[Federal Register: July 11, 2008 (Volume 73, Number 134)]
[Proposed Rules]
[Page 39911-39915]
[DOCID:fr11jy08-13]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2007-1147; FRL-8690-4]

Approval and Promulgation of Implementation Plans; Texas; Control
of Emissions of Nitrogen Oxides (NOX) From Cement Kilns

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing approval of revisions to the Texas State
Implementation Plan (SIP). The State of Texas submitted this SIP
revision to the 30 TAC Chapter 117 to us on May 30, 2007 (May 30, 2007
submittal) concerning control of emissions of NOX from
cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan
Counties of Texas. We are proposing to approve the cement kilns
provisions of the May 30, 2007 submittal for cement kilns operating in
these five Texas Counties. We are also proposing to approve the May 30,
2007 submittal as meeting the Reasonably Available Control Technology
(RACT) requirements for NOX emissions from cement kilns
operating in the Dallas Fort Worth (D/FW) 8-hour ozone nonattainment
area. The NOX emissions controls associated with this SIP
revision will assist the D/FW area to attain the Federal 8-hour ozone
National Ambient Air Quality Standards (NAAQS). We are proposing
approval of this action as meeting sections 110 and 182 of the Federal
Clean Air Act (the Act).

DATES: Comments must be received on or before August 11, 2008.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2007-1147, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at<EMAIL_ADDRESS>Please
also

send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number<PHONE_NUMBER>.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-1147. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or e-mail that you consider to be
CBI or otherwise protected from disclosure. The http://
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.
    The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
    Texas Commission on Environmental Quality (TCEQ), Office of Air
Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>, fax
(214) 665-7263, e-mail address shar.alan @epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA.

I. General Information

What Should I Consider as I Prepare My Comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
    B. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a CFR part or
section number.
     Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

II. Background

Table of Contents

1. What are we proposing to approve?
2. What sections of the May 30, 2007 submittal will become part of
Texas SIP?
3. What sections of the May 30, 2007 submittal will not become a
part of Texas SIP?
4. What Texas Counties will this rulemaking affect?
5. What are NOX?
6. What is Ozone and why do we regulate it?
7. What is a SIP?
8. What are the NOX control emissions requirements that
we approved for Texas under the 1-hour ozone SIP?
9. What are the NOX control emissions requirements that
we are proposing to approve for Texas under the 8-hour ozone SIP?
10. What is the proposed compliance schedule for cement kilns?

1. What are we proposing to approve?

    On May 30, 2007, TCEQ submitted rule revisions to 30 TAC, Chapter
117, ``Control of Air Pollution from Nitrogen Compounds,'' as a
revision to the Texas SIP, identified by TCEQ as rule project No. 2006-
004-117-EN, for cement kilns operating in Bexar, Comal, Ellis, Hays,
and McLennan Counties. In this rulemaking, we are proposing to approve
the NOX control requirements for cement kilns operating in
these five Texas Counties. See sections 2, 3, 4, 8, and 9 of this
document for more information. The NOX emissions

controls associated with this SIP revision will assist the D/FW area to
attain the Federal 8-hour ozone NAAQS, and will enhance the Texas SIP.
We are also proposing to approve the cement kilns provisions of the May
30, 2007 submittal as meeting the RACT requirements for NOX
emissions from cement kilns operating in the D/FW 8-hour ozone
nonattainment area. By proposing to approve the cement kilns provisions
of the May 30, 2007 submittal we are stating that Texas is meeting the
NOX RACT requirements for cement kilns in the D/FW area.
    The EPA has defined RACT as the lowest emission limitation that a
particular source can meet by applying a control technique that is
reasonably available considering technological and economic
feasibility. See 44 FR 53761, September 17, 1979. This requirement is
established by sections 182(b)(2) and 182(f) of the Act. These two
sections, taken together, establish the requirements for Texas to
submit a NOX RACT regulation for cement kilns (a major
source of NOX) in ozone nonattainment areas classified as
moderate (such as D/FW) and above. A State may choose to develop its
own RACT requirements on a case by case basis, considering the economic
and technical circumstances of an individual source. In addition,
section 183(c) of the Act provides that we will issue technical
documents which identify alternative controls for stationary sources of
NOX. The EPA publishes the NOX related
Alternative Control Techniques documents (ACTs) for this purpose. The
information in the ACT documents is generated from literature sources
and contacts, control equipment vendors, EPA papers, engineering firms,
and Federal, State, and local regulatory agencies. States can use
information in the EPA ACTs to develop their RACT regulations. For a
listing of EPA's ACT-related documents, including the ACT document for
Cement Manufacturing, see http://www.epa.gov/ttn/naaqs/ozone/ctg_act/
index.htm (URL dated April 22, 2008).
    The Chapter 117 cement kilns provisions were last approved by EPA
at 69 FR 15681 published on March 26, 2004.

