[Federal Register: August 21, 2008 (Volume 73, Number 163)]
[Proposed Rules]
[Page 49378-49386]
[DOCID:fr21au08-22]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2008-0382; FRL-8372-4]
RIN 2070-AJ40

Lead; Fees for Accreditation of Training Programs and
Certification of Lead-Based Paint Activities and Renovation Contractors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is issuing this proposed rule to revise the existing fees
for EPA's Lead-Based Paint Activities regulations and establish fees
for the Renovation, Repair, and Painting rule. As specified in section
402 of the Toxic Substances Control Act (TSCA), EPA must establish and
implement a fee schedule to recover for the U.S. Treasury the Agency's
costs of administering and enforcing the standards and requirements
applicable to lead-based paint training programs and contractors.
Specifically, this proposed rule establishes the fees that will be
charged, in those States and Indian Tribes without authorized programs,
for training programs seeking accreditation under 40 CFR 745.225, for
firms engaged in renovations seeking certification under 40 CFR 745.89,
and for individuals or firms engaged in lead-based paint activities
seeking certification under 40 CFR 745.226.

DATES: Comments must be received on or before September 22, 2008.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2008-0382, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC.
Attention: Docket ID Number EPA-HQ-OPPT-2008-0382. The DCO is open from
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the DCO is<PHONE_NUMBER>. Such deliveries are
only accepted during the DCO's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2008-0382. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available
electronically at http://www.regulations.gov, or, if only available in
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. The telephone number of the EPA/DC Public Reading
Room is<PHONE_NUMBER>, and the telephone number for the OPPT Docket is
(202) 566-0280. Docket visitors are required to show photographic
identification, pass through a metal detector, and sign the EPA visitor
log. All visitor bags are processed through an X-ray machine and
subject to search. Visitors will be provided an EPA/DC badge that must
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number:<PHONE_NUMBER>; e-mail address: TSCA-
<EMAIL_ADDRESS>    For technical information contact: Marc Edmonds, National Program
Chemicals Division, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>    For authorization status information for States, Territories, and
Indian tribes contact: National Lead Information Center (NLIC) at 1-
800-424-LEAD.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you operate a
training program required to be accredited under 40 CFR 745.225, if you
are a firm who must be certified to conduct renovation activities in
accordance with 40 CFR 745.89, or if you are a professional (individual
or firm) who must be certified to conduct lead-based paint activities
in accordance with 40 CFR 745.226.
    This proposed rule applies only in States, Territories, and Indian
Tribes that do not have authorized programs pursuant to 40 CFR 745.324.
Potentially affected categories and entities may include, but are not
limited to:
     Building construction (NAICS code 236), e.g., single
family housing construction, multi-family housing construction,
residential remodelers.
     Specialty trade contractors (NAICS code 238), e.g.,
plumbing, heating, and air-conditioning contractors, painting and wall
covering contractors, electrical contractors, finish carpentry
contractors, drywall and insulation contractors, siding contractors,
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential
building and dwellings, residential property managers.

     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110),
e.g., elementary schools with kindergarten classrooms.
     Other technical and trade schools (NAICS code 611519),
e.g., training providers.
     Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
     Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in lead-based paint activities.
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in 40 CFR 745.89, 40 CFR
745.225, and 40 CFR 745.226. If you have any questions regarding the
applicability of this action to a particular entity, consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.

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 e-mail. 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
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 submitting comments,
remember to:
    i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Background

A. What Action is the Agency Taking?

    EPA is issuing this proposed rule for two reasons. First, EPA is
proposing to revise the existing fees for training providers, firms,
and individuals under the Lead-Based Paint Activities regulations.
Second, EPA is proposing to establish fees for training providers and
renovation firms under the recently issued Renovation, Repair, and
Painting rule. As specified in TSCA section 402, EPA must establish and
implement a fee schedule to recover for the U.S. Treasury the Agency's
costs of administering and enforcing the standards and requirements
applicable to lead-based paint training programs and contractors.
Specifically, this proposed rule establishes the fees that will be
charged, in those States and Indian Tribes without authorized programs,
for training programs seeking accreditation under 40 CFR 745.225, for
firms engaged in renovations seeking certification under 40 CFR 745.89,
and for individuals or firms engaged in lead-based paint activities
seeking certification under 40 CFR 745.226.

B. What is the Agency's Authority for Taking this Action?

    This proposed rule is being issued under the authority of TSCA
sections 402(a)(3) and 402(c)(3), 15 U.S.C. 2682(a)(3) and 2682(c)(3).

C. What Regulations Have Already Been Promulgated Under TSCA section
402?

    In 1992, Congress found that low-level lead poisoning was
widespread among American children, affecting, at that time, as many as
3,000,000 children under age 6; that the ingestion of household dust
containing lead from deteriorating or abraded lead-based paint was the
most common cause of lead poisoning in children; and that the health
and development of children living in as many as 3,800,000 American
homes was endangered by chipping or peeling lead paint, or excessive
amounts of lead-contaminated dust in their homes. Congress further
determined that the prior Federal response to this threat was
insufficient and enacted Title X of the Housing and Community
Development Act of 1992, Public Law 102-550 (also known as the
Residential Lead-Based Paint Hazard Reduction Act of 1992) (Title X).
Title X established a national goal of eliminating lead-based paint
hazards in housing as expeditiously as possible and provided a
leadership role for the Federal Government in building the
infrastructure necessary to achieve this goal.
    Title X added a new title to TSCA entitled ``Title IV-Lead Exposure
Reduction.'' Most of EPA's responsibilities for addressing lead-based
paint hazards can be found in this title, with TSCA section 402 being
one source of the rulemaking authority to carry out these
responsibilities. Section 402(a) of TSCA directs EPA to promulgate
regulations covering lead-based paint activities to ensure persons
performing these activities are properly trained, that training
programs are accredited, and that contractors performing these
activities are certified. These regulations must contain standards for
performing lead-based paint activities, taking into account
reliability, effectiveness, and safety. On August 29, 1996, EPA
promulgated final regulations under TSCA section 402(a) that govern
lead-based paint inspections, lead hazard screens, risk assessments,
and abatements in target housing and child-occupied facilities (also
referred to as the Lead-Based Paint Activities regulations) (Ref. 1).
These regulations, codified at 40 CFR part 745, subpart L, contain an
accreditation program for training providers and training and
certification requirements for lead-based paint inspectors, risk
assessors, project designers, abatement supervisors, and abatement
workers. Work practice standards for lead-based paint activities are
included. Pursuant to TSCA section 404, provision was made for
interested States, Territories, and Indian Tribes to apply for and
receive authorization to administer their own lead-based paint
activities programs. Requirements applicable to State, Territorial, and
Tribal programs are codified in 40 CFR part 745, subpart Q.

