (Volume 73, Number 182)]
[Notices]
[Page 54179-54184]
[DOCID:fr18se08-87]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28379; 812-13483]

Rafferty Asset Management, LLC, et al.; Notice of Application

September 12, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (the ``Act'') for an exemption from
sections 2(a)(32), 5(a)(1), 22(d), 22(e), and 24(d) of the Act and rule
22c-1 under the Act, and under sections 6(c) and 17(b) of the Act for
an exemption from sections 17(a)(1) and 17(a)(2) of the Act.

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    Summary of Application: Applicants request an order that would
permit (a) an open-end management investment company and its series to
issue shares (``ETS'') that can be redeemed only in large aggregations
(``Creation Units''); (b) secondary market transactions in ETS to occur
at negotiated prices; (c) dealers to sell ETS to purchasers in the
secondary market unaccompanied by a prospectus when prospectus delivery
is not required by the Securities Act of 1933 (``Securities Act''); (d)
certain series to pay redemption proceeds, under certain circumstances,
more than seven days after the tender of ETS for redemption and; (e)
certain affiliated persons of the series to deposit securities into,
and receive securities from, the series in connection with the purchase
and redemption of Creation Units.
    Applicants: Rafferty Asset Management, LLC (``Adviser'') and
Direxion Shares ETF Trust (``Trust'').
    Filing Dates: The application was filed on January 23, 2008 and
amended on May 8, 2008, August 21, 2008 and September 12, 2008.
    Hearing or Notification of Hearing: An order granting the
application will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on October 3, 2008, and should be accompanied by proof of
service on applicants, in the form of an affidavit, or for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090; Applicants, 33 Whitehall Street, 10th
Floor, New York, New York 10004.

FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Sr., Senior Counsel
at<PHONE_NUMBER>, or Julia Kim Gilmer, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained for a fee at the
Public Reference Branch, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington DC 20549-1520, telephone<PHONE_NUMBER>.

Applicants' Representations

    1. The Trust is an open-end management investment company
registered under the Act and organized as a Delaware statutory trust.
The Trust is authorized to offer an unlimited number of series (the
``Funds''). The Adviser is registered as an investment adviser under
the Investment Advisers Act of 1940 (``Advisers Act''). The Trust will
initially offer thirty-two series (``Initial Funds'') with different
types of investment objectives as further described below.\1\
Applicants may offer additional Funds in the future (``Future Funds''
and included in the term Funds).\2\ Each Fund will be advised by the
Adviser. The Adviser may enter into subadvisory agreements with
additional investment advisers to act as subadvisers to the Trust and
any of the Funds. Any subadviser to the Trust or a Fund will be
registered under the Advisers Act. A broker-dealer registered under the
Securities Exchange Act of 1934 (``Exchange Act'') will act as the
distributor and principal underwriter of each Fund's Creation Units of
ETS (``Distributor'').
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    \1\ The underlying indices for the Initial Funds are identified
in the application.
    \2\ All existing entities that intend to rely on the requested
order have been named as applicants. Any Future Fund that relies on
the requested order will comply with the terms and conditions of the
application.
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    2. The Funds will seek daily investment results, before fees and
expenses, that: (a) Correspond to the return of particular foreign
equity indices (``Underlying Foreign Indices''), domestic equity
indices (``Underlying Domestic Indices'') or fixed income securities
indices (``Underlying Fixed Income Indices'' together with the
Underlying Foreign Indices and the Underlying Domestic Indices, the
``Underlying Indices'') \3\ (such Funds are referred to as the
``Conventional Funds''); (b) provide up to 400% of the return of their
Underlying Indices (``Leveraged Funds''); or (c) provide up to 400% of
the inverse performance of their Underlying Indices (``Inverse
Funds'').\4\
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    \3\ An entity that creates, compiles, sponsors or maintains an
Underlying Index is not and will not be an affiliated person, as
defined in section 2(a)(3) of the Act, or an affiliated person of an
affiliated person of the Trust, a Fund, the Distributor, the
Adviser, or any subadviser or promoter of any Fund.
    \4\ Sixteen of the Initial Funds are Leveraged Funds and the
remainder are Inverse Funds.
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    3. Conventional Funds and Leveraged Funds based on Underlying
Domestic Indices will invest at least 95% and 80%, respectively, of
their total assets in the equity securities contained in the relevant
Underlying Domestic Index. Conventional Funds and Leveraged Funds based
on Underlying Fixed Income Indices will invest at least 80% of their
total assets in the securities that comprise the relevant Underlying
Fixed Income Index. Conventional Funds and Leveraged Funds based on
Underlying Foreign Indices will invest at least 80% of their total
assets in the equity securities contained in the relevant Underlying
Foreign Index and depositary receipts representing such securities.\5\
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    \5\ ``Depositary Receipts'' include American Depositary
Receipts, Global Depositary Receipts and European Depositary
Receipts.
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    4. Additionally, the Funds may invest in short-term debt
instruments that meet the definition of ``Eligible Security'' in rule
2a-7 under the Act (``Money Market Instruments''), and in futures
contracts, options, equity caps, collars and floors, swap agreements,
forward contracts, and reverse repurchase agreements (collectively,
``Financial Instruments'') in order to meet their investment
objectives. The Inverse Funds will only invest in Financial Instruments
and Money Market Instruments; they will not invest in the component
securities of their Underlying Indices.
    5. A Conventional Fund will utilize either a replication or
representative sampling strategy. A Conventional Fund using a
``replication'' strategy will invest in substantially all of the
Component Securities in its Underlying Index in approximately the same
proportions as in the Underlying Index. A Conventional Fund using a
representative sampling strategy will invest in some, but not all, of
the relevant Component Securities. The Adviser will seek to achieve the
investment objectives of the Leveraged Funds and the Inverse Funds by
using a mathematical model that takes into account a variety of
specified criteria, the most important of which are: (a) The net assets
in each Fund's portfolio at the end of each trading day; (b) the amount
of required exposure to the Underlying Index; and (c) the positions in
equity and fixed income securities, Financial Instruments and Money
Market Instruments at the beginning of each trading day. On each day
that a Fund is required to be open under section 22(e) of the Act
(``Business Day'') the full portfolio holdings of each Fund will be
disclosed on the website of the Trust and/or the Exchange on which ETS
are primarily listed (``Primary Listing Exchange''). The portfolio
holdings information disclosed each Business Day will form the basis
for that Fund's net asset value (``NAV'') calculation as of 4:00 pm
Eastern Time that day and will reflect portfolio trades made on the
immediately preceding Business Day. Intra-day values of each Underlying
Domestic Index and Underlying Foreign Index will be disseminated every
15 seconds throughout the trading day. The value of Underlying Fixed
Income Indices will be calculated and published once per day.
    6. Applicants expect that each Conventional Fund will have an
annual tracking error of less than 5% over the course of the year
(excluding the impact of expenses and interest, if any) to the
performance of its Underlying Index. For Leveraged Funds and Inverse
Funds, applicants expect a tracking error of less than 5% over the
course of a year (excluding the impact of expenses and interest, if
any) to the specified multiple or inverse multiple, respectively, of
the performance of the relevant Underlying Index.
    7. Each Fund will issue Creation Units of approximately 25,000 to
100,000 ETS. Applicants expect the initial offering price of a Creation
Unit to be a minimum of $1 million. All orders to purchase Creation
Units must be placed on a Business Day with the Distributor by or
through a party that has entered into a participant agreement with the
Distributor (an ``Authorized Participant''). An Authorized Participant
must be either (a) a broker-dealer or other participant in the
continuous net settlement system of the National Securities Clearing
Corporation, a clearing agency that is registered with the Commission,
or (b) a participant in the Depository Trust Company (``DTC'') system.
The Distributor also will be responsible for delivering the Prospectus
to those persons purchasing Creation Units and for maintaining records
of the orders