2. What sections of the May 30, 2007 submittal will become part of
Texas SIP?

    Table 1 below contains a summary list of the sections of 30 TAC,
Chapter 117 that Texas proposed on May 30, 2007, for cement kilns to
become part of the Texas SIP.

Table 1.--Section Numbers and Section Descriptors of 30 TAC, Chapter 117
                    Affected by the Cement Kilns Rule
------------------------------------------------------------------------
            Section No.                          Description
------------------------------------------------------------------------
Section 117.3100..................  Applicability.
Section 117.3101..................  Cement Kilns Definitions.
Section 117.3103..................  Exemptions.
Section 117.3110..................  Emission Specifications.
Section 117.3120..................  Source Cap.
Section 117.3123..................  Dallas-Fort Worth Eight-Hour Ozone
                                     Attainment Demonstration Control
                                     Requirements.
Section 117.3140..................  Continuous Demonstration of
                                     Compliance.
Section 117.3142..................  Emission Testing and Monitoring for
                                     Eight-Hour Attainment
                                     Demonstration.
Section 117.3145..................  Notification, Recordkeeping, and
                                     Reporting Requirements.
Section 117.9320..................  Compliance Schedule for Cement
                                     Kilns.
------------------------------------------------------------------------

    You can find complete TCEQ's rules and regulations at http://
www.tceq.state.tx.us/rules/indxpdf.html.

3. What sections of the May 30, 2007 submittal will not become a part
of Texas SIP?

    Per TCEQ's request the following sections, listed in Table 2 below,
of the cement kilns rule will not become a part of EPA-approved Texas
SIP. These sections mainly pertain to the control of ammonia, that is
not a precursor to ozone, and are not required to be a part of the SIP.

     Table 2.--Sections of Chapter 117 Not in EPA-Approved Texas SIP
------------------------------------------------------------------------
              Section No.                          Explanation
------------------------------------------------------------------------
117.3123(f), and 117.3125..............  Not a part of EPA-approved
                                          Texas SIP.
------------------------------------------------------------------------

    Although the above sections of 30 TAC Chapter 117 are not to become
a part of Texas SIP, they will continue to remain enforceable at the
State level.

4. What Texas Counties will this rulemaking affect?

    Table 3 below lists the five Texas Counties that will be affected
by the cement kilns rule.

   Table 3.--Texas Counties Affected by Cement Kiln Rulemaking of 2007
------------------------------------------------------------------------
              Texas counties                         Explanation
------------------------------------------------------------------------
Bexar, Comal, Ellis, Hays, and McLennan...  See section 117.3101.
------------------------------------------------------------------------

5. What are NOX?

    Nitrogen oxides belong to the group of criteria air pollutants.
NOX are produced from burning fuels, including gasoline and
coal. Nitrogen oxides react with volatile organic compounds (VOC) to
form ozone or smog, and are also major components of acid rain. Also
see http://www.epa.gov/air/urbanair/nox/.

6. What is ozone and why do we regulate it?

    Ozone is a gas composed of three oxygen atoms. Ground level ozone
is generally not emitted directly from a vehicle's exhaust or an
industrial smokestack, but is created by a chemical reaction between
NOX and VOCs in the presence of sunlight and high ambient
temperatures. Thus, ozone is known primarily as a summertime air
pollutant. NOX and VOCs are precursors of ozone. Motor
vehicle exhaust and industrial emissions, gasoline vapors, chemical
solvents and natural sources emit NOX and VOCs. Urban areas
tend to have high concentrations of ground-level ozone, but areas
without significant industrial activity and with relatively low
vehicular traffic are also subject to increased ozone levels because
wind carries ozone and its precursors hundreds of miles from their
sources.
    Repeated exposure to ozone pollution may cause lung damage. Even at
very low concentrations, ground-level ozone triggers a variety of
health problems including aggravated asthma, reduced

lung capacity, and increased susceptibility to respiratory illnesses
like pneumonia and bronchitis. It can also have detrimental effects on
plants and ecosystems.

7. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies,
other means or techniques and technical analyses developed by the
state, to ensure that the state meets the NAAQS. The SIP is required by
Section 110 and other provisions of the Act. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emissions inventories, monitoring
networks, and modeling demonstrations. Each state must submit these
regulations and control strategies to EPA for approval and
incorporation into the federally-enforceable SIP. Each federally-
approved SIP protects air quality primarily by addressing air pollution
at its point of origin.

 8. What are the NOX control emissions requirements that we
approved for Texas under the 1-hour ozone SIP?

    We approved the NOX control emission requirements for
cement kilns at 69 FR 15681 published on March 26, 2004. See Table III
of that document. We have included that Table in our TSD prepared for
this rulemaking action.

 9. What are the NOX control emissions requirements that we
are proposing to approve for Texas under the 8-hour ozone SIP?