    Section 402(a)(3) of TSCA directs the Agency to establish fees to
recover the cost of administering and enforcing the standards and
requirements established under TSCA section 402. Specifically, TSCA
section 402(a)(3) requires EPA to impose fees on persons operating
training programs accredited under Title IV of TSCA and contractors
certified in accordance with TSCA section 402(a)(1). On June 9, 1999,
40 CFR part 745, subpart L, was amended to include a fee schedule for
training programs seeking EPA accreditation and for individuals and
firms seeking EPA certification (Ref. 2). These fees were established
as directed by TSCA section 402(a)(3), which requires EPA to recover
the cost of administering and enforcing the lead-based paint activities
requirements in States without authorized programs.
    Section 402(c) of TSCA pertains to renovation and remodeling
activities. TSCA section 402(c)(3) requires EPA to revise the
regulations issued under TSCA section 402(a), the Lead-Based Paint
Activities regulations, to apply to renovation or remodeling activities
that create lead-based paint hazards. On April 22, 2008, EPA issued a
final regulation applying a revised version of the Lead-Based Paint
Activities regulations to renovation, repair, and painting activities
in target housing and child-occupied facilities (the Renovation,
Repair, and Painting rule) (Ref. 3). Pursuant to the Renovation,
Repair, and Painting rule, persons performing covered renovation
activities must be properly trained, renovators and renovation firms
must be certified, and persons who provide renovator training must be
accredited. The requirements of the Renovation, Repair, and Painting
rule become effective in stages with the entire rule becoming effective
as of April 22, 2010.

D. How is EPA Proposing to Revise the Existing Fees?

    40 CFR 745.238 contains the fee schedule established in 1999 for
the Lead-Based Paint Activities regulations under TSCA section
402(a)(3). As discussed more fully in the economic analysis
accompanying the final rule establishing the current fee schedule, EPA
based a great deal of its administrative cost estimates on information
from existing State lead-based paint certification and accreditation
programs (Ref. 4). This was necessary because, at the time, EPA did not
have direct experience in administering a lead-based paint
accreditation and certification program. This is not the case today.
EPA has been administering the Federal lead-based paint accreditation
and certification program for nearly a decade. As a result, EPA has its
own data upon which to rely to estimate the future costs of
administering the program.
    To estimate the costs of administering the accreditation and
certification program, EPA followed the pattern used in the economic
analysis for the 1999 fee schedule. EPA directly estimated total costs
for enforcement activities and Headquarters administrative activities
(e.g., the cost to maintain the Federal Lead-Based Paint Program (FLPP)
database, the cost to enter data into the database), since these
activities cannot be linked to specific applications. Enforcement cost
estimates were generated based on the actual resources currently
allocated for enforcement. EPA calculated the costs for Regional
administrative activities on a per application basis, (e.g., the cost
to review an application, the cost to issue a certificate), because
these costs depend largely on the number and type of applications
received. As described in the economic analysis for this proposed rule,
the information pertaining to the Regional cost of processing
applications was determined by observing and recording actual Regional
application processing activities over a 30-day period (Ref. 5). The
total program cost for EPA Regional administrative activities would be
the sum of the EPA Regional administrative costs for each type of
application multiplied by the total number of that type of application
received.
    Since 1999, EPA has made substantial changes in the way that it
administers its accreditation and certification program. The transition
to the FLPP database and the associated centralized data processing has
resulted in a shift in processing costs from the Regions to
Headquarters. Despite inflation that has increased the cost of
government labor by 35 to 40% over this time interval, EPA's cost
estimates for this proposed rule indicate that the overall costs of the
abatement program have declined slightly in comparison to the estimates
made in 1999. In addition, although the economic analysis for this
proposed rule contains fee estimates broken down by particular
discipline as well as by type of application, EPA's observation of
Regional application processing activities indicated that there are not
likely to be substantial differences in processing costs across the
disciplines. Thus, EPA's initial estimates for the revised fees do not
differentiate accreditation and certification fees by discipline (as is
currently the case).
    EPA's initial fee estimates are as follows, rounded to the nearest
$10. These estimates are based on average Regional administrative costs
by application type, and not by discipline, with the estimated
enforcement costs and estimated Headquarters administrative costs
apportioned equally across all activities.