and acknowledgements of acceptance for orders.
    8. Creation Units of Conventional and Leveraged Funds generally
will be purchased and redeemed in exchange for an ``in-kind'' transfer
of securities (``In-Kind Payment'') and cash. Inverse Funds will
generally be purchased and redeemed entirely for cash because of the
limited transferability of Financial Instruments.\6\ An investor making
an In-Kind Payment will be required to transfer to the Trust a
``Deposit Basket'' consisting of: (a) A basket of securities consisting
of some or all of the securities in the relevant Underlying Index or
other securities selected by the Adviser to correspond to the
performance of the Underlying Index (the ``Deposit Securities''); and
(b) a ``Balancing Amount.'' The Balancing Amount will be equal to the
differential, if any, between the total aggregate market value of the
Deposit Securities, or in the case of redemptions, the Redemption
Securities (defined below), and the NAV per Creation Unit.\7\ An
investor purchasing or redeeming a Creation Unit from a Fund will be
charged a fee (``Transaction Fee'') to prevent the dilution of the
interests of the remaining shareholders resulting from the Fund
incurring costs in connection with the purchase and redemption of the
Creation Units.\8\ The maximum Transaction Fee and any variations or
waivers of the Transaction Fee will be disclosed in the prospectus for
ETS (``Prospectus'') and the method of determining the Transaction Fees
will be disclosed in the Prospectus and/or statement of additional
information (``SAI'').
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    \6\ The Trust may also accept and deliver all-cash payments for
the purchase and redemption of Creation Units of any Fund in certain
limited circumstances.
    \7\ On each Business Day, prior to the opening of trading on the
New York Stock Exchange, the Trust's index receipt agent will make
available the list of the names and the required number of shares of
each security included in the current Deposit Basket and the
Balancing Amount for each Fund. Such Deposit Basket will apply to
all purchases of Creation Units until a new Deposit Basket for a
Fund is announced. The Primary Listing Exchange will disseminate
every 15 seconds during regular trading hours, through the
facilities of the Consolidated Tape Association, an amount
representing on a per ETS basis the sum of the current value of the
Deposit Securities, and the estimated amount of cash and Money
Market Instruments held in the portfolio of a Conventional or
Leveraged Fund. For Leveraged Funds, the amount would also include,
on a per share basis, the marked-to-market gains or losses of the
Financial Instruments held by the Fund. For Inverse Funds, the
Primary Listing Exchange will disseminate an amount representing, on
a per share basis, the estimated amount of cash and Money Market
Instruments, and the marked-to-market gains or losses of the Fund's
Financial Instruments.
    \8\ A purchaser permitted to substitute cash for certain Deposit
Securities may be assessed a higher Transaction Fee to cover the
cost of purchasing such securities, including operational processing
and brokerage costs, and part or all of the spread between the
expected bid and offer side of the market relating to such
securities.
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    9. Persons purchasing Creation Units from a Fund may hold the ETS
or sell some or all of them in the secondary market. ETS of the Funds
will be listed on an Exchange and trade in the secondary market in the
same manner as other exchange-traded funds. It is expected that one or
more Exchange member firms will act as a specialist (``Exchange
Specialist'') or market maker (``Market Maker'') and maintain a market
on the Primary Listing Exchange for ETS. The price of ETS traded on an
Exchange will be based on a current bid/offer market. The initial
trading price for ETS of each Fund will fall in the range of $50 to
$250. Transactions involving the sale of ETS in the secondary market
will be subject to customary brokerage commissions and charges.
    10. Applicants expect that purchasers of Creation Units will
include institutional and retail investors, arbitrageurs, traders,
financial advisors, portfolio managers and other market
participants.\9\ An Exchange Specialist or Market Maker, in providing
for a fair and orderly secondary market for ETS, also may purchase or
redeem Creation Units for use in its market-making activities.
Applicants expect that the market price of ETS will be disciplined by
arbitrage opportunities created by the ability to purchase or redeem
Creation Units at their NAV, which should ensure that the market price
of ETS at or close to 4 p.m. stays close to the NAV on that Business
Day.
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    \9\ ETS will be registered in book-entry form only. DTC or its
nominee will be the record or registered owner of all outstanding
ETS. DTC or its participants will maintain records reflecting the
beneficial owners of ETS.
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    11. ETS will not be individually redeemable. ETS will only be
redeemable in Creation Units through the Distributor, which will act as
the Trust's agent for redemption. To redeem, an investor must
accumulate enough ETS to constitute a Creation Unit. An investor
redeeming a Creation Unit of a Conventional or Leveraged Fund generally
will receive an In-Kind Payment of securities published by the Trust's
index receipt agent (the ``Redemption Securities''), the Balancing
Amount in effect on the date a request for redemption is made, minus
any Transaction Fee.
    12. Applicants state that in accepting Deposit Securities and
satisfying redemptions with Redemption Securities,\10\ the relevant
Funds will comply with the federal securities laws, including that the
Deposit Securities and Fund Securities are sold in transactions that
would be exempt from registration under the Securities Act.\11\ As a
general matter, the Deposit Securities and Redemption Securities will
correspond pro rata to the securities held by each Conventional Fund
and Leveraged Fund, but Redemption Securities received on redemption
may not always be identical to Deposit Securities deposited in
connection with the purchase of Creation units for the same day.
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    \10\ Applicants state that a cash-in-lieu amount will replace
any ``to-be-announced'' (``TBA'') transaction that is listed as a
Deposit Security or Redemption Security of any Fund. A TBA
transaction is a method of trading mortgage-backed securities where
the buyer and seller agree upon general trade parameters such as
agency, settlement date, par amount and price. The actual pools
delivered generally are determined two days prior to the settlement
date. The amount of substituted cash in the case of TBA transactions
will be equivalent to the value of the TBA transaction listed as a
Deposit Security or Redemption Security.
    \11\ In accepting Deposit Securities and satisfying redemptions
with Redemption Securities that are restricted securities eligible
for resale pursuant to rule 144A under the Securities Act, the
relevant Funds will comply with the conditions of rule 144A,
including in satisfying redemptions with such rule 144A eligible
restricted Redemption Securities. The Prospectus will also state
that an Authorized Participant that is not a ``Qualified
Institutional Buyer'' as defined in rule 144A under the Securities
Act will not be able to receive, as part of a redemption, restricted
securities eligible for resale under rule 144A.
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    13. Applicants state that neither the Trust nor any Fund will be
advertised, marketed or otherwise held out as a ``mutual fund.'' The
term ``mutual fund'' will not be used in the Prospectus except to
compare and contrast the Trust or a Fund with conventional mutual
funds. In all marketing materials where the features or methods of
obtaining, buying, or selling Creation Units are described or where
there is reference to redeemability, applicants will include a
prominent statement to the effect that individual ETS are not
redeemable except in Creation Units. The same approach will be followed
in connection with reports and other communications to shareholders, as
well as any other investor education materials issued or circulated in
connection with ETS. The Trust will provide copies of its annual and
semi-annual shareholder reports to DTC participants for distribution to
beneficial holders of ETS.

