[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Rules and Regulations]
[Pages 38563-38569]
[FR Doc No: 2021-15529]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2020-0056; FRL-8737-01-R4]

Ocean Dumping; Modification of an Ocean Dredged Material Disposal
Site Offshore Port Everglades, Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is expanding the
size of the EPA designated ocean dredged material disposal site (ODMDS)
offshore of Port Everglades, Florida (referred to hereafter as the
existing Port Everglades ODMDS), pursuant to the Marine Protection,
Research and Sanctuaries Act (MPRSA). The primary purpose for the site
modification is to enlarge the site to provide for the long-term
disposal capacity to dump suitable material dredged from the Port
Everglades Harbor in ocean waters. The modified site will be subject to
monitoring and management to ensure continued protection of the marine
environment.

DATES: Effective: August 23, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R04-OW-2020-0056. All documents in the docket are listed on the
http://www.regulations.gov website.

FOR FURTHER INFORMATION CONTACT: Wade Lehmann, U.S. Environmental
Protection Agency, Region 4, Water Division, Oceans and Estuarine
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone
number<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: EPA proposed rulemaking on March 13, 2020,
and re-released for further public review on May 22, 2020 (85 FR 14622
and 85 FR 31133), which was a proposal to expand the size of the Port
Everglades ODMDS. Additionally, EPA is releasing a Finding of No
Significant Impact and a final Environmental Assessment (EA), pursuant
to the National Environmental Policy Act, which are available in the
docket for this action (Docket ID No. EPA-R04-OW-2020-0056). EPA's
responses to comments received on the proposed rule and the draft EA
are also available in the docket for this action.

I. Potentially Affected Persons

    Persons potentially affected by this action include those who seek
or might seek permits or approval to dispose of

dredged material into ocean waters pursuant to the MPRSA, 33 U.S.C.
1401 to 1445. The EPA's action would be relevant to persons, including
organizations and government bodies seeking to dispose of dredged
material in ocean waters offshore of Port Everglades, Florida.
Currently, the U.S. Army Corps of Engineers (USACE) would be most
affected by this action. Potentially affected categories and persons
include:

------------------------------------------------------------------------
           Category            Examples of potentially regulated persons
------------------------------------------------------------------------
Federal Government...........  USACE Civil Works projects, and other
                                Federal agencies.
Industry and general public..  Port authorities, marinas and harbors,
                                shipyards and marine repair facilities,
                                berth owners.
State, local and tribal        Governments owning and/or responsible for
 governments.                   ports, harbors, and/or berths,
                                government agencies requiring disposal
                                of dredged material associated with
                                public works projects.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular entity, please refer to the contact person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.

II. Background

a. History of Disposal Sites Offshore of Port Everglades, Florida

    There is currently one designated ODMDS off the coast of Port
Everglades in Florida. The existing Port Everglades ODMDS is located
three nautical miles offshore of Fort Lauderdale. EPA designated the
Port Everglades ODMDS in 2005 with an area of 1.34 square nautical
miles (nmi\2\).
    The USACE Jacksonville District and EPA Region 4 identified a need
to either designate a new ODMDS or modify the existing Port Everglades
ODMDS. The reasons for modifying the ocean disposal capacity are based
on future dredged material capacity requirements, historical dredging
volumes, estimates of dredging volumes for future proposed projects,
and limited capacity of upland disposal in the area.
    EPA is expanding the existing Port Everglades ODMDS rather than
designate a new site off the coast of Fort Lauderdale for ocean dumping
of dredged material. The modification of the existing Port Everglades
ODMDS for dredged material, however, does not mean that the USACE or
the EPA has approved the use of the existing Port Everglades ODMDS or a
modified Port Everglades ODMDS for open water disposal of dredged
material from any specific project. Before any person can ocean dump
dredged material at an ODMDS, EPA and the USACE must evaluate the
project according to the ocean dumping regulatory criteria (40 CFR part
227) and the USACE must issue a permit or other authorization document
(e.g., contract specifications) for the transportation and disposal of
dredged material and must attain concurrence from EPA. Under section
103 of the MPRSA, the USACE is the Federal agency that initially
determines whether to issue a permit authorizing the ocean disposal of
dredged materials. In the case of Federal navigation projects, the
USACE may implement the MPRSA directly in the Federal projects
involving ocean disposal of dredged materials. The USACE relies on
EPA's ocean dumping criteria when evaluating permit requests for (and
implementing Federal projects involving) the transportation of dredged
material for the purpose of dumping it into ocean waters. MPRSA permits
and Federal projects involving ocean dumping of dredged material are
subject to EPA review and concurrence under MPRSA 33 U.S.C. 1413(c).
EPA may concur with or without conditions or decline to concur on the
permit, i.e., non-concur. If EPA concurs with conditions, the final
permit or authorization must include those conditions. If EPA declines
to concur (non-concurs), the USACE cannot issue the permit for ocean
dumping of dredged material or authorize the disposal. EPA's site
modification is supported by a final Environmental Assessment (EA),
which EPA previously provided for public notice as draft and is
available in the docket for this action (Docket ID No. EPA-R04-OW-2020-
0056).

b. Location and Configuration of the Port Everglades ODMDS

    With this action, EPA expands the size of the Port Everglades
ODMDS, which is at depths between -587 to -761 feet of water (-179 to -
232 meters). The ODMDS expansion increases the area of the existing
Port Everglades ODMDS from approximately 1.34 nmi\2\ to 3.21 nmi\2\.
The ODMDS is bounded by the coordinates listed below. The coordinates
for the site are in North American Datum 83 (NAD 83):
Modified Port Everglades ODMDS
(A) 26[deg]08.750' N, 80[deg]01.000' W
(B) 26[deg]08.750' N, 80[deg]02.578' W
(C) 26[deg]06.500' N, 80[deg]02.578' W
(D) 26[deg]06.500' N, 80[deg]01.000' W

The Site Management and Monitoring Plan (SMMP) allows EPA to adaptively
manage the site to maximize its capacity, minimize the potential for
mounding and loss of fine sediments outside of the site, and minimize
the potential for any long-term adverse effects to the marine
environment.

c. Management and Monitoring of the Site

    The ODMDS is expected to receive dredged material from the Federal
navigation project at Port Everglades Harbor, Florida, and dredged
material from other applicants who obtain a permit for the disposal of
dredged material at the ODMDS. All persons using the site shall comply
with the conditions set forth in the most recent approved SMMP, which
EPA (in conjunction with the USACE) specifically developed for the
ODMDS. The SMMP includes management and monitoring provisions to ensure
that dredged materials disposed at the ODMDS are suitable for disposal
in the ocean and that adverse impacts of disposal, if any, are
addressed to the maximum extent practicable. The SMMP includes
provisions to avoid and minimize potential impacts to coral reefs
present near Port Everglades. The SMMP for the ODMDS also addresses
management of the site to ensure adverse mounding and dispersal of fine
sediments does not occur and to ensure that disposal events minimize
interference with other uses of ocean waters near the ODMDS.