     Accreditation for Initial Training Course--$730
     Accreditation for Refresher Training Course--$550
     Re-accreditation for Initial Training Course--$480
     Re-accreditation for Refresher Training Course--$430
     Initial firm certification--$410
     Firm re-certification--$410
     Individual certification--$410
     Individual re-certification--$410

    EPA considered, but is not proposing to revise the existing fees to
reflect these estimates. As discussed in this unit, EPA is proposing to
adjust these estimates to lower individual certification and re-
certification fees for workers and for Federally-recognized Indian
Tribes and Tribal employees. Nevertheless, EPA requests comment on
whether these estimated fees should be imposed without such an
adjustment.
    One reason that EPA is proposing to adjust its estimates to lower
individual certification and re-certification fees is because
commenters on the 1999 fee schedule expressed concern about the fee for
individual worker certification. Several believed that the total impact
of training, certification, and lost wages during training would be
cost-prohibitive for workers, who are typically hourly wage-earners.
Other commenters contended that workers would move from firm to firm
and in and out of the business, which would make the proposed worker
certification fee cost-prohibitive for firms. Finally, some commenters
believed that the proposed worker certification fee has a
disproportionately negative impact on efforts to train and certify low-
income persons from the neighborhoods most affected by lead poisoning.
As a result of these comments, EPA lowered the worker certification fee
by adjusting the balance of administrative and enforcement costs not
directly attributable to a particular application between workers and
firms. Thus, in the final rule, the individual certification fees
ranged from $520 for risk assessors to $280 for workers. Although EPA
is not proposing to differentiate among the non-worker disciplines
(i.e., between risk assessors and supervisors), EPA believes that the
concerns pertaining to the worker discipline expressed by these
commenters are likely to be equally applicable today.

    In addition, EPA has received input from stakeholders that
indicates that Indian Tribes may be having difficulty paying firm and
individual certification fees. While TSCA section 402(a)(3) exempts
State, local government, and non-profit training programs from Federal
accreditation fees, it does not provide an exemption for certification
fees. It is EPA's understanding that Indian Tribes typically incur
certification fees for Tribal employees who perform lead-based paint
inspections and risk assessments in Tribal housing. EPA estimates that
only a small number of Indian Tribes and Tribal employees will seek
certification each year to perform these activities. Accordingly, if
EPA were to impose only a nominal certification fee on Tribal firms
(Indian Tribes seeking firm certification) and Tribal employees, and
apportion the remainder of the costs for these certifications across
all of the other accreditation and certification activities, the impact
on the resulting fee estimates for all of the other fee activities is
negligible.
    Therefore, in revising the existing fees, EPA is proposing to
establish the fees for worker certification and re-certification at
$100 less than other individual certifications and re-certifications.
Because EPA must recover all of the estimated costs of operating the
accreditation and certification program, this $100 reduction per
expected worker certification or re-certification application must be
recovered through fees charged for other applications. EPA believes
that it would be more equitable to spread the costs represented by the
$100 reduction over all of the fees charged to training course
providers and firms. The proposed fee schedule set forth below does so.
In addition, EPA is also proposing to establish nominal fees for firm
certification and re-certification for Federally-recognized Indian
Tribes and nominal fees for individual certification and re-
certification for Tribal employees. Finally, EPA is also proposing to
keep the certificate replacement fee at $15, the certification exam fee
at $70 and the multi-jurisdiction registration fee at $35. Accordingly,
EPA is proposing to revise the existing fees in 40 CFR 745.238 as
follows:
     Accreditation for Initial Training Course--$870.
     Accreditation for Refresher Training Course--$690.
     Re-accreditation for Initial Training Course--$620.
     Re-accreditation for Refresher Training Course--$580.
     Initial firm certification--$550.
     Initial Tribal firm certification--$20.
     Firm re-certification--$550.
     Tribal firm re-certification--$20.
     Individual certification (for all disciplines except
worker)--$410.
     Individual worker certification--$310.
     Individual Tribal certification (all disciplines)--$10.
     Individual re-certification (for all disciplines except
worker)--$410.
     Individual worker re-certification--$310.
     Individual Tribal re-certification (all disciplines)--$10.
    As discussed in the economic analysis for this proposed rule, the
estimated enforcement costs and estimated Headquarters administrative
costs are not directly attributable to a specific application. EPA
considered apportioning those costs in such a way as to generate fee
estimates that are more similar to the current fees. The fees in the
following list are based on the average Regional administrative costs
by application type with the estimated enforcement costs and estimated
Headquarters administrative costs apportioned in a way that makes them
similar to the current fees. Although EPA is not proposing to establish
fees in this manner, such an apportionment results in the following
estimates:
     Accreditation for Initial Training Course--$2,140.
     Accreditation for Refresher Training Course--$950.
     Re-accreditation for Initial Training Course--$1,350.
     Re-accreditation for Refresher Training Course--$650.
     Initial firm certification--$510.
     Firm re-certification--$410.
     Individual certification (for all disciplines except
worker)--$440.
     Individual worker certification--$270.
     Individual re-certification (for all disciplines except
worker)--$380.
     Individual worker re-certification--$230.
    The apportionment of the estimated enforcement and Headquarters
administrative costs in this way results in a substantially higher fee
for accreditation and re-accreditation of training programs, as well as
for firm certification. The individual certification and re-
certification fees are correspondingly lower. EPA requests comment on
whether the enforcement and Headquarters administrative costs should be
apportioned this way to make the revised fees being proposed in this
document more consistent with the existing fees.

E. What Renovation, Repair, and Painting Fees are being Proposed?

    EPA interprets the language of TSCA section 402(c)(3), which
requires EPA to revise the TSCA section 402(a) regulations to apply to
renovation and remodeling activities that create lead-based paint
hazards, to include the establishment of fees as directed by TSCA
section 402(a)(3). Therefore, EPA is also proposing to establish fees
for the accreditation and re-accreditation of persons who provide
renovator or dust sampling technician training and fees for the
certification and re-certification of renovation firms. In accordance
with the Renovation, Repair, and Painting Rule, beginning on April 22,
2009, training course providers may apply to EPA for renovator or dust
sampling technician course accreditation (Ref. 3). Renovation firms may
begin applying for certification to perform renovation, repair, and
painting activities on October 22, 2009.
    EPA's method for estimating fees to recover the costs of
administering the renovation, repair, and painting accreditation and
certification program is similar to the method used to estimate the
proposed revisions to the existing fees in 40 CFR 745.238. Because the
training provider accreditation and firm certification processes are
virtually identical under the Lead-Based Paint Activities regulations
and the Renovation, Repair, and Painting rule, EPA used the same
estimates for Regional administrative costs in calculating all of the
fees being proposed in this action. However, because the substantive
provisions of the Renovation, Repair, and Painting rule will not be
fully implemented until April 2010, EPA does not have actual
application totals upon which to base its estimates of the number of
accreditation and certification applications that will be received in
the future. In addition, EPA is not currently conducting enforcement
activities related to the Renovation, Repair, and Painting Program, so
the enforcement costs for the program must be estimated based on
projected EPA resources to be devoted to enforcement of the program,
rather than on actual enforcement activities. As for the initial
estimates for the Lead-Based Paint Activities regulations accreditation
and certification fees, the estimated enforcement costs and estimated
Headquarters administrative costs for the Renovation, Repair, and
Painting rule accreditation and certification program have been
apportioned equally across all activities. A more detailed description
of how these costs were calculated is presented