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an
exemption from sections 2(a)(32), 5(a)(1), 22(d), 22(e), and 24(d) of
the Act and rule 22c-

1 under the Act, and under sections 6(c) and 17(b) of the Act for an
exemption from sections 17(a)(1) and 17(a)(2) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt
any person, security or transaction, or any class of persons,
securities or transactions, from any provision of the Act, if and to
the extent that such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.

Sections 5(a)(1) and 2(a)(32) of the Act

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a
management investment company that is offering for sale or has
outstanding any redeemable security of which it is the issuer. Section
2(a)(32) of the Act defines a redeemable security as any security,
other than short-term paper, under the terms of which the owner, upon
its presentation to the issuer, is entitled to receive approximately
his proportionate share of the issuer's current net assets, or the cash
equivalent. Because ETS will not be individually redeemable, applicants
request an order that would permit the Trust to issue ETS that are
redeemable in Creation Units only. Applicants state that investors may
purchase ETS of a Fund in Creation Units and redeem Creation Units from
the Trust. Applicants further state that because the market price of
ETS will be disciplined by arbitrage opportunities, investors should be
able to sell ETS in the secondary market at or close to 4:00 p.m. on a
Business Day at prices that do not vary substantially from the NAV on
that Business Day.

Section 22(d) of the Act and Rule 22c-1 Under the Act

    4. Section 22(d) of the Act, among other things, prohibits a dealer
from selling a redeemable security, which is currently being offered to
the public by or through a principal underwriter, except at a current
public offering price described in the prospectus. Rule 22c-1 under the
Act generally requires that a dealer selling, redeeming or repurchasing
a redeemable security do so only at a price based on its NAV.
Applicants state that secondary market trading in ETS will take place
at negotiated prices, not at a current offering price described in a
Fund's Prospectus as required by section 22(d) of the Act, and not at a
price based on NAV as required by rule 22c-1 under the Act. Applicants
request an exemption under section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by
section 22(d) of the Act and rule 22c-1 under the Act with respect to
pricing are equally satisfied by the proposed method of pricing ETS.
Applicants maintain that while there is little legislative history
regarding section 22(d), its provisions, as well as those of rule 22c-
1, appear to have been intended to (a) prevent dilution caused by
certain riskless-trading schemes by principal underwriters and contract
dealers, (b) prevent unjust discrimination or preferential treatment
among buyers, and (c) ensure an orderly distribution of investment
company shares by eliminating price competition from dealers offering
shares at less than the published sales price and repurchasing shares
at more than the published redemption price.
    6. Applicants believe that none of these purposes will be thwarted
by permitting ETS to trade in the secondary market at negotiated
prices. Applicants state that (a) secondary market trading in ETS does
not directly involve Trust assets and (b) to the extent different
prices exist during a given trading day, or from day to day, such
variances occur as a result of third-party market forces, such as
supply and demand, not as a result of unjust or discriminatory
manipulation. Therefore, applicants assert that secondary market
transactions in ETS will not lead to discrimination or preferential
treatment among purchasers. Finally, applicants contend that the
proposed distribution system will be orderly because competitive forces
in the marketplace will ensure that the difference between the market
price of ETS and their NAV remains narrow.

Section 24(d) of the Act

    7. Section 24(d) of the Act provides, in relevant part, that the
prospectus delivery exemption provided to dealer transactions by
section 4(3) of the Securities Act does not apply to any transaction in
a redeemable security issued by an open-end investment company.
Applicants seek relief from section 24(d) to permit dealers selling ETS
in the secondary markets to rely on the prospectus delivery exemption
provided by section 4(3) of the Securities Act.\12\
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    \12\ Applicants state that they are not seeking relief from the
prospectus delivery requirement for non-secondary market
transactions, such as transactions in which an investor purchases
ETS from the Funds or an underwriter. Applicants further state that
each Fund's Prospectus will caution broker-dealers and others that
some activities on their part, depending on the circumstances, may
result in their being deemed statutory underwriters and subject them
to the prospectus delivery and liability provisions of the
Securities Act. For example, a broker-dealer firm and/or its client
may be deemed a statutory underwriter if it takes Creation Units
after placing an order with the Distributor, breaks them down into
the constituent ETS, and sells those ETS directly to customers, or
if it chooses to couple the creation of a supply of new ETS with an
active selling effort involving solicitation of secondary market
demand for ETS. Each Fund's Prospectus will state that whether a
person is an underwriter depends upon all of the facts and
circumstances pertaining to that person's activities. The Prospectus
also will state that dealers who are not ``underwriters'' but are
participating in a distribution (as contrasted to ordinary secondary
market trading transactions), and thus dealing with ETS that are
part of an ``unsold allotment'' within the meaning of section
4(3)(C) of the Securities Act, would be unable to take advantage of
the prospectus delivery exemption provided by section 4(3) of the
Securities Act.
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    8. Applicants state that secondary market investors will regard ETS
in a manner similar to other securities, including closed-end fund
shares that are listed, bought and sold on an Exchange. Applicants note
that shares of closed-end fund investment companies are sold in the
secondary market unaccompanied by a prospectus.
    9. Applicants contend that ETS, as a listed security, merit a
reduction in the compliance costs and regulatory burdens resulting from
the imposition of prospectus delivery obligations in the secondary
market. Because ETS will be exchange-listed, prospective investors will
have access to several types of market information about ETS.
Applicants state that information regarding market price and volume
will be continually available on a real-time basis throughout the day
from the relevant Exchange, automated quotation systems, published or
other public sources or on-line information services. Applicants expect
that the previous day's closing price and volume information for ETS
also will be published daily in the financial section of newspapers. In
addition, the Trust expects to maintain a website that includes
quantitative information updated on a daily basis, including, for each
Fund, daily trading volume, the NAV and the reported closing price. The
website will also include, for each Fund, a calculation of the premium
or discount of the reported closing price against NAV, and data in
chart format displaying the frequency distribution of discounts and
premiums of the reported closing price against the NAV, within
appropriate ranges, for each of the four previous calendar quarters.
    10. Applicants will make available for distribution to secondary
market purchasers of ETS a product description (``Product
Description'') that describes, in plain English, the Trust, relevant
Fund and its ETS. Applicants state that,

while not intended as a substitute for a Prospectus, the Product
Description will contain information about ETS that is tailored to meet
the needs of investors purchasing ETS in the secondary market. The
Product Description will also disclose the potential for deviation over
time between the return of the Leveraged Funds or Inverse Funds and the
multiple return of the corresponding Underlying Index and provide an
example of this deviation in returns over time in the same manner as in
the Prospectus.