d. MPRSA Criteria

    In evaluating the ODMDS, the EPA assessed the site according to the
criteria of the MPRSA, with emphasis on the general and specific
regulatory criteria of 40 CFR part 228, to determine whether the site
designation satisfies those criteria. The EPA's EA provides an
extensive evaluation of the criteria and other related factors for the
modification of the ODMDS.
General Criteria (40 CFR 228.5)
    (a) Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or

shellfisheries, and regions of heavy commercial or recreational
navigation (40 CFR 228.5(a)).
    Historically, an interim site located approximately 1.6 nautical
miles from shore was used for ocean disposal of dredged material from
Port Everglades Harbor but was discontinued in the 1980s due to the
significant potential for adverse impacts from sediments to nearby
coral reef resources. EPA designated the existing Port Everglades
Harbor ODMDS in 2005 to fulfill the need for an EPA designated ODMDS
near Port Everglades. The evaluation for the 2005 designation included
considerations of potential interference with other activities in the
marine environment including avoiding areas of existing critical
fisheries or shellfisheries, and regions of heavy commercial or
recreational navigation. EPA re-considered the evaluations from 2010
through to the present time throughout the NEPA process.
    (b) Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
    The ODMDS area will be used only for disposal of dredged material
found to be suitable under the Ocean Dumping Regulations at 40 CFR
parts 220 through 228. Based on the USACE and EPA sediment testing and
evaluation procedures, disposal of dredged maintenance material and
proposed new work material is not expected to have any long-term impact
on water quality. The Port Everglades ODMDS is located sufficiently far
from shore and fisheries resources to allow temporary water quality
disturbances caused by disposal of dredged material to be reduced to
ambient conditions before reaching any environmentally sensitive areas.
    (c) The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
    The location, size, and configuration of the ODMDS should provide
sufficient long-term disposal capacity expected for anticipated
dredging projects, while also permitting effective site management,
site monitoring, and limiting environmental impacts to the surrounding
area to the greatest extent practicable.
    Based on projected new work and maintenance dredging, and permitted
dredged material disposal needs, EPA and the USACE estimated that the
ODMDS should be approximately 3.21 nmi\2\ in size to meet the
anticipated long-term disposal needs of the nearby area. Expanding the
ODMDS to 3.21 nmi\2\ provides an estimated capacity of approximately
6.7 million cubic yards, which is sufficient to manage future unknown
disposal operations from public and private entities and provide
protection of the marine environment at the ODMDS.
    When determining the size of the site, EPA considered the need to
implement effective monitoring and surveillance programs to ensure that
the environment of the site could be protected, and that navigational
safety would not be compromised by the mounding of dredged material.
EPA and the USACE have developed a SMMP for the site that, when
implemented, will be used to determine if disposal at the site is
significantly affecting the environment within the site or adjacent
areas. At a minimum, the monitoring program will consist of bathymetric
surveys, sediment grain size analysis, chemical analysis of
constituents of concern in the sediments, and an assessment of the
benthic community structure.
    (d) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
    The Port Everglades ODMDS is beyond the edge of the continental
shelf.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and
Distance from Coast (40 CFR 228.6(a)(1)).
    The ODMDS is on the Florida Continental Slope, 3.3 nautical miles
offshore of Fort Lauderdale, Florida. Water depths range from -179 to -
232 meters (-587 to -761 feet), with an average depth of 207 meters (-
678 feet). Sediments consist of sand with various mixtures of sand and
silts with scattered rubble hardbottom. The EA contains a map of the
ODMDS. The ODMDS remains fully off the continental shelf at a distance
that is not expected to allow sediments to travel to nearby shore-
associated coral reef habitat.
    (2) Location in Relation to Breeding, Spawning, Nursery, Feeding,
or Passage Areas of Living Resources in Adult or Juvenile Phases (40
CFR 228.6(a)(2)).
    The ODMDS location was selected to avoid the presence of any
exclusive breeding, spawning, nursery, feeding, or passage areas for
adult or juvenile phases of living resources.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3)).
    The center of the ODMDS is several miles from any beaches or
amenity areas. No significant impacts to beaches or amenity areas
associated with the Port Everglades ODMDS have been detected, and the
expansion is not expected to affect that conclusion. The U.S. Navy
maintains facilities south of the ODMDS, and EPA and the USACE
consulted the Navy to verify that no impediments will exist with the
expanded ODMDS.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and
Proposed Methods of Release, including Methods of Packing the Waste, if
any (40 CFR 228.6(a)(4)).
    Only suitable dredged material that meets the Ocean Dumping
Criteria in 40 CFR parts 227 and 228 will be disposed in the ODMDS and
only pursuant to a duly issued permit or authorization (e.g., contract
specifications) for a Federal project with concurrence by EPA. Dredged
materials dumped in this area will be primarily sand and rock with some
fines that originate from the Port Everglades Harbor. Average yearly
disposal of dredged maintenance material into the ODMDS is expected to
be approximately 30,000 cubic yards and variable volumes of new work
dredged material up to 6.7 million cubic yards. None of the material is
packaged in any manner.
    Under section 103 of the MPRSA, the USACE is the Federal agency
that initially determines whether to issue a permit authorizing the
ocean disposal of dredged materials. In the case of Federal navigation
projects involving ocean disposal of dredged materials, in lieu of the
permit procedure, the USACE authorizes projects based upon application
of the same criteria, and other factors to be evaluated, the same
procedures, and the same requirements that apply to the issuance of
permits. The USACE applies the EPA's ocean dumping criteria when
evaluating permit requests for (and implementing Federal projects
involving) the transportation of dredged material for the purpose of
dumping it into ocean waters. MPRSA permits and Federal projects
involving ocean dumping of dredged material are subject to EPA's review
and concurrence. EPA may concur, with or without conditions, or