in the economic analysis for this proposed rule (Ref. 5). Based upon
its estimate of the costs of administering the Renovation, Repair, and
Painting Program, EPA is proposing to establish the following fees:
     Accreditation for Initial Renovator or Dust Sampling
Technician Course--$560.
     Accreditation for Refresher Renovator or Dust Sampling
Technician Course--$400.
     Re-accreditation for Initial Renovator or Dust Sampling
Technician Course--$340.
     Re-accreditation for Refresher Renovator or Dust Sampling
Technician Course--$310.
     Initial renovation firm certification--$300.
     Initial Tribal renovation firm certification--$20.
     Renovation firm re-certification--$300.
     Tribal renovation firm re-certification--$20.
    EPA is not proposing to establish individual certification and re-
certification fees because the Renovation, Repair, and Painting rule
does not require individuals to apply to EPA for certification.
Eliminating this requirement also eliminates a significant portion of
the Regional and Headquarters administrative costs that would have to
be recovered by a certification fee. The portion of the enforcement
costs that would have been attributed to individuals has been
distributed evenly across the Renovation, Repair, and Painting Program
fees for training provider accreditation and firm certification.
    EPA's economic analysis for this proposed rule calculates
administrative and enforcement costs for the Lead-Based Paint
Activities regulations separately from those costs for the Renovation,
Repair, and Painting rule. This is primarily due to the differences in
estimation methods necessary for an existing, mature program, the Lead-
Based Paint Activities regulations, as compared to a new program for
which implementation has not yet begun. This approach results in
similar fees for firm certification and re-certification under the two
programs, but the Renovation, Repair, and Painting Program
accreditation and re-accreditation fees are considerably lower than the
corresponding fees for the Lead-Based Paint Activities regulations. The
administrative and enforcement cost estimates for these two programs
could be combined to yield accreditation, re-accreditation, firm
certification, and firm re-certification fees that are the same for
both programs. EPA requests comment on whether the estimated costs for
these two programs should be combined in such a manner. Commenters
should keep in mind that the 212,000 renovation firm certification
applications that EPA expects to receive in the first year of the
Renovation, Repair, and Painting Program vastly outweigh the numbers of
other types of applications under either regulation that EPA expects to
receive in the same time period. As a result, modest adjustments in
either direction to the renovation firm certification fees will result
in dramatic changes to the accreditation fees.
    Although EPA believes that this action will not have a significant
economic impact on a substantial number of small entities, the Agency
understands that many of the firms that must comply with the
Renovation, Repair, and Painting rule will be sole proprietors, many of
which earn low annual revenues. EPA estimates that, of the 211,721
firms seeking certification, approximately 104,712 of them are sole
proprietorships with no employees. Because the fees associated with the
rule will have the greatest impact on firms earning low revenues, the
Agency is considering reducing the certification fee for renovation
firms that have annual revenues below $25,000 based on gross receipts.
    EPA requests comment on whether firms with annual revenues below
$25,000 should pay a reduced firm certification fee of $100. This
reduction would be offset by increasing the fees for the other firms
and/or training providers. If the reduction is passed on to other firms
that do not qualify for the lower fee, these firms would pay a
certification fee of $370. EPA requests comment on reducing fees for
certain small businesses, whether these fees would be appropriate, what
level of revenue should trigger the lower fee, or whether a measure
other than gross receipts, such as number of employees, should be used
to determine who qualifies for the reduced fee. The Agency also
requests comment on how the reduction in fees should be distributed
between training providers and firms.
    When EPA estimated the number of firms that would qualify for the
reduced certification fee, the Agency used data from the U.S. Census
Bureau and a study published by the Joint Center for Housing Studies of
Harvard University for estimates of the total numbers of firms that are
sole proprietorships and earn below $25,000 annually. EPA also relied
on the following assumption from the Economic Analysis for the final
Renovation, Repair, and Painting rule regarding which lessors and
property managers would seek firm certification which states ``that
only establishments with employees are expected to seek certification;
non-employers are unlikely to have the time or manpower to perform
renovations themselves and are more likely to hire an outside
contractor for work that disturbs more than 6 square feet of a painted
surface.'' EPA solicits comments on its numerical estimates of the
numbers of lessors and property managers, including those without
employees, that will require firm certification. The Agency is
particularly interested in any data that would help in refining these
estimates.
    EPA also requests comments on whether the final rule should
establish lower Federal fees for State and local governments seeking
firm certification and their employees seeking individual
certification. These governments are already exempt under TSCA section
402(a)(3) from paying Federal accreditation fees and EPA believes some
additional cost savings may be justified. The Agency is aware that
State and local governments may spend a significant portion of
abatement program funds on certifications thereby reducing funds
available for performing important public services related to
abatements. To address this funding issue, EPA is considering lowering
the Federal certification fees for State and local governments under
the Lead-Based Paint Activities regulations and Renovation, Repair, and
Painting rule. For example, governments could pay 50% of the firm and
individual fees proposed in this action. If fees are decreased for
governments then fees for non-government firms and individuals would
have to be increased. At this time the Agency does not know how many
State and local governments fall under this proposed rule and thus can
not estimate how a decrease in fees for governments would effect other
fees. Thus, EPA requests comment on whether certification fees should
be lower for State and local governments and their employees, what
those fees should be, and how to apportion the remainder of the costs
for these certifications across all of the other accreditation and
certification activities. The Agency also requests comment on how many
State and local government firms and individuals must comply with the
Lead-Based Paint Activities regulations and Renovation, Repair, and
Painting rule. This information would help EPA determine the impact
that lowering the fees for governments would have on accreditation and
certification fees for non-government entities.