Section 22(e)

    11. Section 22(e) of the Act generally prohibits a registered
investment company from suspending the right of redemption or
postponing the date of payment of redemption proceeds for more than
seven days after the tender of a security for redemption. Applicants
state that settlement of redemptions for Funds based on Underlying
Foreign Indices (``Foreign Funds'') is contingent not only on the
settlement cycle of the United States market, but also on delivery
cycles in local markets for underlying foreign securities held by the
Foreign Funds. Applicants state that local market delivery cycles for
transferring Redemption Securities to redeeming investors, coupled with
local market holiday schedules, will, under certain circumstances,
require a delivery process longer than seven calendar days for Foreign
Funds. Applicants request relief under section 6(c) of the Act from
section 22(e) to allow Foreign Funds to pay redemption proceeds up to
14 calendar days after the tender of a Creation Unit for redemption.
Except as disclosed in the relevant Foreign Fund's Prospectus, Product
Description and/or SAI, applicants expect that each Foreign Fund will
be able to deliver redemption proceeds within seven days.\13\ With
respect to future Foreign Funds, applicants seek the same relief from
section 22(e) only to the extent that circumstances similar to those
described in the application exist.
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    \13\ Rule 15c6-1 under the Exchange Act requires that most
securities transactions be settled within three business days of the
trade. Applicants acknowledge that no relief obtained from the
requirements of section 22(e) will affect any obligations applicants
may have under rule 15c6-1.
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    12. Applicants state that section 22(e) was designed to prevent
unreasonable, undisclosed and unforeseen delays in the payment of
redemption proceeds. Applicants assert that the requested relief will
not lead to the problems that section 22(e) was designed to prevent.
Applicants state that the SAI will disclose those local holidays (over
the period of at least one year following the date of the SAI), if any,
that are expected to prevent the delivery of redemption proceeds in
seven calendar days, and the maximum number of days needed to deliver
the proceeds for each Foreign Fund. Applicants are not seeking relief
from section 22(e) with respect to Foreign Funds that do not effect
creations and redemptions of Creation Units in-kind.

Sections 17(a)(1) and 17(a)(2) of the Act

    13. Section 17(a) of the Act generally prohibits an affiliated
person of a registered investment company, or an affiliated person of
such a person (``Second-Tier Affiliate''), from selling any security to
or purchasing any security from the company. Section 2(a)(3) of the Act
defines ``affiliated person'' to include (a) any person directly or
indirectly owning, controlling or holding with power to vote 5% or more
of the outstanding voting securities of the other person, (b) any
person 5% or more of whose outstanding voting securities are directly
or indirectly owned, controlled or held with the power to vote by the
other person, and (c) any person directly or indirectly controlling,
controlled by or under common control with the other person. Section
2(a)(9) of the Act provides that a control relationship will be
presumed where one person owns more than 25% of another person's voting
securities.
    14. Applicants request an exemption from section 17(a) of the Act
pursuant to sections 17(b) and 6(c) of the Act to permit persons to
effectuate in-kind purchases and redemptions with a Fund when they are
affiliated persons of the Fund or Second-Tier Affiliates solely by
virtue of one or more of the following: (a) Holding 5% or more, or more
than 25%, of the outstanding ETS of one or more Funds; (b) having an
affiliation with a person with an ownership interest described in (a);
or (c) holding 5% or more, or more than 25%, of the shares of one or
more other registered investment companies (or series thereof) advised
by the Adviser or an entity, controlling, controlled by or under common
control with the Adviser.
    15. Section 17(b) of the Act authorizes the Commission to exempt a
proposed transaction from section 17(a) of the Act if evidence
establishes that the terms of the transaction, including the
consideration to be paid or received, are reasonable and fair and do
not involve overreaching on the part of any person concerned, and the
proposed transaction is consistent with the policies of the registered
investment company and the general provisions of the Act. Applicants
assert that no useful purpose would be served by prohibiting these
types of affiliated persons from purchasing or redeeming Creation Units
through ``in-kind'' transactions. The deposit procedures for both in-
kind purchases and in-kind redemptions of Creation Units will be the
same for all purchases and redemptions. Deposit Securities and
Redemption Securities will be valued in the same manner as the
securities held by the Funds. Therefore, applicants state that in-kind
purchases and redemptions will afford no opportunity for the affiliated
persons described above to effect a transaction detrimental to other
holders of ETS. Applicants also believe that in-kind purchases and
redemptions will not result in self-dealing or overreaching of the
Fund.

Applicants' Conditions

    Applicants agree that any order of granting the requested relief
will be subject to the following conditions:
    1. The Prospectus and Product Description will clearly disclose
that, for purposes of the Act, ETS are issued by the Funds and the
acquisition of ETS by investment companies is subject to the
restrictions of section 12(d)(1) of the Act, except as permitted by an
exemptive order that permits registered investment companies to invest
in a Fund beyond the limits in section 12(d)(1), subject to certain
terms and conditions, including that the registered investment company
enter into an agreement with the Fund regarding the terms of the
investment.
    2. As long as the Trust operates in reliance on the requested
order, the ETS will be listed on an Exchange.
    3. Neither the Trust nor any Fund will be advertised or marketed as
an open-end investment company or a mutual fund. The Prospectus will
prominently disclose that ETS are not individually redeemable shares
and will disclose that the owners of ETS may acquire those ETS from a
Fund and tender those ETS for redemption to a Fund in Creation Units
only. Any advertising material that describes the purchase or sale of
Creation Units or refers to redeemability will prominently disclose
that ETS are not individually redeemable, and that owners of ETS may
acquire those ETS from a Fund and tender those ETS for redemption to a
Fund in Creation Units only.
    4. Before a Fund may rely on the order, the Commission will have
approved, pursuant to rule 19b-4 under the Exchange Act, an Exchange
rule or an amendment thereto, requiring Exchange members and member
organizations effecting transactions in

ETS to deliver a Product Description to purchasers of ETS.
    5. The Trust's Web site, which will be publicly accessible at no
charge, will contain the following information, on a per ETS basis, for
each Fund: (a) The prior Business Day's NAV and the reported closing
price, and a calculation of the premium or discount of such price
against such NAV; and (b) data in chart format displaying the frequency
distribution of discounts and premiums of the daily closing price
against the NAV, within appropriate ranges, for each of the four
previous calendar quarters (or the life of the Fund, if shorter). In
addition, the Product Description for each Fund will state that the
Trust's Web site has information about the premiums and discounts at
which the ETS have traded.
    6. The Prospectus and annual report for each Fund also will
include: (a) The information listed in condition 5(b), (i) in the case
of the Prospectus, for the most recently completed year (and the most
recently completed quarter or quarters, as applicable) and (ii) in the
case of the annual report, for the immediately preceding five years (or
the life of the Fund, if shorter); and (b) the following data,
calculated on a per ETS basis for one, five and ten year periods (or
life of the Fund, if shorter), (i) the cumulative total return and the
average annual total return based on NAV and closing price, and (ii)
the cumulative total return of the relevant Underlying Index.
    7. The requested relief to permit ETF operations will expire on the
effective date of any Commission rule under the Act that provides
relief permitting the operation of index-based exchange-traded funds
and exchange-traded funds that seek to return a multiple, the inverse
or an inverse multiple of an index.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-21763 Filed 9-17-08; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 80, Number 186 (Friday, September 25, 2015)]
[Notices]
[Pages 57812-57816]
[FR Doc No: 2015-24452]

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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2015-0386; FRL-9933-68]

Pesticide Registration Review; Draft Human Health and Ecological
Risk Assessments for Sulfonylureas and Certain Other Pesticides; Notice
of Availability and Request for Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: This notice announces the availability of and opens a public
comment period on EPA's draft human health and ecological risk
assessments for the registration review of a group of pesticides known
collectively as sulfonylureas (SUs) that are identified individually in
this document in Table 1 of Unit III, as well as additional chemicals
identified in Table 2 of Unit III. This notice also announces both the
opening of the registration review docket and the availability of the
registration review human health and ecological risk assessments for
antimycin A and imazosulfuron. Registration review is EPA's periodic
review of pesticide registrations to ensure that each pesticide
continues to satisfy the statutory standard for registration that is
the pesticide can perform its intended function without unreasonable
adverse effects on human health or the environment. As part of the
registration review process, the Agency has completed a comprehensive
preliminary human health and ecological risk assessment for the
pesticide uses of the identified pesticides. After reviewing comments
received during the public comment period, EPA may issue a revised risk
assessment, explain any changes to the draft risk assessment, and
respond to comments and may request public input on risk mitigation
before completing a proposed registration review decision for the
identified pesticides. Through this program, EPA is ensuring that the
registration of each pesticide is based on current scientific and other
knowledge, including its effects on human health and the environment.