decline to concur on the request for concurrence on the suitability of
dredged material for disposal in the ODMDS. If EPA concurs with
conditions, the final permit or project authorization (e.g., contract
specifications) must include those conditions. If EPA declines to
concur (non-concurs) on an ocean dumping permit for dredged material,
the USACE cannot issue the permit or authorize ocean dumping for the
Federal project.
    (5) Feasibility of Surveillance and Monitoring (40 CFR
228.6(a)(5)).
    EPA expects monitoring and surveillance at the ODMDS to be feasible
and readily performed from ocean or regional class research vessels.
Monitoring and surveillance are addressed in the SMMP. The area of the
ODMDS has been surveyed and sampled in 2004, 2007 and 2014. EPA will
monitor the site for physical, biological, and chemical attributes as
well as for potential impacts. Bathymetric surveys will be conducted
routinely, and benthic infauna and epibenthic organisms will be
monitored, as described in the SMMP for the site.
    (6) Dispersal, Horizontal Transport and Vertical Mixing
Characteristics of the Area, including Prevailing Current Direction and
Velocity, if any (40 CFR 228.6(a)(6)).
    Current velocities vary throughout the water column and are subject
to wind and the Florida current-based circulations which are generally
northerly with eddies occurring that drive currents south. Currents
measured at nearby sites are predominantly to the north or south on the
order of 1-4 knots (50-200 centimeters per second).
    (7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (including Cumulative Effects) (40 CFR
228.6(a)(7)).
    Historic disposal of dredged material in the existing Port
Everglades ODMDS has resulted in temporary increases in suspended
sediment concentrations during disposal operations, burial of benthic
organisms within the site, and slight changes in the abundance and
composition of benthic assemblages. Short-term, long-term, and
cumulative effects of dredged material disposal in the ODMDS would be
similar to those for the previously designated site and are expected to
be temporary and return to baseline over time.
    (8) Interference with Shipping, Fishing, Recreation, Mineral
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR
228.6(a)(8)).
    The transport of dredged material to the ODMDS will cause minor,
short-term interferences with commercial and recreational boat traffic.
during normal disposal operations. EPA has not identified an area of
special scientific importance at or near the site. There are no
aquaculture areas near the site. There may be recreational fishing in
the area. The likelihood of direct interference with these activities,
however, is low. The U.S. Navy, Fort Lauderdale Branch, Naval Surface
Warfare Center range is located south of the ODMDS and the expansion of
the ODMDS will not impair U.S. Navy operations in the area. The SMMP
for the ODMDS contains provisions for corrective measures if potential
adverse impacts to potential hardbottom habitat related to dredged
material disposal are identified.
    (9) The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or Trend Assessment of Baseline Surveys
(40 CFR 228.6(a)(9)).
    Water quality at the site is typical of the Florida coast. Water
and sediment quality analyses conducted in the vicinity of the ODMDS
and experience with historic disposal at the existing Port Everglades
ODMDS have not identified any adverse water quality impacts from ocean
disposal of dredged material. The site supports benthic and epibenthic
fauna characteristic of the region.
    (10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the ODMDS. Disposal of dredged material, as well as
monitoring, has been ongoing for the past 14 years. Nuisance species
have not been found. The dredged material to be disposed at the ODMDS
is expected to be from similar locations to those dredged previously;
therefore, it expected that any benthic organisms transported to the
site would be relatively similar in nature to those already present.
    (11) Existence at or in Close Proximity to the Site of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11)).
    EPA conducted a survey of this site in 2013 to identify areas of
potential hardbottom resources as well as any historical artifacts. The
survey revealed the presence of only two anomalies that, when
evaluated, were not indicative of potential historical or natural
features. Probable wreckage from one modern sailing vessel was
identified in the northeast corner of the site. Scattered rubble
covering potential hardbottom habitat was identified scattered within
the expanded footprint.
    The SMMP for the ODMDS contains measures to monitor potential
identified hardbottom resources.

III. Environmental Statutory Review

a. National Environmental Policy Act

    EPA's primary voluntary NEPA document for expanding the existing
Port Everglades ODMDS is the EA, prepared by EPA in cooperation with
the USACE and issued for public review and comment as draft in January
2020. Anyone desiring a copy of the EA may access it through the docket
for this action (Docket ID No. EPA-R04-OW-2020-0056) or obtain a copy
from the address given above. The draft EA issued in March 2020 amends
the draft EA that was previously published for public review and
comment in August 2013. Comments received on the March draft EA are
provided in the Response to Comments document appended to the docket.
The EA provides the threshold environmental review for modification of
the ODMDS.
    The action discussed in the EA is the designation of an ODMDS
offshore Port Everglades, Florida. The purpose of the action is to
provide an environmentally acceptable option for the ocean disposal of
dredged material. The reason for the ODMDS expansion is based primarily
on demonstrated lack of capacity for ocean disposal of dredged material
from the Port Everglades Harbor area including the upcoming Federal
Navigation Project and any additional port projects into the future.
The actual need for ocean disposal for particular, specific future
projects, and the suitability of the material for ocean disposal, will
be determined on a case-by-case basis as part of the USACE process for
reviewing ocean disposal actions and a public review process for its
own actions to ocean dump dredged material from Federal Projects.
Subsequent proceedings to develop permits and terms of the
authorization for Federal projects will include evaluation of disposal
alternatives; the existence of a designated site merely provides an
option for disposition of suitable material.
    EPA's EA discusses the reasons for expanding the ODMDS and examines
ocean disposal site alternatives. The reasons to expand the existing
Port Everglades ODMDS are based on: Future capacity modeling; potential
movement of fine sediments estimated dredging volumes for proposed
projects; and limited capacity of upland disposal facilities in the
area. EPA considered other configurations for the expanded site but the
other options were discarded due to potential for adverse

impacts to protected coral resources. The following three ocean
disposal alternatives were considered in the EA.
No Action Alternative
    EPA identified the No Action Alternative as not modifying the size
of the existing Port Everglades ODMDS. Implementation of this
alternative would not have addressed the inadequate capacity at the
existing ocean dump site to accommodate future ocean disposal of
dredging projections. As a result, the No Action Alternative does not
meet the action's purpose and need. However, EPA developed and
evaluated the No Action Alternative as a basis to compare the effects
of the other alternatives considered.
    Alternative 1: Modification of the existing Port Everglades ODMDS
to encompass a 3.21 nmi\2\ area in a north-south orientation (Preferred
Alternative).
    Modification of the existing Port Everglades ODMDS in a north-south
orientation to encompass a 3.21 nmi\2\ area as described above is the
environmentally and operationally preferred alternative and considered
the most viable option. The existing Port Everglades ODMDS is
relatively small and has a limited capacity. Modifying the existing
Port Everglades ODMDS to increase capacity would accommodate the
anticipated volumes of material projected for possible ocean disposal
associated with: The congressionally authorized widening and deepening
of the Port Everglades Harbor Federal navigation channel;
congressionally authorized maintenance dredging; the Broward County
sand bypass and navigation projects; and potential future private
interests. It is the most feasible option based on containing dredged
material from disposal operations while potentially affecting the least
potential hardbottom habitat. A detailed justification for this
preferred alternative is included in Section 2 in the EA.
    Alternative 2: Modification of the existing Port Everglades ODMDS
to encompass a 2.89 nmi\2\ area in an east-west orientation.
    In order to inform viable options for expanding the existing site,
EPA evaluated the data and information included in the September 2013
Evaluation of Dredged Material Behavior at the Port Everglades Harbor
Federal Project Ocean Dredged Material Disposal Site. EPA specifically
considered the option of expanding the site in an east-west
orientation. Although designating an expanded ODMDS in an east-west
orientation would provide adequate site capacity, an east-west
orientation had a greater level of risk for adverse impact to
hardbottom habitat. As described in the EA, a site more adequately
protective of potential hardbottom areas was selected as the preferred
alternative with a north-south orientation (Alternative 1).