III. References

    The following is a list of the documents that are specifically
referenced in this proposed rule and placed in the public docket that
was established under docket ID number EPA-HQ-OPPT-2008-0382. For
information on accessing the docket, refer to the ADDRESSES unit.
    1. EPA. Lead; Requirements for Lead-Based Paint Activities in
Target Housing and Child-Occupied Facilities. Final Rule. Federal
Register (61 FR 45778, August 29, 1996) (FRL-5389-9).
    2. EPA. Lead; Fees for Accreditation of Training Programs and
Certification of Lead-based Paint Activities Contractors. Final Rule.
Federal Register (64 FR 31092, June 9, 1999) (FRL-6058-6).
    3. EPA. Lead; Renovation, Repair, and Painting Program. Final Rule.
Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7)
    4. EPA. Office of Pollution Prevention and Toxics (OPPT). Economic
Analysis of the Final TSCA Section 402(a)(3) Lead-based Paint
Accreditation and Certification Fee Rule (February 1999).
    5. EPA. OPPT. Economic Analysis for the TSCA Section 402 Lead-Based
Paint Accreditation and Certification Fee Rule (June 2008).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866, entitled Regulatory Planning and Review
(58 FR 51735, October 4, 1993) and is therefore not subject to review
under the Executive Order. EPA has prepared an economic analysis of the
potential impact of this action. The impact of the fees for the Lead-
based Paint Activities regulations is estimated to be $1.2 million per
year, or $6.1 million over the next 5 years. The impact of the fees for
the Renovation, Repair, and Painting Program is estimated to be $61
million in the first year, and $22 million in each of the following 4
years, or $150 million over the next 5 years. EPA's analysis is
contained in a document entitled Economic Analysis of the TSCA Section
402 Lead-Based Paint Accreditation and Certification Fee Rule. This
document is available as a part of the public docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden
because this proposal would merely establish fees associated with
previously promulgated accreditation and certification application
requirements. The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in 40 CFR
part 745, subpart E and subpart L, under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2070-0155 (EPA ICR number 1715). The OMB control numbers
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined in accordance with section 601
of RFA as:
    1. A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities that are potentially directly regulated by this proposed rule
include: Small businesses (including abatement and renovation
contractors, environmental testing firms, and property owners and
managers); small nonprofits (including day care centers, private
schools, and advocacy groups); and small governments (local
governments, school districts).
    This proposal would result in a slight overall decrease in the fees
currently assessed under the Lead-Based Paint Activities regulations.
Fees for training providers will decrease with the exception of the
project designer course refresher. Individual fees will decrease for
the certification and recertification of risk assessors, and the
certification of supervisors and project designers. Consequently, EPA
estimates that this portion of the proposed rule will have no adverse
impact on small entities; in fact the small entities affected by the
proposed rule will incur cost savings. With respect to the fees for the
Renovation, Repair, and Painting rule, EPA estimates that there are an
average of 204,958 small entities that would be affected by this
proposed rule. Of these, there are an estimated 179,820 small
businesses with an average impact ranging from 0.007% to 0.220%, 18,088
small non-profits with an average impact ranging from 0.006% to 0.097%,
and 7,050 small governments with an average impact ranging from 0.0004%
to 0.002%.
    Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this proposed rule on small entities. In
response to concerns about impacts on abatement workers and the firms
that employ them, EPA is proposing reduced fees for worker
certification. However, TSCA section 402(a)(3) requires EPA to recover
the costs of administering its lead training course provider
accreditation and contractor certification program through fees. To the
extent that EPA lowers accreditation or certification fees for small
businesses (or some subset of small businesses), larger businesses
would be required to contribute more. We continue to be interested in
the potential impacts of the proposed rule on small entities and
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 of
UMRA do not apply when they are inconsistent with applicable law.
Moreover, section 205 of UMRA allows

EPA to adopt an alternative other than the least costly, most cost-
effective, or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before EPA establishes any regulatory requirements that
may significantly or uniquely affect small governments, including
Tribal governments, it must have developed under section 203 of UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
    EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any 1 year. EPA has prepared an economic analysis of
the potential impact of this action, which is estimated to be $156
million over the next 5 years which is an average of $31 million per
year. Thus, this proposed rule is not subject to the requirements of
sections 202 and 205 of UMRA.
    In addition, EPA has determined that this proposed rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Small governments may perform lead-based paint
inspections, risk assessments, or abatements, or operate schools that
are child-occupied facilities. EPA generally measures a significant
impact under UMRA as being expenditures, in the aggregate, of more than
1% of small government revenues in any 1 year. As explained in Unit
III.C., the proposed rule is expected to result in small government
impacts well under 1% of revenues. So EPA has determined that the
proposed rule does not significantly affect small governments. Nor does
the proposed rule uniquely affect small governments, as the proposed
rule is not targeted at small governments, does not primarily affect
small governments, and does not impose a different burden on small
governments than on other entities that perform regulated activities.

E. Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This proposal merely seeks to
establish fees, as required by TSCA sections 402(a)(3) and 402(c)(3),
to recover the costs of administering the previously promulgated
Federal lead-based paint accreditation and certification programs.
Thus, Executive Order 13132 does not apply to this proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

F. Tribal Implications

    Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments (65 FR 67249, November 6, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This proposed rule does not have
tribal implications, as specified in Executive Order 13175, because
this proposal would only establish fees, as required by TSCA section
402(a)(3) and 402(c)(3), to recover the costs of administering the
previously promulgated Federal Lead-Based Paint Accreditation and
Certification Programs. Thus, Executive Order 13175 does not apply to
this proposed rule. Nonetheless, EPA specifically solicits additional
comment on this proposed rule from Tribal officials.