DATES: Comments must be received on or before November 24, 2015.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2015-0386, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC
20460-0001.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://
www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For pesticide specific information,
contact: The Chemical Review Manager listed in Table 1 and Table 2 of
Unit III.
    For general questions on the registration review program, contact:
Richard Dumas, Pesticide Re-Evaluation Division (7508P), Office of
Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

 A. Does this action apply to me?

    This action is directed to the public in general, and may be of
interest to a wide range of stakeholders including environmental, human
health, farm worker, and agricultural advocates; the chemical industry;
pesticide users; and members of the public interested in the sale,
distribution, or use of pesticides. Since others also may be
interested, the Agency has not attempted to describe all the specific
entities that may be affected by this action. If you have any questions
regarding the applicability of this action to a particular entity,
consult the Chemical Review Manager listed in Table 1 and Table 2 of
Unit III.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.
    3. Environmental justice. EPA seeks to achieve environmental
justice, the fair treatment and meaningful involvement of any group,
including minority and/or low income populations, in the development,
implementation, and enforcement of environmental laws, regulations, and
policies. To help address potential environmental justice issues, the
Agency seeks information on any groups or segments of the population
who, as a result of their location, cultural practices, or other
factors, may have atypical or disproportionately high and adverse human
health impacts or environmental effects from exposure to the pesticides
discussed in this document, compared to the general population.

II. Authority

    EPA is conducting the registration review of the pesticides
identified in this document pursuant to section 3(g) of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et
seq., and the Procedural Regulations for Registration Review at 40 CFR
part 155, subpart C. FIFRA section 3(g) provides, among other things,
that the registrations of pesticides are to be reviewed every 15 years.
Under FIFRA, a pesticide product may be registered or remain registered
only if it meets the statutory standard for registration given in FIFRA
section 3(c)(5) (7 U.S.C. 136a(c)(5)). When used in accordance with
widespread and commonly recognized practice, the pesticide product must
perform its intended function without unreasonable adverse effects on
the environment; that is, without any unreasonable risk to man or the
environment, or a human dietary risk from residues that result from the
use of a pesticide in or on food.

III. Registration Reviews

    As directed by FIFRA section 3(g), EPA is reviewing the
registrations for the pesticides listed in Tables 1 and 2 to ensure
that each pesticide on the list

continues to satisfy the FIFRA standard for registration--that is, that
these pesticides can still be used without unreasonable adverse effects
on human health or the environment.

Table 1--Draft Risk Assessments Being Made Available for Public Comment--
                              Sulfonylureas
------------------------------------------------------------------------
                                                       Chemical review
  Registration review case        Docket ID No.      manager and contact
        name and No.                                     information
------------------------------------------------------------------------
Bensulfuron-methyl..........  EPA-HQ-OPP-2011-0663  Moana Appleyard,
7216<EMAIL_ADDRESS>(703) 308-
                                                     8175.
Chlorimuron-ethyl...........  EPA-HQ-OPP-2010-0478  Wilhelmena
7403........................                         Livingston,
<EMAIL_ADDRESS>(703)
                                                     308-8025.
Chlorsulfuron...............  EPA-HQ-OPP-2012-0878  Miguel Zavala,
0631<EMAIL_ADDRESS>(703) 347-0504.
Flazasulfuron...............  EPA-HQ-OPP-2011-0994  Ricardo Jones,
7271<EMAIL_ADDRESS>(703) 347-0493.
Foramsulfuron...............  EPA-HQ-OPP-2012-0387  Jose Gayoso,
7252<EMAIL_ADDRESS>                                                     ,<PHONE_NUMBER>.
Halosulfuron-methyl.........  EPA-HQ-OPP-2011-0745  Brittany Pruitt,
7233<EMAIL_ADDRESS>(703) 347-
                                                     0289.
Imazosulfuron...............  EPA-HQ-OPP-2015-0625  Caitlin Newcamp,
7285-1<EMAIL_ADDRESS>(703) 347-
                                                     0325.
Iodosulfuron-methyl-sodium..  EPA-HQ-OPP-2012-0717  Katherine St. Clair,
7253<EMAIL_ADDRESS>(703) 347-
                                                     8778.
Mesosulfuron-methyl.........  EPA-HQ-OPP-2012-0833  Jolene Trujillo,
7277<EMAIL_ADDRESS>(303) 312-
                                                     6579.
Metsulfuron-methyl..........  EPA-HQ-OPP-2011-0375  Katherine St. Clair,
7205<EMAIL_ADDRESS>(703) 347-
                                                     8778.
Nicosulfuron................  EPA-HQ-OPP-2012-0372  Miguel Zavala,
7227<EMAIL_ADDRESS>(703) 347-0504.
Orthosulfamuron.............  EPA-HQ-OPP-2011-0438  Khue Nguyen,
7270<EMAIL_ADDRESS>                                                     ,<PHONE_NUMBER>.
Primisulfuron-methyl........  EPA-HQ-OPP-2011-0844  Christina Scheltema,
7220<EMAIL_ADDRESS>(703) 308-
                                                     2201.
Prosulfuron.................  EPA-HQ-OPP-2011-1010  Wilhelmena
7235........................                         Livingston,
<EMAIL_ADDRESS>(703)
                                                     308-8025.
Rimsulfuron.................  EPA-HQ-OPP-2012-0178  Jose Gayoso,
7218<EMAIL_ADDRESS>                                                     ,<PHONE_NUMBER>.
Sulfometuron-methyl.........  EPA-HQ-OPP-2012-0433  Caitlin Newcamp,
3136<EMAIL_ADDRESS>(703) 347-
                                                     0325.
Sulfosulfuron...............  EPA-HQ-OPP-2011-0434  Kelly Ballard,
7247<EMAIL_ADDRESS>(703) 305-8126.
Thifensulfuron-methyl.......  EPA-HQ-OPP-2011-0171  Brittany Pruitt,
7206<EMAIL_ADDRESS>(703) 347-
                                                     0289.
Triasulfuron................  EPA-HQ-OPP-2012-0115  Margaret Hathaway,
7221<EMAIL_ADDRESS>(703) 305-
                                                     5076.
Tribenuron-methyl...........  EPA-HQ-OPP-2010-0626  Brittany Pruitt,
7217<EMAIL_ADDRESS>(703) 347-
                                                     0289.
Trifloxysulfuron-Sodium.....  EPA-HQ-OPP-2013-0409  Kelly Ballard,
7208<EMAIL_ADDRESS>(703) 305-8126.
Triflusulfuron-methyl.......  EPA-HQ-OPP-2012-0605  Matthew Manupella,
7236<EMAIL_ADDRESS>(703) 347-
                                                     0411.
------------------------------------------------------------------------

    A single, streamlined ecological risk assessment document covering
the 22 sulfonylurea chemicals listed in Table 1, as well as 22
chemical-specific human health risk assessments separately addressing
the same 22 active ingredients are being made available for public
review and comment. The sulfonylureas (SUs) are an established and
widely used class of agricultural pesticides in the United States. They
are used to control broadleaf and grassy weeds and are registered for
many agricultural and non-agricultural uses. The ecological risk
assessment examines risks from the SUs simultaneously but not
cumulatively. The streamlined assessment for SUs will focus on the
risks to plants. This single document approach is intended to increase
efficiency and consistency in assessing potential risks from this class
of compounds. Separate human health risk assessment documents have been
generated for each of the SUs because of differences in toxicity
endpoints and points of departure.