b. Magnuson-Stevens Act

    The USACE, in conjunction with EPA, submitted an essential fish
habitat (EFH) assessment to the National Marine Fisheries Service
(NMFS), pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1855(b)(2). The
USACE determined that the expansion of the existing Port Everglades
ODMDS will not significantly affect managed species or EFH.
    On March 13, 2020, EPA issued a letter to NMFS that described the
EPA's plans to conduct a Remotely Operated Vehicle (ROV) survey to
supplement the available data to further characterize potential
hardbottom geomorphology and biological community in the expanded
footprint of the Port Everglades ODMDS. On March 19, 2020, NMFS
responded by letter requesting that in the event results from the ROV
survey indicate that significant hardbottom resources occur in the
expanded ODMDS and use of the ODMDS will adversely affect those
resources, EPA should re-initiate consultation. EPA is committed to
continue working in close coordination with NMFS and will evaluate the
ROV survey results when they become available. If significant
hardbottom resources occur in the expanded ODMDS and the use of the
ODMDS will adversely affect those resources, EPA will re-initiate
consultation with NMFS pursuant to the Magnuson-Stephens Act.

c. Coastal Zone Management Act

    EPA evaluated site designations for consistency with the
enforceable policies of Florida's approved coastal zone management
program. On behalf of EPA, the USACE Jacksonville District documented
that the site expansion is consistent with the Florida Coastal
Management Program to the maximum extent practicable. The Florida
Department of Environmental Protection issued Coastal Zone Consistency
for the Port Everglades ODMDS on April 29, 2011. EPA further
coordinated with Florida to determine whether any additional
information has become available that may warrant changes to the
State's 2011 determination. Florida responded, on April 17, 2020, that
its position has not changed and that the action remains consistent to
the maximum extent practicable with the enforceable policies of the
State's approved coastal program.

d. Endangered Species Act

    The Endangered Species Act, as amended, 16 U.S.C. 1531 to 1544,
requires Federal agencies to consult with NMFS and the U.S. Fish and
Wildlife Service to ensure that any action authorized, funded, or
carried out by the Federal agency is not likely to jeopardize the
continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of any critical
habitat. EPA has concluded consultation with NMFS, which provided a
Biological Opinion for the South Atlantic District of the U.S. Army
Corps of Engineers on March 7, 2014, applicable for the proposed
expansion of the ODMDS. NMFS's Biological Opinion indicted that the
expanded ODMDS will have no effect on federally-listed species or
critical habitat. During a teleconference between EPA and NMFS on
August 18, 2020, and in email correspondence issued on April 21, 2021,
NMFS verified there are no changes to its Biological Opinion.
    The expansion of the Port Everglades ODMDS will have no effect on
federally-listed terrestrial or freshwater species under the
jurisdiction of the U.S. Fish and Wildlife Service.

e. National Historic Preservation Act

    The National Historic Preservation Act (NHPA), 16 U.S.C. 470 to
470a-2, requires Federal agencies to consider the effect of their
actions on districts, sites, buildings, structures, or objects,
included in, or eligible for inclusion in the National Register of
Historic Places (NRHP). The depths of the ODMDS (greater than 700 feet
depth) exclude potential habitation or resources related to human
settlements. In a letter dated April 9, 2020, the Florida State
Historic Preservation Office stated that no historic properties would
be affected by the expansion of the ODMDS.

IV. Statutory and Executive Order Reviews

    This rule expands the area of the Port Everglades ODMDS pursuant to
Section 102 of the MPRSA. This action complies with applicable
executive orders and statutory provisions as follows:

a. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not

subject to review under Executive Orders 12866 and 13563 (76 FR 3821,
January 21, 2011).

b. Executive Order 13089: Coral Reef Protection

    This action considers Executive Order 13089 on Coral Reef
Protection ``to preserve and protect the biodiversity, health,
heritage, and social and economic value of U.S. coral reef ecosystems
and the marine environment.'' The SMMP is designed to reduce potential
impacts from sediments on corals from vessels during transit to the
ODMDS.

c. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This site designation, does not
require persons to obtain, maintain, retain, report, or publicly
disclose information to or for a Federal agency.

d. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires Federal agencies
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 rule on small entities, small entity
is defined as: (1) A small business defined by the Small Business
Administration's size 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; and (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
rule, EPA certifies that this action will not have a significant
economic impact on a substantial number of small entities.

e. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C.
1531 to 1538, for State, local, or tribal governments or the private
sector. This action imposes no new enforceable duty on any State, local
or tribal governments or the private sector. Therefore, this action is
not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of
the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small government entities. Those
entities are already subject to existing permitting requirements for
the disposal of dredged material in ocean waters.

f. Executive Order 13132: Federalism

    This action does not have federalism implications. It does 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 various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this action. In the spirit of Executive Order 13132, and consistent
with EPA policy to promote communications between EPA and State and
local governments, EPA specifically solicited comments on this action
from State and local officials.

g. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 because the modification of the existing Port
Everglades ODMDS will not have a direct effect on Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. The depths of the ODMDS (greater than 700
feet depth) exclude potential habitation or resources related to human
settlements. In addition, EPA sent notification of the Seminole Tribe
of Florida and the Miccosukee Tribe of Indians of Florida regarding the
proposed action to modify the Port Everglades ODMDS and received no
comments. Thus, Executive Order 13175 does not apply to this action.

h. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks, such that the
analysis required under Section 5-501 of the Executive order has the
potential to influence the regulation. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.

i. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355) because it is not a ``significant
regulatory action'' as defined under Executive Order 12866.

j. National Technology Transfer and Advancement Act

    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),
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 bodies. The NTTAA directs EPA to provide Congress,
through Office of Management and Budget, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards. This action includes environmental monitoring and
measurement as described in EPA's SMMP. EPA will not require the use of
specific, prescribed analytic methods for monitoring and managing the
ODMDS. The Agency plans to allow the use of any method, whether it
constitutes a voluntary consensus standard or not, that meets the
monitoring and measurement criteria discussed in the SMMP.

k. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629) 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 determined that this 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. EPA has assessed the overall
protectiveness of expanding the Port Everglades ODMDS against the
criteria established pursuant to the MPRSA to ensure that any adverse
impact to the environment will be mitigated to the greatest extent
practicable.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research, and Sanctuaries Act, as
amended, 33 U.S.C. 1412 and 1418.

    Dated: July 13, 2021.
John Blevins,
Acting Regional Administrator, EPA Region 4.

    For the reasons set out in the preamble, EPA amends chapter I,
title 40 of the Code of Federal Regulations as follows:

PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING

0
1. The authority citation for part 228 continues to read as follows:

    Authority:  33 U.S.C. 1412 and 1418.