G. Children's Health Protection

    This action is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997) because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. This proposal
merely seeks to establish fees, as required by TSCA sections 402(a)(3)
and 402(c)(3), to recover the costs of administering the previously
promulgated Federal lead-based paint accreditation and certification
programs.

H. Energy Effects

    This proposed rule is not subject to Executive Order 13211,
entitled Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because
it is not a significant regulatory action under Executive Order 12866.

I. Technology Standards

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

J. Environmental Justice

    Executive Order 12898, entitled, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994) establishes Federal
executive policy on environmental justice. Its main provision directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations

because it does not affect the level of protection provided to human
health or the environment. This proposal merely seeks to establish
fees, as required by TSCA sections 402(a)(3) and 402(c)(3), to recover
the costs of administering the previously promulgated Federal lead-
based paint accreditation and certification programs.

List of Subjects in 40 CFR Part 745

    Environmental protection, Fees, Lead, Lead-based paint, Renovation.

    Dated: August 13, 2008.
Stephen L. Johnson,
Administrator.
    Therefore, it is proposed that 40 CFR chapter I be amended as
follows:

PART 745--[AMENDED]

    1. The authority citation for part 745 would continue to read as
follows:

    Authority: 15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.

    2. Section 745.92 is added to subpart E to read as follows:

Sec.  745.92  Fees for the accreditation of renovation and dust
sampling technician training and the certification of renovation firms.

    (a) Persons who must pay fees. Fees in accordance with paragraph
(b) of this section must be paid by:
    (1) Training programs. (i) All non-exempt training programs
applying to EPA for the accreditation and re-accreditation of training
programs in one or more of the following disciplines: Renovator, dust
sampling technician.
    (ii) Exemption. No fee shall be imposed on any training program
operated by a State, federally recognized Indian Tribe, local
government, or nonprofit organization. This exemption does not apply to
the certification of firms or individuals.
    (2) Firms. All firms applying to EPA for certification and re-
certification to conduct renovations.
    (b) Fee amounts--(1) Certification and accreditation fees. Initial
and renewal certification and accreditation fees are specified in the
following table:

               Certification and Accreditation Fee Levels
------------------------------------------------------------------------
                                                       Re-accreditation
        Training Program             Accreditation      (every 4 years)
------------------------------------------------------------------------
Initial Renovator or Dust         $560                $340
 Sampling Technician Course
------------------------------------------------------------------------
Refresher Renovator or Dust       $400                $310
 Sampling Technician Course
------------------------------------------------------------------------
Renovation Firm                   Certification       Re-certification
                                                       (every 5 years)
------------------------------------------------------------------------
Firm                              $300                $300
Tribal Firm.....................  $20...............  $20
------------------------------------------------------------------------

    (2) Lost certificate. A $15 fee will be charged for the replacement
of a firm certificate.
    (c) Certificate replacement. Firms seeking certificate replacement
must:
    (1) Complete the applicable portions of the ``Application for
Firms'' in accordance with the instructions provided.
    (2) Submit the application and a payment of $15 in accordance with
the instructions provided with the application package.
    (d) Failure to remit fees. (1) EPA will not provide certification,
re-certification, accreditation, or re-accreditation for any firm or
training program that does not remit fees described in paragraph (b) of
this section in accordance with the procedures specified in 40 CFR
745.89.
    (2) EPA will not replace a certificate for any firm that does not
remit the $15 fee in accordance with the procedures specified in
paragraph (c) of this section.
    3. Section 745.238 of subpart L is amended as follows:
    a. Revise the table in paragraph (c)(1).
    b. Remove the phrase ``to Conduct Lead-based Paint Activities'' in
paragraph (d)(1)(ii).
    c. Remove the phrase ``to Conduct Lead-based Paint Activities'' in
paragraph (e)(1)(ii).

Sec.  745.238  Fees for accreditation and certification of lead-based
paint activities.

* * * * *
    (c) * * *
    (1) * * *

               Certification and Accreditation Fee Levels
------------------------------------------------------------------------
                                                       Re-accreditation
                                                        (every 4 years,
        Training Program             Accreditation        see 40 CFR
                                                       745.225(f)(1) for
                                                           details)
------------------------------------------------------------------------
Initial Course                                        ..................
 Inspector......................  $870..............  $620
 Risk assessor..................  $870..............  $620
 Supervisor.....................  $870..............  $620
 Worker.........................  $870..............  $620
 Project Designer...............  $870..............  $620
------------------------------------------------------------------------
Refresher Course                                      ..................
 Inspector......................  $690..............   $580
 Risk assessor..................  $690..............   $580
 Supervisor.....................  $690..............  $580
 Worker.........................  $690..............   $580
 Project Designer...............  $690..............  $580
------------------------------------------------------------------------

Lead-based Paint Activities--      Certification      Re-certification
 Individual                                            (every 3 years,
                                                       see 40 CFR
                                                       745.226(e)(1) for
                                                       details)
------------------------------------------------------------------------
Inspector                          $410               $410
Risk assessor...................   $410.............   $410
Supervisor......................  $410..............   $410
Worker..........................  $310..............   $310
Project designer................   $410.............  $410
Tribal certification (all         $10...............  $10
 disciplines).
------------------------------------------------------------------------
Lead-based Paint Activities--      Certification      Re-certification
 Firm                                                  (every 3 years,
                                                       see 40 CFR
                                                       745.226(f)(7) for
                                                       details)
------------------------------------------------------------------------
Firm                               $550               $550
Tribal Firm.....................  $20...............  $20
------------------------------------------------------------------------

* * * * *
[FR Doc. E8-19432 Filed 8-20-08; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register: February 4, 2008 (Volume 73, Number 23)]
[Notices]
[Page 6544-6546]
[DOCID:fr04fe08-77]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57224; File No. SR-Phlx-2008-03]

Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to the Listing Standards for Index-Linked Securities

January 29, 2008.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on January 24, 2008, the Philadelphia Stock Exchange, Inc. (``Phlx'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been substantially prepared by the
Exchange. Phlx filed the proposal pursuant to section 19(b)(3)(A) of
the Act \3\ and Rule 19b-4(f)(6) thereunder,\4\ which renders the
proposal effective upon filing with the Commission. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Phlx Rule 803(n)(1) to permit the
listing of Index-Linked Securities \5\ that do not meet the minimum
public holders and/or public distribution requirements when such Index-
Linked Securities is redeemable at the option of the holders thereof on
at least a weekly basis. The text of the proposed rule change is
available at the Exchange, the Commission's Public Reference Room, and
http://www.phlx.com.