Table 2--Draft Risk Assessments Being Made Available for Public Comment--
                          Additional Chemicals
------------------------------------------------------------------------
                                                       Chemical review
  Registration review case        Docket ID No.      manager and contact
        name and No.                                     information
------------------------------------------------------------------------
Antimycin A.................  EPA-HQ-OPP-2015-0480  Christina Scheltema,
4121<EMAIL_ADDRESS>(703) 308-
                                                     2201.
Chlorpyrifos-methyl.........  EPA-HQ-OPP-2010-0119  Joel Wolf,
8011<EMAIL_ADDRESS><PHONE_NUMBER>.

Dicrotophos.................  EPA-HQ-OPP-2008-0440  Khue Nguyen,
Case 0145<EMAIL_ADDRESS>                                                     ,<PHONE_NUMBER>.
Dimethoate..................  EPA-HQ-OPP-2009-0059  Kelly Ballard,
0088<EMAIL_ADDRESS>(703) 305-8126.
Diquat Dibromide............  EPA-HQ-OPP-2009-0846  Bonnie Adler,
0288<EMAIL_ADDRESS>(703) 308-8523.
Ethoprop....................  EPA-HQ-OPP-2008-0560  Tracy Perry,
0106<EMAIL_ADDRESS>                                                     ,<PHONE_NUMBER>.
Fosamine ammonium...........  EPA-HQ-OPP-2010-0215  James Parker,
2355<EMAIL_ADDRESS>(703) 306-0469.
Hexazinone..................  EPA-HQ-OPP-2009-0755  Dana L. Friedman,
0266<EMAIL_ADDRESS>(703) 347-8827.
Methoxyfenozide.............  EPA-HQ-OPP-2012-0663  Bonnie Adler,
7431<EMAIL_ADDRESS>(703) 308-8523.
Profenofos..................  EPA-HQ-OPP-2008-0345  Christina Scheltema,
2540<EMAIL_ADDRESS>(703) 308-
                                                     2201.
Tebufenozide................  EPA-HQ-OPP-2008-0824  Christina Scheltema,
7416<EMAIL_ADDRESS>(703) 308-
                                                     2201.
Terbufos....................  EPA-HQ-OPP-2008-0119  Matthew Manupella,
0109<EMAIL_ADDRESS>(703) 347-
                                                     0411.
Tribufos....................  EPA-HQ-OPP-2008-0883  Marianne Mannix,
2145<EMAIL_ADDRESS>(703) 347-
                                                     0275.
------------------------------------------------------------------------

    Antimycin A. Draft Human Health and Ecological Risk Assessments,
Preliminary Work Plan (EPA-HQ-OPP-2015-0480). Antimycin A
(Fintrol[supreg]) is a restricted use pesticide registered for limited
aquatic use by the U.S. National Park Service to control invasive
species and restore native fish populations. EPA has completed combined
scoping and preliminary human health and ecological risk assessments
for Antimycin A. These assessments are limited to the current
registered uses of Antimycin A in accordance with the Federal label and
do not consider endangered species or endocrine effects.
    Chlorpyrifos-methyl. Draft Human Health and Ecological Risk
Assessments (EPA-HQ-OPP-2010-0119). Chlorpyrifos-methyl is registered
as an insecticide used to target and kill a variety of stored grain
insects including beetles, weevils, moths, and grain borers. The
registered uses of chlorpyrifos-methyl are limited to indoor
applications made to the interior of empty grain storage bins or
warehouses. EPA conducted a preliminary ecological risk assessment and
effects determination and a human health risk assessment. An endangered
species assessment was completed and a No Effect determination was made
for all listed species, as well as a No Habitat Modification
determination for all designated critical habitats for the currently
registered uses of chlorpyrifos-methyl. Chlorpyrifos-methyl was not on
either initial list of chemicals to be screened under the EDSP, and an
endangered species assessment has not been conducted at this time.
    Dicrotophos. Draft Human Health and Ecological Risk Assessments
(EPA-HQ-OPP-2008-0440). Dicrotophos is an organophosphate insecticide
mainly used on cotton and ornamental trees. Dicrotophos is primarily
used to target stinkbugs and tarnished plant bugs in cotton growing
states. EPA published preliminary human health and ecological risk
assessments in 2014 for public comment. EPA has revised its human
health risk assessment by revising the Food Quality Protection Act
(FQPA) safety factor and its dietary analysis. EPA has identified
possible dietary risk for both adults and children, possible spray
drift risks, and possible occupational handler risk from both aerial
and ground application. EPA has revised its ecological risk assessment
by providing additional characterization of potential ecological risk
from typical application rates and average foliar residue (i.e.,
Kenaga) values for mammalian and bird dietary exposure. EPA identified
possible ecological risks for the following taxa: Aquatic
invertebrates, mammals, birds, and terrestrial invertebrates. An
endangered species assessment has not been completed for dicrotophos at
this time. Dicrotophos was not on the first list of chemicals for
endocrine disruption screening.
    Dimethoate. Draft Human Health and Ecological Risk Assessments
(EPA-HQ-OPP-2009-0059). Dimethoate is a wide spectrum systemic
organophosphate insecticide. It is registered for use on a wide variety
of agricultural crops, tree crops, ornamentals, and non-cropland
adjacent to agricultural fields. There are no residential uses. EPA
conducted a comprehensive human health risk assessment and identified
potential risks of concern for dietary and occupational exposures. EPA
also conducted a screening level ecological risk assessment that
addressed all registered use of dimethoate. Potential risks were
identified for freshwater, estuarine/marine, and terrestrial
invertebrates, birds, and mammals. An endangered species assessment has
not been completed for dimethoate at this time. Dimethoate was
evaluated for its potential to affect endocrine systems in mammals and
wildlife and the results of the agency's review are found in the Weight
of Evidence review in this registration review docket.
    Diquat Dibromide. Draft Human Health and Ecological Risk
Assessments (EPA-HQ-OPP-2009-0846). Diquat dibromide is a non-selective
contact algicide, defoliant, desiccant, and herbicide. As an herbicide/
algicide it is registered for use to control weeds in non-crop
(including residential) and aquatic areas. As a desiccant/defoliant, it
is registered for use on seed crops and potatoes. The Agency issued a
FWP for diquat dibromide in March 2011, and data were called in. The
reviews of those data are incorporated into the draft risk assessments.
The ecological risk assessment identifies risk of concern for both
terrestrial and aquatic