0
2. Section 228.15 is amended by revising paragraphs (h)(22)(i) through
(iii) and (vi) to read as follows:

Sec.  228.15   Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (22) * * *
    (i) Location: Corner Coordinates (NAD 1983) 26[deg]06.500',
80[deg]01.000'; 26[deg]06.500', 80[deg]02.578'; 26[deg]08.750',
80[deg]02.578'; 26[deg]08.750', 80[deg]01.000'.
    (ii) Size: Approximately 3.2 square nautical miles in size.
    (iii) Depth: Ranges from approximately 587 to 761 feet (179 to 232
meters).
* * * * *
    (vi) Restrictions:
    (A) Disposal shall be limited to dredged material from the Port
Everglades, Florida, area;
    (B) Disposal shall be limited to dredged material determined to be
suitable for ocean disposal according to 40 CFR parts 227 and 228; and
    (C) Transportation and disposal shall comply with conditions and
monitoring requirements set forth in the most recent approved Site
Management and Monitoring Plan and conditions and monitoring
requirements incorporated into the permit or Federal project
authorization.
* * * * *
[FR Doc. 2021-15529 Filed 7-21-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Notices]
[Pages 41845-41847]
[FR Doc No: 2012-17274]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67389; File No. SR-NASDAQ-2012-81]

 Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Delay the Implementation Date for Non-Display of Primary Pegged Orders
With an Offset Amount

July 10, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'')\1\, and Rule 19b-4\2\ thereunder, notice is hereby given
that, on June 28, 2012, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the

Securities and Exchange Commission (``SEC'' or ``Commission'') the
proposed rule change as described in Items I, II, and III below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes a rule change to delay the implementation
date for its rule change that provides for non-display of Primary
Pegged Orders with an offset amount. The text of the proposed rule
change is available at http://nasdaq.cchwallstreet.com, at the
Exchange's principal office, and at the Commission's Public Reference
Room.

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

    In its filing with the Commission, the Exchange 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
    NASDAQ recently submitted a proposed rule change to provide that
Primary Pegged Orders with an offset amount will not be displayed,\3\ a
change that will improve system and inter-market price stability. In
order to implement this change contemporaneous with the proposed
adoption of a new Market Maker Peg order type,\4\ NASDAQ is delaying
the implementation date of this rule change until the third quarter of
2012. The new Market Maker Peg order with custom offset will allow
market makers currently using the primary peg with offset for
attributable orders to smoothly migrate to use of that order type. Some
market makers use the primary peg with offset for compliance purposes,
so tying the change to the MMPO release allows for them to continue to
have a pegging option to meet this requirement. While the exact
implementation date is uncertain, NASDAQ will announce the exact date
through a publicly disseminated alert.
---------------------------------------------------------------------------

    \3\ Securities Exchange Act Release No. 66699 (March 31, 2012),
77 FR 20658 (April 5 15, 2012) [sic] (SR-NASDAQ-2012-041).
    \4\ Securities Exchange Act Release No. 67203 (June 14, 2012) 77
FR 37086 (June 20, 2012) (SR-NASDAQ-2012-066).
---------------------------------------------------------------------------

2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\5\ in general, and with Section
6(b)(5) of the Act,\6\ in particular, in that the proposal is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in regulating, clearing, settling,
processing information with respect to, and facilitating transactions
in securities, 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. Specifically, NASDAQ
believes that delaying the implementation date of non-display of
primary pegged orders with an offset amount until adoption and
implementation of the proposed new Market Maker pegged order will allow
market participants to adjust their systems for both changes at the
same time, providing efficiencies that will benefit investors and the
public interest and encourage more efficient order entry practices by
all market participants.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. NASDAQ believes
that the proposed delay in the implementation of the change will not
have any effect on competition.

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(i) of the Act.\7\ At any time within 60 days of the filing
of the proposed rule change, the Commission summarily may temporarily
suspend 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. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A)(i).
---------------------------------------------------------------------------

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 email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2012-81 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2012-81. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet 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 Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of 10
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-NASDAQ-2012-81 and should be submitted
on or before August 6, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
Kevin M. O'Neill,
Deputy Secretary.
---------------------------------------------------------------------------

    \8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

[FR Doc. 2012-17274 Filed 7-13-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 193 (Wednesday, October 5, 2011)]
[Notices]
[Pages 61690-61692]
[FR Doc No: 2011-25694]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2003-0200; FRL-8888-4]

Fenamiphos; Amendment To Use Deletion and Product Cancellation
Order

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: This notice announces EPA's amendment to the order for the
cancellation of products, voluntarily requested by the registrant and
accepted by the Agency, containing the pesticide fenamiphos, pursuant
to section 6(f)(1) of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), as amended. This amendment follows a July 13,
2011 Federal Register Notice of Receipt of Request to Amend Use
Deletion and Product Cancellation Order. In the July 13, 2011 notice,
EPA indicated that it would issue an order implementing the amendment,
after the 30-day comment period. One comment was received during the
30-day comment period. After consideration, the Agency has granted the
requested amendment. Accordingly, the Agency will extend the deadline
for persons other than the registrant to sell and distribute Nemacur 3
Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) for
1 year, until October 5, 2012. Additionally, the Agency will prohibit
use of existing stocks of all fenamiphos products after October 6,
2014.

DATES: This amendment is effective October 5, 2011.

FOR FURTHER INFORMATION CONTACT: Eric Miederhoff, Pesticide Re-
evaluation Division (7508P), Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; fax
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, and may be of
interest to a wide range of stakeholders including environmental, human
health, 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 person listed under FOR
FURTHER INFORMATION CONTACT.

B. How can I get copies of this document and other related information?

    EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2003-0200. 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
Office of Pesticide Programs (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<PHONE_NUMBER>.