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

    \5\ Index-Linked Securities are securities that provide for the
payment at maturity of a cash amount based on the performance of an
underlying index or indexes. Such securities may or may not provide
for the repayment of the original principal investment amount. See
Phlx Rule 803(n).
---------------------------------------------------------------------------

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

    In its filing with the Commission, Phlx included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements

may be examined at the places specified in Item IV below. The Exchange
has prepared summaries, set forth in sections A, B, and C below, of the
most significant aspects of such statements.

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

1. Purpose
    The Exchange proposes to amend Phlx Rule 803(n), the Exchange's
listing standards for Index-Linked Securities, to encourage trading of
Index-Linked Securities on the Exchange. The Commission has recently
approved a similar proposal by NYSE Arca, Inc. (``NYSE Arca'').\6\
---------------------------------------------------------------------------

    \6\ Securities Exchange Act Release No. 56593 (October 1, 2007),
72 FR 57362 (October 9, 2007) (SR-NYSEArca-2007-96) (providing,
among other things, that, if an issue of Index-Linked Securities is
redeemable at the option of the holders thereof on at least a weekly
basis, both the minimum one million publicly held trading units and
400 beneficial holders initial distribution requirements would not
apply).
---------------------------------------------------------------------------

    Phlx Rule 803(n)(1) generally requires that each issue of Index-
Linked Securities have at least one million publicly traded units and
that there be at least 400 public holders, provided, however, that the
minimum public distribution and public shareholders requirements do not
apply to an issue traded in thousand dollar denominations. In addition,
Phlx Rule 803(n)(1) provides that the minimum public shareholders
requirement does not apply if the Index-Linked Securities are
redeemable at the option of the holders thereof on at least a weekly
basis. The Exchange proposes to add another exception to the general
requirements of Phlx Rule 803(n)(1) such that, if an issue of Index-
Linked Securities are redeemable at the option of the holders thereof
on at least a weekly basis, then both the minimum public holders and
public distribution requirements would not apply.
    The Exchange believes that, where there is such a weekly redemption
right, the same justification exists for an exemption from the
requirement to have one million units issued at the time of listing as
applies to the 400 public holder requirement. The Exchange believes
that a weekly redemption right will ensure a strong correlation between
the market price of the Index-Linked Securities and the performance of
the underlying index, as holders will be unlikely to sell their
securities for less than their redemption value if they have a weekly
right to be redeemed for their full value. In addition, in the case of
those Index-Linked Securities with a weekly redemption feature that are
currently listed on a national securities exchange, as well as all of
those that are currently proposed to be listed, the issuer has the
ability to issue new Index-Linked Securities from time to time at the
indicative value at the time of such sale. The Exchange believes that
this provides a ready supply of new Index-Linked Securities, thereby
lessening the possibility that the market price of such securities
would be affected by a scarcity of available Index-Linked Securities
for sale. The Exchange believes that it also assists in maintaining a
strong correlation between the market price and the indicative value,
as investors will be unlikely to pay more than the indicative value in
the open market if they can acquire Index-Linked Securities from the
issuer at that price.
    The Exchange believes that the ability to list Index-Linked
Securities with these characteristics without any minimum number of
units issued or holders is important to the successful listing of such
securities. Issuers issuing these types of Index-Linked Securities
generally do not intend to do so by way of an underwritten offering.
Rather, the distribution arrangement is analogous to that of an
exchange-traded fund issuance, in that the issue is launched without
any significant distribution event, and the float increases over time
as investors purchase additional securities from the issuer at the then
indicative value. Investors will generally seek to purchase the
securities at a point when the underlying index is at a level that they
perceive as providing an attractive growth opportunity. In the context
of such a distribution arrangement, it is difficult for an issuer to
guarantee its ability to sell a specific number of units on the listing
date. However, the Exchange believes that this difficulty in ensuring
the sale of one million units on the listing date is not indicative of
a likely long-term lack of liquidity in the securities or, for the
reasons set forth in the prior paragraph, of a difficulty in
establishing a pricing equilibrium in the securities or a successful
two-sided market.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\7\ in general, and furthers the objectives of Section
6(b)(5), in particular,\8\ in that it is designed to promote just and
equitable principles of trade, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

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

    The Exchange states that no written comments on the proposed rule
change were either solicited or received.