organisms. The human health risk assessment identifies risks of
concerns for residential and occupations handlers via inhalation, and
dermal concerns for workers after application. Diquat dibromide was not
on either initial list of chemicals to be screened under the Endocrine
Disruptor Screening Program (EDSP), and an endangered species
assessment has not been conducted at this time.
    Ethoprop. Draft Human Health and Ecological Risk Assessments (EPA-
HQ-OPP-2008-0560). Ethoprop is an organophosphate, restricted use
insecticide-nematicide registered for use on a variety of crops,
including potatoes and sugarcane. The Agency has completed draft risk
assessments for ethoprop, which identified both human health and
ecological risks of concern. These assessments do not consider
endangered species. Ethoprop was evaluated for its potential to affect
endocrine systems in mammals and wildlife and the results of the
agency's review are found in the Weight of Evidence review in this
registration review docket.
    Fosamine Ammonium. Draft Human Health and Ecological Risk
Assessments (EPA-HQ-OPP-2010-0215). Fosamine ammonium is an herbicide
which is applied to prevent growth of undesirable seedlings and
saplings of brush and vines. Fosamine ammonium is registered for use on
non-agricultural rights-of way, industrial sites, fencerows, and pine
plantations. It is used for general weed control in uncultivated
nonagricultural areas (e.g., airports, highway, railroad and utility
rights-of-way, and sewage disposal areas), uncultivated agricultural
areas (e.g., non-crop producing farmyards, fuel storage areas,
fencerows) and industrial sites (e.g., lumberyards, pipeline and tank
farms). The Agency has conducted a human health risk assessment for
fosamine ammonium. The Agency has also conducted a quantitative
ecological risk assessment, which includes a screening-level listed
species assessment. Fosamine ammonium was not on either initial list of
chemicals to be screened under the EDSP, and an endangered species
assessment has not been conducted at this time.
    Hexazinone. Draft Human Health and Ecological Risk Assessments
(EPA-HQ-OPP-2009-0755). Hexazinone is a broad spectrum herbicide
registered for use on food and feed crops (including alfalfa,
blueberry, pineapple, sugarcane), non-food crops (including Christmas
tree plantations, industrial areas, recreational areas), drainage
systems, and in forestry (including conifer release, reforestation,
forest trees). EPA conducted a comprehensive human health risk
assessment and did not identify any risks of concern for dietary or
residential exposure. Most occupational risks identified may be
addressed with additional levels of personal protective equipment,
though some scenarios still pose concerns considering engineering
controls. EPA also conducted a preliminary ecological risk assessment
that identified potential risks, mainly to terrestrial and aquatic
plants. Hexazinone was not on either initial list of chemicals to be
screened under the EDSP, and an endangered species assessment has not
been conducted at this time.
    Methoxyfenozide. Draft Human Health and Ecological Risk Assessments
(EPA-HQ-OPP-2013-0606). Methoxyfenozide is a diacylhydrazine
insecticide and insect growth regulator registered for use on a variety
of agricultural and non-agricultural sites. The ecological assessment
indicates that methoxyfenozide has the potential for direct acute and
chronic effects on listed and non-listed freshwater and estuarine/
marine invertebrates. The likelihood of direct adverse effects on
birds, terrestrial-phase amphibians, reptiles, mammals, fish, aquatic-
phase amphibians, and terrestrial and aquatic plants as a result of
registered methoxyfenozide use is expected to be low. However, taxa
that depend on aquatic invertebrate species may be indirectly affected.
The endangered species protection bulletin for methoxyfenozide can be
found by following the links at http://www.epa.gov/oppfead1/endanger/bulletins.htm). The human health risk assessment considered both
current and pending proposed uses of methoxyfenozide, and the Agency
concluded there were no risks of concern identified for any route or
duration of exposure. Methoxyfenozide was not included in either the
first or second list of chemicals to be screened for endocrine
disruptor potential.
    Profenofos. Draft Human Health and Ecological Risk Assessments
(EPA-HQ-OPP-2008-0345). Profenofos (Curacron[supreg]) is an
organophosphate, restricted use insecticide registered for use on
cotton. However, use has declined significantly since 2000, and EPA has
not found any reports of use since 2011. The Agency has completed
preliminary human health and ecological risk assessments for
profenofos. Profenofos was not on either initial list of chemicals to
be screened under the EDSP, and an endangered species assessment has
not been conducted at this time.
    Tebufenozide. Draft Human Health and Ecological Risk Assessments
(EPA-HQ-OPP-2008-0824). Tebufenozide (Confirm[supreg]) is an insect
growth regulator registered for use on a variety of crops, mint,
ornamentals, tree and nut fruit and in forestry. EPA has completed
preliminary human health and ecological risk assessments for
tebufenozide. Tebufenozide was not on either initial list of chemicals
to be screened under the EDSP, and an endangered species assessment has
not been conducted at this time.
    Terbufos. Draft Human Health and Ecological Risk Assessments (EPA-
HQ-OPP-2008-0119). Terbufos is a systemic organophosphate insecticide-
nematicide used to control a variety of pests on corn (field and sweet
corn), grain sorghum, and sugar beets. EPA conducted a dietary and
occupational human health risk assessment. The agency identified
dietary and occupational risks. EPA also conducted a comprehensive
ecological risk assessment and found risks to both aquatic and
terrestrial animals. Endangered species, EDSP and pollinator
assessments have not been completed for terbufos at this time.
    Tribufos. Draft Human Health and Ecological Risk Assessments (EPA-
HQ-OPP-2008-0883). Tribufos is an organophospate chemical used as a
pre-harvest desiccant on cotton. The Environmental Protection Agency
conducted comprehensive human health and ecological risk assessments,
which identified human health and ecological risks. Tribufos was not on
either initial list of chemicals to be screened under the EDSP, and an
endangered species assessment has not been conducted at this time.
    Pursuant to 40 CFR 155.53(c), EPA is providing an opportunity,
through this notice of availability, for interested parties to provide
comments and input concerning the Agency's draft human health and
ecological risk assessments for the pesticides identified in this
document. Such comments and input could address, among other things,
the Agency's risk assessment methodologies and assumptions, as applied
to this draft risk assessment. The Agency will consider all comments
received during the public comment period and make changes, as
appropriate, to the draft human health and ecological risk assessment.
EPA will then issue a revised risk assessment, explain any changes to
the draft risk assessment, and respond to comments. In the Federal
Register notice announcing the availability of the revised risk
assessment, if the revised risk assessment indicates risks of concern,
the Agency may provide a comment

period for the public to submit suggestions for mitigating the risk
identified in the revised risk assessment before developing a proposed
registration review decision on the pesticides identified in this
document.
    1. Other related information. Additional information on the
pesticides identified in this document is available on the Pesticide
Registration Review Status Web page. Information on the Agency's
registration review program and its implementing regulation is
available at http://www.epa.gov/oppsrrd1/registration_review.
    2. Information submission requirements. Anyone may submit data or
information in response to this document. To be considered during a
pesticide's registration review, the submitted data or information must
meet the following requirements:
     To ensure that EPA will consider data or information
submitted, interested persons must submit the data or information
during the comment period. The Agency may, at its discretion, consider
data or information submitted at a later date.
     The data or information submitted must be presented in a
legible and useable form. For example, an English translation must
accompany any material that is not in English and a written transcript
must accompany any information submitted as an audiographic or
videographic record. Written material may be submitted in paper or
electronic form.
     Submitters must clearly identify the source of any
submitted data or information.
     Submitters may request the Agency to reconsider data or
information that the Agency rejected in a previous review. However,
submitters must explain why they believe the Agency should reconsider
the data or information in the pesticide's registration review.
    As provided in 40 CFR 155.58, the registration review docket for
each pesticide case will remain publicly accessible through the
duration of the registration review process; that is, until all actions
required in the final decision on the registration review case have
been completed.