II. What action is the agency taking?

    This notice announces the amendment of the December 10, 2003 use
deletion and product cancellation order of fenamiphos products
registered under section 3 of FIFRA, as amended on June 11, 2008 and
December 10, 2008. The only registration affected by the extension of
the sale and distribution date is Nemacur 3 Emulsifiable Systemic
Insecticide-Nematicide, EPA Registration Number 264-731. The
prohibition on the use of fenamiphos products 3 years after publication
of the amended order affects all fenamiphos product registrations.
    On December 10, 2003, EPA published a Use Deletion and Product
Cancellation Order (FRL-7332-5) (68 FR 68901). The order prohibited,
among other things, the manufacture and distribution of fenamiphos by
Bayer Corporation, the sole technical registrant, after May 31, 2007,
the effective cancellation date for the fenamiphos product
registrations. The deadline established for Bayer Corporation followed
a production cap on the manufacture of fenamiphos, which limited
fenamiphos production to 500,000 pounds of active ingredient for the
year ending May 31, 2003, and reduced production by 20% each subsequent
year during the 5-year phase-out period. The order also prohibited the
sale and distribution of fenamiphos by persons other than the
registrant after May 31, 2008. These provisions were intended to
provide a reasonable amount of time for the material to move through
the channels of trade following the cessation of sale and distribution
of fenamiphos products by the registrant on May 31, 2007.
    In a June 11, 2008 Federal Register Amendment to Use Deletion and
Product Cancellation Order (FRL-8368-2) (73 FR 33082), the Agency
extended the May 31, 2008 deadline on the sale and distribution by
persons other than the registrant through November 30, 2008. This
action was taken in response to a request from the sole fenamiphos
technical registrant, Bayer Environmental Science, to extend the
deadline to allow distributors to sell existing stockpiles of Nemacur
10% Turf and Ornamental Nematicide (EPA Reg. No. 432-1291) and Nemacur
3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731)
to end users.
    In a December 10, 2008 (FRL-8389-8) (73 FR 75097) Federal Register
Amendment to Use Deletion and Product Cancellation Order, the Agency
further extended the November 30, 2008 deadline for the sale and
distribution of Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide
(EPA Reg. No. 264-731) through March 31, 2009. This action was taken in
response to a request from an end user, Maui Pineapple, to extend the
deadline for sale and distribution of Nemacur 3 Emulsifiable Systemic
Insecticide-Nematicide (EPA Reg. No. 264-731) from November 30, 2008 to
March 31, 2009.
    On August 20, 2010 the Agency received another request from Maui
Pineapple to extend the deadline for sale and distribution of Nemacur 3
Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) to
allow a transfer of its remaining stocks of Nemacur 3 to other end
users.
    The original May 31, 2008 deadline for fenamiphos was established
to provide a reasonable amount of time for the material to move through
the channels of trade following the cessation of sale and distribution
of fenamiphos products by the registrant, Bayer Environmental Science,
on May 31, 2007. Extending the deadline for distributors to sell and
distribute Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide does
not conflict with the Agency's application of the guidelines outlined
in PR Notice 97-7, nor does it introduce more fenamiphos into the
pesticide use cycle than had been stipulated by the terms of the 5-year
phase-out. The extension allows for a redistribution of existing
material already in the hands of end users and no new fenamiphos
products will enter the marketplace. The Agency is extending the
deadline for persons other than the registrant to sell and distribute
Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No.
264-731) for 1 year from the date of publication of this amended order
until October 5, 2012.
    The Agency is also prohibiting use of all fenamiphos products in
the United States 3 years from the date of publication of this amended
order in the Federal Register. Accordingly, all use of fenamiphos
products in the United States will be prohibited after October 6, 2014.
Previously, the Agency had allowed end users with existing stocks of
products containing fenamiphos to continue to use these products until
their stocks were exhausted, provided that the use complied with
previously EPA-approved product label requirements for the respective
products. Considering the initial Product Cancellation Order for
fenamiphos was issued in 2003, 11 years will have elapsed since the
initial cancellation order was issued, and approximately 7 years will
have elapsed from the effective cancellation of the fenamiphos
products. When the Agency specified in the initial Product Cancellation
Order that users may use existing stocks until exhausted, it did not
anticipate that fenamiphos products would not move through the channels
of trade and be depleted by end users in a timely manner.
    Moreover, all pesticides sold or distributed in the United States
generally must be registered by the Environmental Protection Agency
(EPA or the Agency), based on scientific data showing that they will
not cause unreasonable risks to human health or the environment when
used as directed on product labeling. Due to the fact that fenamiphos
product registrations were cancelled as part of the voluntary phase-
out, the Agency has determined that the registration review program,
the periodic evaluation of pesticide safety, is not applicable to
fenamiphos. The registration review of fenamiphos would have begun in
2008 if fenamiphos had had active product registrations at that time.
The Agency is concerned that the use of existing stocks of fenamiphos
products has continued for an extended period since the last
comprehensive scientific risks assessments of its domestic use, which
were completed for the 2002 Fenamiphos Reregistration Eligibility
Decision. Therefore, the Agency is prohibiting all use of pesticide
products containing fenamiphos after October 6, 2014.

III. Summary of Public Comments Received and Agency Response to
Comments

    During the public comment period provided, EPA received one comment
in response to the July 13, 2011, Federal Register notice announcing
the Agency's proposal to amend the fenamiphos use deletion and product
cancellation order, (76 FR 41248) (FRL-8879-5). The comment, from the
Arizona Department of Agriculture, supported the Agency's proposal to
allow sale and distribution for an additional year. However, the
comment also stated that it would be preferable to continue to allow
use of fenamiphos products already in the hands of users until
exhaustion. The comment describes the disposal of unusable pesticide
products as expensive and time consuming. The Agency acknowledges the
difficulties inherent in the safe disposal of pesticide products.
However, as stated in Unit III, the Agency has concerns that, if the
previous existing stocks provision allowing use until exhaustion were
not amended, the use of fenamiphos would continue for an extended
period of time beyond the most recent comprehensive scientific risk
assessments of its domestic use. After consideration, the Agency has
concluded that, with the additional 3 years provided by this order, an
adequate period of time has been provided for existing stocks of
fenamiphos products to have been used.

IV. Amended Order

    Pursuant to FIFRA section 6(a), EPA is amending the December 10,
2008 order to allow persons other than the registrant to sell and
distribute the fenamiphos product, Nemacur 3 Emulsifiable Systemic
Insecticide-Nematicide (EPA Registration Number 264-731), for 1 year,
until October 5, 2012. Accordingly, the Agency orders that the sale and
distribution of products containing fenamiphos is prohibited, except
for proper disposal or export pursuant to section 17 of FIFRA,
provided, however, that persons other than the registrant are permitted
to sell and distribute existing stocks of Nemacur 3 Emulsifiable
Systemic Insecticide-Nematicide (EPA Registration Number 264-731) for 1
year from the publication of the amended order. The Agency further
orders that end users with existing stocks of any products containing
fenamiphos may continue to use these products for 3 years, until
October 6, 2014, provided that the use complies with EPA-approved
product label requirements for the respective products. After October
6, 2014, all use of products containing fenamiphos is prohibited.

V. What is the agency's authority for taking this action?

    Section 6(a)(1) of FIFRA provides that the Administrator may permit
the continued sale and use of existing stocks of a pesticide whose
registration is suspended or canceled under this section, or section 3
or 4 of FIFRA, to such extent, under such conditions, and for such uses
as the Administrator determines that such sale or use is not
inconsistent with the purposes of this Act.

List of Subjects

    Environmental protection, Pesticides and pests.

    Dated: September 27, 2011.
Richard P. Keigwin, Jr.,
Director, Pesticide Re-evaluation Division, Office of Pesticide
Programs.
[FR Doc. 2011-25694 Filed 10-4-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Rules and Regulations]
[Pages 62444-62446]
[FR Doc No: 2012-25211]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0913]
RIN 1625-AA00

Safety Zone; 2012 Head of the South Regatta, Savannah River,
Augusta, GA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Savannah River in Augusta, Georgia, during the 2012 Head of the South
Regatta, which will consist of a series of rowing races. The 2012 Head
of the South Regatta is scheduled to take place on Friday, November 9,
2012 and Saturday, November 10, 2012. The temporary safety zone is
necessary for the safety of race participants, participant vessels,
spectators, and the general public during the event. Persons and
vessels are prohibited from entering, transiting through, anchoring in,
or remaining within the safety zone unless authorized by the Captain of
the Port Savannah or a designated representative.

DATES: This rule is effective from 6 a.m. on November 9, 2012 through 6
p.m. on November 10, 2012. This rule will be enforced daily from 6 a.m.
to 6 p.m. on November 9, 2012 and November 10, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2012-0913]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Marine Science Technician First Class William N.
Franklin, Marine Safety Unit Savannah, Coast Guard; telephone 912-652-
4353, email<EMAIL_ADDRESS>If you have questions on
viewing or submitting material to the docket, call Renee V. Wright,
Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this final rule without prior notice and
opportunity to comment pursuant to authority under section 4(a) of the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because the Coast Guard did not receive
confirmation of the details of this event until September 11, 2012. As
a result, the Coast Guard did not have sufficient time to publish a
NPRM and to receive public comments prior to the event. Any delay in
the effective date of this rule would be contrary to the public
interest because immediate action is needed to minimize potential
danger to the race participants, participant vessels, spectators, and
the general public.