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

    Because the foregoing proposed rule change: (1) Does not
significantly affect the protection of investors or the public
interest; (2) does not impose any significant burden on competition;
and (3) by its terms does not become operative for 30 days after the
date of this filing, or such shorter time as the Commission may
designate if consistent with the protection of investors and the public
interest, the proposed rule change has become effective pursuant to
section 19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to provide the Commission
with written notice of its intent to file the proposed rule change,
along with a brief description and text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has fulfilled this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing. However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requests that the Commission waive
the 30-day operative delay and make the proposed rule change operative
upon filing because the proposal raises no novel issues and is based on
a previously approved proposal filed by NYSE Arca.\11\ The Commission
believes that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest because the Exchange's
proposed amendment would conform its listing standards for Index-Linked
Securities with respect to minimum

public holders and public distribution to be substantively identical to
the parallel listing standards of other national securities exchanges,
which the Commission has previously approved.\12\ In addition, the
Commission notes that it has also previously approved substantively
identical rules for other new derivative security products.\13\ The
Commission further believes that the proposal should benefit investors
by creating, without undue delay, additional competition in the market
for Index-Linked Securities. For these reasons, the Commission
designates the proposed rule change as operative upon filing.\14\
---------------------------------------------------------------------------

    \11\ See supra note 6.
    \12\ See, e.g., Section 107(A)(b) of the Company Guide for the
American Stock Exchange LLC (``Amex''); Rule 5.2(j)(1)(A) of NYSE
Arca Equities, Inc.; and Section 703.22(B)(1) of the Listed Company
Manual for the New York Stock Exchange LLC.
    \13\ For example, in addition to applying to Index-Linked
Securities, Section 107(A)(b) of the Amex Company Guide applies to
other new derivative security products such as Index-Linked
Exchangeable Notes.
    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-Phlx-2008-03 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2008-03. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-Phlx-2008-03 and should be
submitted on or before February 25, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-1962 Filed 2-1-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: April 16, 2008 (Volume 73, Number 74)]
[Notices]
[Page 20625-20626]
[DOCID:fr16ap08-45]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2008-0135; FRL-8357-8]

Experimental Use Permit; Receipt of Application

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This notice announces receipt of an application 524-EUP-00
from Monsanto Company requesting an experimental use permit (EUP) for
the plant-incorporated protectants: 1) Bacillus thuringiensis Cry1A.105
protein and the genetic material necessary for its production (vector
PV-ZMIR245) in event MON 89034 corn, 2) Bacillus thuringiensis Cry2Ab2
protein and the genetic material necessary for its production (vector
PV-ZMIR245) in event MON 89034 corn, 3) Bacillus thuringiensis Cry3Bb1
protein and the genetic material necessary for its production (Vector
ZMIR39) in Event MON 88017 corn (Organization for Economic Cooperation
and Development (OECD) Unique Identifier: MON-88017-3), 4) Bacillus
thuringiensis subspecies Cry1F protein and the genetic material
necessary for its production (plasmid insert PHI 8999) in corn, and 5)
Bacillus thuringiensis Cry34Ab1 and Cry35Ab1 proteins and the genetic
material necessary for their production (plasmid insert PHP 17662) in
Event DAS-59122-7 corn. The Agency has determined that the application
may be of regional and national significance. Therefore, in accordance
with 40 CFR 172.11(a), the Agency is soliciting comments on this
application.

DATES: Comments must be received on or before May 16, 2008.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2008-0135, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket's normal hours of operation (8:30 a.m. to 4
p.m., Monday through Friday, excluding legal holidays). Special
arrangements should be made for deliveries of boxed information. The
Docket Facility telephone number is<PHONE_NUMBER>.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2008-0135. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and

included as part of the comment that is placed in the docket and made
available on the Internet. If you submit an electronic comment, EPA
recommends that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index
available in regulations.gov. To access the electronic docket, go to
http://www.regulations.gov, select ``Advanced Search,'' then ``Docket
Search.'' Insert the docket ID number where indicated and select the
``Submit'' button. Follow the instructions on the regulations.gov
website to view the docket index or access available documents.
Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either in the electronic docket at http://
www.regulations.gov, or, if only available in hard copy, at the OPP
Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The hours of operation of this
Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket Facility telephone number is (703)
305-5805.

FOR FURTHER INFORMATION CONTACT: Mike Mendelsohn, Biopesticides and
Pollution Prevention Division (7511P), Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general. This action may,
however, be of interest to those persons interested in agricultural
biotechnology or those who are or may be required to conduct testing of
chemical substances under the Federal Food, Drug, and Cosmetic Act
(FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA). Since other entities may also 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 person
listed under FOR FURTHER INFORMATION CONTACT.

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 e-mail. 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 submitting comments,
remember to:
    i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Background

    Monsanto Company and Dow AgroSciences have used conventional
breeding techniques to produce the combined trait corn product MON
89034 (Cry1A.105 and Cry2Ab2) x TC1507 (Cry1F) x MON 88017 (Cry3Bb1) x
DAS-59122-7 (Cry34Ab1 and Cry35Ab1) that provides insect protection
against lepidopteran insects including European corn borer, as well as
the coleopteran corn rootworms. Monsanto has submitted an EUP
application to test 383 acres of the combined trait product, 2,570
acres of the intermediate breeding combinations, 190 acres of MON
89034, 509 acres of other registered plant-incorporated protectants,
and 1,341 acres of non-plant-incorporated protectant corn acres and
border rows through June 30, 2009.
    Trial protocols to be conducted include:
     Breeding and observation nursery.
     Inbred seed increase and sample hybrid production.
     Line per se.
     Hybrid yield and herbicide tolerance.
     Insect efficacy.
     Product characterization and performance.
     Insect resistant management.
     Seed treatment.
    States involved include: Alabama, Arkansas, California, Colorado,
Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri,
Nebraska, New York, North Carolina, Ohio, Oregon, Pennsylvania, Puerto
Rico, South Dakota, Tennessee, Texas, Washington, and Wisconsin.

III. What Action is the Agency Taking?

    Following the review of the Monsanto Company application and any
comments and data received in response to this notice, EPA will decide
whether to issue or deny the EUP request for this EUP program, and if
issued, the conditions under which it is to be conducted. Any issuance
of an EUP will be announced in the Federal Register.

IV. What is the Agency's Authority for Taking this Action?

    The Agency's authority for taking this action is under FIFRA
section 5.

List of Subjects

    Environmental protection, Experimental use permits.

    Dated: April 7, 2008.
Janet L. Andersen,
Director, Biopesticides and Pollution Prevention Division, Office of
Pesticide Programs.

[FR Doc. E8-8004 Filed 4-15-08; 8:45 am]

BILLING CODE 6560-50-S