    Authority:  7 U.S.C. 136 et seq.

    Dated: September 21, 2015.
Richard P. Keigwin, Jr.,
Director, Pesticide Re-Evaluation Division, Office of Pesticide
Programs.
[FR Doc. 2015-24452 Filed 9-24-15; 8:45 am]
 BILLING CODE 6560-50-P


CWright@ arcticcatinc. c om Received Date: 10/ 15/ 2004 10: 26: 32 AM Transmission Date: 10/ 15/ 2004 10: 26: 32 AM To: Linc Wehrly/ AA/ USEPA/ US@ EPA cc: Subject: Tech Amendments Hi Linc,

I have two concerns with the tech amendments.

1. 1051.225( f)( 1) See below ( the following cite should include strikeout and underlined text). There is a fundamental change in meaning here from a " must" to a " may not". If we are raising an FEL it is because PLT units are not passing. The problem is how do units already produced comply to the FEL if PLT results are not making it and we can't change the FEL for these units? If you recall, we asked EPA to include this section for this very reason and we discussed this at length. I don't believe your intent to make us recall the engines that we produced before raising the FEL. If so that is that is a monumental change, not a technical amendment. I also do not believe that you intend to let us take credit for engines already produced that are failing PLT without a recall. If so please add language to clarify this.

Honestly, I find it really disturbing to discover this change in the language. I sincerely hope that it was just a simple error because this was an important issue for us and we had an understanding with EPA as to how this section solved the problem in a way that was acceptable for all of us.

( f) You may ask to change your FEL in the following cases: ( 1) You may ask to raise your FEL for your engine family after the start of production. You must use may not apply the higher FEL for the entire family to engines you have already introduced into commerce. Use the appropriate FELs with corresponding sales volumes to calculate your average emission level under, as described in subpart H of this part. In your request, you must demonstrate that you will still be able to comply with the applicable average emission standards as specified in subparts B and H of this part.

2. We would like to see some language in the technical amendments that clarifies what you said below about tamper proof screws on carburetors that use jet charts. I recommend adding the following paragraph:

1051.115( d)( 3)( vi) The adjustable range of carburetor screws, such as air screw, fuel screw, and idle speed screw must be defined by stops, limits, or specification on the jetting chart in a manner consistent with requirements for specifying jet sizes and needle configuration in this section.

Thanks, Chris Wehrly. Linc@ epamail. epa. gov on 09/ 24/ 2004 03: 03: 07 PM To: CWright@ arcticcatinc. com cc: Subject: Re: Oil cap Chris, It would be ok to use a pressure relief oil cap as long as it is only a fix for models that you've already sold and not to be used on any current or future models. As for your question the other day, idle screws would be considered the same as jets and needles. You do not need to sell tamper proof screws on your carburetors. Let me know if you have any other questions.

Linc Linc Wehrly USEPA Certification and Compliance Division ( 734) 214 4286 wehrly. linc@ epa. gov CWright@ arcticcatinc. com To: Linc Wehrly/ AA/ USEPA/ US@ EPA cc: Subject: Oil cap Transmission Date: 09/ 24/ 2004 02: 47: 45 PM Hi Linc,

I forgot to bring up another issue when I talked to you today about adjustable parameters on snowmobiles. We have had a few customers that have been able to find conditions of extreme cold and riding styles that result in moister traveling through the breather tube to freeze and plug the tube on our 4 stroke turbo models. We have not been able to repeat the problem here but have had more than one report. We have changed the design of current and future models to supply engine coolant to the breather area to prevent freezing, however, this is difficult to retrofit on to prior model years.

For prior models we would like to supply an oil cap directly to the customer with a pressure relief valve. This valve would relieve crankcase gasses into the engine compartment in very rare conditions where the breather tube temporarily freezes closed. If venting does not occur when the breather freezes up then the PTO seal blows out or the dipstick pops out and oil goes everywhere resulting in a series of potential problems ( mess, stranding, serious engine damage).

Is our solution to use a pressure relief cap OK?

Thanks,

Chris


[Federal Register Volume 84, Number 128 (Wednesday, July 3, 2019)]
[Rules and Regulations]
[Page 31721]
[FR Doc No: 2019-14207]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2019-0273]

Safety Zone; Southern California Annual Firework Events for the
San Diego Captain of the Port Zone.

AGENCY: Coast Guard, DHS.

ACTION: Notice of enforcement of regulation.

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SUMMARY: The Coast Guard will enforce the safety zones for the Big Bay
Boom Fourth of July Fireworks on the waters of San Diego Bay, CA on
Thursday, July 4, 2019. The safety zones are necessary to provide for
the safety of the participants, spectators, official vessels of the
event, and general users of the waterway. Our regulation for the
Southern California Annual Firework Events for the San Diego Captain of
the Port Zone identifies the regulated areas for this event. During the
enforcement period, no spectators shall anchor, block, loiter in, or
impede the transit of official patrol vessels in the regulated areas
without the approval of the Captain of the Port, or his designated
representative.

DATES: The regulations in 33 CFR 165.1123 will be enforced for the Big
Bay Boom Fourth of July Fireworks regulated areas listed in item 5 in
the Table to Sec.  165.1123 from 8 p.m. through 10 p.m. on July 4,
2019.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
publication, call or email Lieutenant Briana Biagas, Waterways
Management, U.S. Coast Guard Sector San Diego, CA; telephone 619-278-
7656, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Coast Guard will enforce the regulations
in 33 CFR 165.1123 for safety zones on the waters of San Diego Bay, CA
for the Big Bay Boom Fourth of July Fireworks in 33 CFR 165.1123, Table
1, Item 5 of that section, from 8 p.m. through 10 p.m. on July 4, 2019.
This enforcement action is being taken to provide for the safety of
life on navigable waterways during the fireworks event. Our regulation
for Southern California Annual Firework Events for the San Diego
Captain of the Port Zone identifies the regulated areas for the Big Bay
Boom Fourth of July Fireworks event which encompasses multiple portions
of San Diego Bay. Under the provisions of 33 CFR 165.1123, a vessel may
not enter the regulated area, unless it receives permission from the
Captain of the Port, or his designated representative. Spectator
vessels may safely transit outside the regulated area but may not
anchor, block, loiter, or impede the transit of participants or
official patrol vessels. The Coast Guard may be assisted by other
Federal, State, or Local law enforcement agencies in enforcing this
regulation.
    In addition to this document in the Federal Register, the Coast
Guard will provide the maritime community with advance notification of
this enforcement period via the Local Notice to Mariners and local
advertising by the event sponsor.
    If the Captain of the Port or his designated representative
determines that the regulated area need not be enforced for the full
duration stated on this document, he or she may use a Broadcast Notice
to Mariners or other communications coordinated with the event sponsor
to grant general permission to enter the regulated area.

    Dated: June 14, 2019.
D.P. Montoro,
Captain, U.S. Coast Guard, Acting Captain of the Port San Diego.
[FR Doc. 2019-14207 Filed 7-2-19; 8:45 am]
 BILLING CODE 9110-04-P