B. Basis and Purpose

    The legal basis for the rule is the Coast Guard's authority to
establish regulated navigation areas and other limited access areas: 33
U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33
CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064;
Department of Homeland Security Delegation No. 0170.1.
    The purpose of the rule is to protect race participants,
participant vessels, spectators, and the general public from the
hazards associated with the event.

C. Discussion of the Final Rule

    On November 9, 2012, Augusta Rowing Club is hosting the 2012 Head
of the South Regatta, a series of rowing races on the Savannah River in
Augusta, Georgia. The races will start in the vicinity of Hammond Ferry
Landing and finish in the vicinity of the Highway 520 Bridge.
    The safety zone encompasses part of the Savannah River in Augusta,
Georgia, where the event will be held. The safety zone will be enforced
daily from 6 a.m. until 6 p.m. on November 9, 2012 and November 10,
2012. Persons and vessels are prohibited from entering, transiting
through, anchoring in, or remaining within the safety zone unless
authorized by the Captain of the Port Savannah or a designated
representative.
    Persons and vessels desiring to enter, transit through, anchor in,
or remain within the safety zone may contact the Captain of the Port
Savannah by telephone at<PHONE_NUMBER>, or a designated representative
via VHF radio on channel 16, to request authorization. If authorization
to enter, transit through, anchor in, or remain within the safety zone
is granted by the Captain of the Port Savannah or a designated
representative, all persons and vessels receiving such authorization
must comply with the instructions of the Captain of the Port Savannah
or a designated representative. The Coast Guard will provide notice of
the safety zone by Local Notice to Mariners, Broadcast Notice to
Mariners, and on-scene designated representatives.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders.
    The economic impact of this rule is not significant for the
following reasons: (1) The safety zone will be enforced for a maximum
of twenty four hours; (2) although persons and vessels will not be able
to enter or remain in the safety zone without authorization from the
Captain of the Port Savannah or a designated representative, they may
operate in the surrounding area during the enforcement periods; (3)
persons and vessels may still enter or remain in this safety zone if
authorized by the Captain of the Port Savannah or a designated
representative; and (4) the Coast Guard will provide advance
notification of the safety zone to the local maritime community by
Broadcast Notice to Mariners.

2. Impact on Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. This rule may affect the following entities, some of which
may be small entities: The owners or operators of vessels intending to
enter, transit through, anchor in, or remain within that portion of the
Savannah River encompassed within the safety zone from 6 a.m. until 6
p.m. on November 9, 2012 and November 10, 2012. For the reasons
discussed in the Regulatory Planning and Review section above, this
rule will not have a significant economic impact on a substantial
number of small entities.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of

compliance on them. We have analyzed this rule under that Order and
have determined that it does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of
the Instruction. This rule involves establishing a temporary safety
zone that will be enforced for a total of 24 hours. An environmental
analysis checklist and a categorical exclusion determination are
available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1.

0
2. Add temporary Sec.  165.T07-0913 to read as follows:

Sec.  165.T07-0913  Safety Zone; 2012 Head of the South Regatta,
Savannah River, Augusta, GA.

    (a) Regulated area. The following regulated area is a safety zone.
All waters of the Savannah River in Augusta, Georgia encompassed within
the following points: starting at Point 1 in position 33[deg]29'39.64''
N, 81[deg]59'25.40'' W; thence southeast to Point 2 in position
33[deg]27'43.34'' N, 81[deg]55'30.90'' W; thence southwest to Point 3
in position 33[deg]27'35.80'' N, 81[deg]55'33.42'' W; thence northwest
to Point 4 in position 33[deg]29'39.72'' N, 81[deg]59'30.48'' W; thence
east back to origin. All coordinates are North American Datum 1983.
    (b) Definition. The term ``designated representative'' means Coast
Guard Patrol Commanders, including Coast Guard coxswains, petty
officers, and other officers operating Coast Guard vessels, and
Federal, state, and local officers designated by or assisting the
Captain of the Port Savannah in the enforcement of the regulated area.
    (c) Regulations. (1) All persons and vessels are prohibited from
entering, transiting through, anchoring in, or remaining within the
regulated area unless authorized by the Captain of the Port Savannah or
a designated representative.
    (2) Persons and vessels desiring to enter, transit through, anchor
in, or remain within the regulated area may contact the Captain of the
Port Savannah by telephone at<PHONE_NUMBER>, or a designated
representative via VHF radio on channel 16, to request authorization.
If authorization to enter, transit through, anchor in, or remain within
the regulated area is granted by the Captain of the Port Savannah or a
designated representative, all persons and vessels receiving such
authorization must comply with the instructions of the Captain of the
Port Savannah or a designated representative.
    (3) The Coast Guard will provide notice of the regulated area by
Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene
designated representatives.
    (d) Effective date and enforcement periods. This rule is effective
from 6 a.m. on November 9, 2012 through 6 p.m. on November 10, 2012.
This rule will be enforced daily from 6 a.m. to 6 p.m.

    Dated: October 4, 2012.
J.B. Loring,
Commander, U.S. Coast Guard, Captain of the Port Savannah.
[FR Doc. 2012-25211 Filed 10-12-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 76, Number 85 (Tuesday, May 3, 2011)]
[Notices]
[Pages 24954-24956]
[FR Doc No: 2011-10654]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64349; File No. SR-NYSEArca-2011-22]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca
Equities Rule 7.16 (Short Sales) To Modify the Exchange's Procedures
for Early Termination of the Short Sale Price Test Restrictions of Rule
201 of Regulation SHO Based on a Triggering Transaction That Another
Exchange or a Self-Regulatory Organization Has Determined Was a Clearly
Erroneous Execution

April 27, 2011.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'')\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on April 25, 2011, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been substantially prepared by the self-
regulatory organization. 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\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend NYSE Arca Equities Rule 7.16 (Short
Sales) to modify the Exchange's procedures for early termination of the
short sale price test restrictions of Rule 201 of Regulation SHO
(``Rule 201'') \4\ under the Act based on a triggering transaction that
another exchange or a self-regulatory organization (``SRO'') has
determined was a clearly erroneous execution pursuant to the rules of
that exchange or SRO. The text of the proposed rule change is available
at the Exchange, the Commission's Public Reference Room, and http://www.nyse.com.
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    \4\ 17 CFR 242.201.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
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 those 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 parts of such
statements.

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

1. Purpose
    On February 26, 2010, the Commission adopted amendments to Rule
201.\5\ In order to implement the provisions of revised Rule 201, the
Exchange amended NYSE Arca Equities Rule 7.16 (Short Sales) to (1)
Establish procedures for the Exchange, as a listing market, to
determine that the short sale price test restrictions of Rule 201 have
been triggered for a covered security, (2) establish the protocols for
the handling of short sale orders by the Exchange, as a trading center,
in the event the short sale price test restrictions of Rule 201 are
triggered, including establishing what types of short sale orders will
be re-priced to achieve a Permitted Price (as defined and calculated in
NYSE Arca Equities Rule 7.16(f)(v)(C)), in accordance with Rule 201,
during a period when the short sale price test restrictions of Rule 201
are in effect (``Short Sale Period''), (3) establish the Exchange's
procedures regarding the execution and display of permissible orders
during a Short Sale Period, and the execution and display of orders
marked ``short exempt'' during such a period, and (4) provide that,
during a Short Sale Period, Exchange systems will not execute or
display a short sale order with respect to that security at a price
that is less than or equal to the current national best bid, except as
otherwise provided by NYSE Arca Equities Rule 7.16(f) and consistent
with Rule 201.\6\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 61595 (February 26,
2010), 75 FR 11232 (March 10, 2010) (File No. S7-08-09; Amendments
to Regulation SHO) (``Rule 201 Adopting Release''). In the Rule 201
Adopting Release, the Commission also adopted amendments to Rule
200(g) of Regulation SHO to include a ``short exempt'' marking
requirement. 17 CFR 242.200(g).
    \6\ See Securities Exchange Act Release No. 63971 (February 25,
2011), 76 FR 12157 (March 4, 2011) (SR-NYSEArca-2011-05).
---------------------------------------------------------------------------

    Under NYSE Arca Equities Rule 7.16(f)(iii), when the Exchange is
the listing market for a covered security, Exchange systems will
determine whether the short sale price test restrictions of Rule 201
have been triggered (i.e., that a covered security has experienced a
decrease in price of 10% or more from the security's closing price as
of the end of regular trading hours on the prior day) and will notify
the single plan processor responsible for consolidation of information
for the covered security pursuant to Rule 603(b) of Regulation NMS.\7\
Once the short sale price test restrictions of Rule 201 are triggered
by the listing market, those restrictions will remain in effect until
the close of trading on the next trading day.\8\
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    \7\ See 17 CFR 242.201(b)(3); 17 CFR 242.603(b). See also Rule
201(a)(6) of Regulation SHO, which defines the term ``plan
processor'' to have the same meaning as in Rule 600(b)(55) of
Regulation NMS. 17 CFR 242.600(b)(55). The single plan processors
are ``exclusive processors'' as defined under Section 3(a)(22) of
the Act. See 15 U.S.C. 78c(a)(22).
    \8\ The short sale price test restrictions will remain in effect
at all times when quotation information and the national best bid is
collected, processed and disseminated pursuant to a national market
system plan. This may extend beyond regular trading hours. Division
of Trading & Markets: Responses to Frequently Asked Questions
Concerning Rule 201 of Regulation SHO, at Q&A 2.1.
---------------------------------------------------------------------------

    If, however, the Exchange determines that the short sale price test
for a covered security was triggered because of a clearly erroneous
execution on the Exchange,\9\ pursuant to NYSE Arca Equities Rule
7.16(f)(iv)(A), the Exchange may lift the short sale price test
restrictions before the Short Sale Period ends for a security for which
the Exchange is the listing market or, for a security listed on another
market, notify the other market of the Exchange's determination that
the triggering transaction was a clearly erroneous execution.
---------------------------------------------------------------------------

    \9\ Determination of a ``clearly erroneous'' execution will be
made in accordance with NYSE Arca Equities Rule 7.10.
---------------------------------------------------------------------------

    For securities for which the Exchange is the listing market, NYSE
Arca Equities Rule 7.16 currently addresses only clearly erroneous
triggering transactions deemed to be clearly erroneous executions under
the Exchange's rules, and does not address situations where another
exchange or a SRO determines, under its respective rules, that a
triggering transaction was a clearly erroneous execution. To address
this scenario, the Exchange proposes to amend NYSE Arca Equities Rule
7.16(f)(iv)(A) \10\ to provide that the Exchange may also lift the
short sale price test restrictions before the Short Sale Period ends,
for covered securities for which the Exchange is the listing market, if
the Exchange has been informed by another exchange or a SRO that a
transaction in the covered security that occurred at the Trigger Price
\11\ was a clearly erroneous execution, as determined by that exchange
or SRO under its rules.\12\
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    \10\ The Exchange is also proposing two technical amendments to
NYSE Arca Equities Rule 7.16 to correct references to the Exchange
(in subparagraphs (f)(iv)(A) and (f)(iv)(B) of NYSE Arca Equities
Rule 7.16).
    \11\ The term ``Trigger Price'' is used in NYSE Arca Equities
Rule 7.16(f) to refer to a decrease of 10% or more in a security's
price from the security's closing price on the listing market as of
the end of regular trading hours on the prior day. Under NYSE Arca
Equities Rule 7.16(f)(iii), the short sale price test restrictions
of Rule 201 are triggered if a transaction in a covered security
occurs at a Trigger Price.
    \12\ The Exchange will only lift the short sale price test
restrictions before the Short Sale Period ends under these
circumstances when informed by another exchange or a SRO that a
triggering transaction has been determined to be a clearly erroneous
execution under the rules of the exchange or SRO, consistent with
the authority of that exchange or SRO for making such
determinations.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\13\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\14\ in particular, in that it is designed to, among
other things, prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, and, in general, to
protect investors and the public interest. The proposal is designed to
refine the Exchange's written policies and procedures reasonably
designed to prevent the execution or display of a short sale order of a
covered security in violation of the short sale price test restrictions
established in Rule 201. To that end, the proposed rule change expands
the ability of the Exchange, as a listing market, to lift short sale
price test restrictions to include situations where another exchange or
a SRO has determined that a triggering transaction was a clearly
erroneous execution under the rules of that exchange or SRO.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \15\ and Rule 19b-4(f)(6) thereunder.\16\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, 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 and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \16\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \17\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\18\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing.
---------------------------------------------------------------------------

    \17\ 17 CFR 240.19b-4(f)(6).
    \18\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission has considered the Exchange's request to waive the
30-day operative delay, and hereby grants the request. The Commission
believes that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest, as it will permit the
Exchange to lift Rule 201's short sale price test restrictions, in a
covered security for which the Exchange is the listing market, when
such restrictions were triggered by a transaction that another exchange
or a SRO has determined to be a clearly erroneous execution, pursuant
to the rules of that exchange or SRO.\19\ For this reason, the
Commission designates the proposed rule change to be operative upon
filing.
---------------------------------------------------------------------------

    \19\ For the purposes only of waiving the operative delay of
this proposal, the Commission has considered the proposed rule's
impact on efficiency, competition, and capital formation. See 15
U.S.C. 78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend 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-NYSEArca-2011-22 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2011-22. 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 Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549-1090. Copies of the filing will also
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-
NYSEArca-2011-22 and should be submitted on or before May 24, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-10654 Filed 5-2-11; 8:45 am]
BILLING CODE 8011-01-P