    Under today's rulemaking action, the NOX control
requirements that we approved on March 26, 2004 (69 FR 15681) for
cement kilns operating in Texas Counties of Bexar, Comal, Hays, and
McLennan still will continue to remain in effect.
    Ellis County is located within the D/FW 8-hour ozone nonattainment
area. The ozone season for the D/FW area is March 1 through October 31
of each calendar year. See 40 CFR 58, Appendix D, Table D-3, and 40 CFR
81.39. For Ellis County, during the non-ozone season (November 1
through end-of-February of each calendar year), the cement kilns
NOX control requirements that we approved at 69 FR 15681
will continue to remain in effect. However, during the ozone season,
March 1 through October 31 of each calendar year, the cement kilns in
Ellis County must comply with a source cap formula calculated and
expressed in Tons Per Day (TPD) of actual NOX emissions, per
site, on a 30-day rolling average basis. See equation 117.3123(b). The
following Table 5 contains a summary list of NOX control
requirements for cement kilns under the 8-hour ozone SIP.

                 Table 5.--NOX Control Requirements for Cement Kilns Under the 8-Hour Ozone SIP
----------------------------------------------------------------------------------------------------------------
              Source                      County          NOX emission requirement            Citation
----------------------------------------------------------------------------------------------------------------
Long wet kiln....................  Bexar, Comal, Hays,   6.0 lb NOX/ton of clinker  117.3110(a)(1)(A).
                                    McLennan.             produced.
Long dry kiln....................  Bexar, Comal, Hays,   5.1 lb NOX/ton clinker of  117.3110(a)(2).
                                    McLennan.             produced.
Preheater kiln...................  Bexar, Comal, Hays,   3.8 lb NOX/ton of clinker  117.3110(a)(3).
                                    McLennan.             produced.
Precalciner or preheater-          Bexar, Comal, Hays,   2.8 lb NOX/ton of clinker  117.3110(a)(4).
 precalciner kiln.                  McLennan.             produced.
Long wet kiln....................  Ellis...............  4.0 lb NOX/ton of clinker  117.3110(a)(1)(B).
                                                          produced, outside D/FW
                                                          ozone season.
Preheater kiln...................  Ellis...............  3.8 lb NOX/ton of clinker  117.3110(a)(3).
                                                          produced, outside D/FW
                                                          ozone season.
Long dry kiln....................  Ellis...............  5.1 lb NOX/ton clinker of  117.3110(a)(2).
                                                          produced, outside D/FW
                                                          ozone season.
Precalciner or preheater-          Ellis...............  2.8 lb NOX/ton of clinker  117.3110(a)(4).
 precalciner kiln.                                        produced, outside D/FW
                                                          ozone season.
Portland cement kiln.............  Ellis...............  During D/FW ozone season,  117.3123(b).
                                                          30-day rolling average,
                                                          source cap equation
                                                          117.3123(b), with the
                                                          2003-2005 reported
                                                          average annual clinker
                                                          production, limit is
                                                          equivalent to 1.7 lb NOX/
                                                          ton of clinker produced
                                                          for dry preheater-
                                                          precalciner or
                                                          precalciner kilns, or
                                                          3.4 lb NOX/ton of
                                                          clinker produced for
                                                          long wet kilns.
----------------------------------------------------------------------------------------------------------------

    The cement kilns rule does not require or endorse a specific post
combustion NOX control technology, and allows the owners or
operators to choose their preferred method of compliance as long as the
source cap limit, per site, is being met. These NOX control
requirements will result in a 9.7 TPD of NOX reduction from
cement kilns in Ellis County, and will enhance the Texas SIP. We
contend that the above NOX control requirements for existing
cement kilns in the D/FW area are more stringent than those found in
our reference documents ``Alternative Control Techniques Document--
NOX Emissions from Cement Manufacturing'' EPA-453/R-94-004,
and ``NOX Control Technologies for the Cement Industry''
Final Report, EPA Contract No. 68-D98-026, dated September 19, 2000,
and are comparable to or more stringent than controls to be implemented
in other parts of the country for RACT purposes. Therefore, we are
proposing their approval into Texas SIP, and as meeting the RACT
requirement for the D/FW 8-hour ozone nonattainment area. See our TSD
prepared in conjunction with this rulemaking action for more
information.

 10. What are the compliance schedules for NOX emissions
from cement kilns that we are proposing to approve?

    The compliance schedule for cement kilns located in Texas Counties
of Bexar, Comal, Hays, and McLennan will continue to remain in effect
as we approved them at 69 FR 15681. See Table IV of that document. We
have included that Table in our TSD prepared for this rulemaking
action.
    The following Table 6 contains summary of the NOX
compliance schedule-related information for cement kilns in Ellis
County. See section 117.9320(c) for more information.

              Table 6.--NOX Compliance Schedules for Cement Kilns in Ellis County Under Chapter 117
----------------------------------------------------------------------------------------------------------------
               Source                      Compliance date        Additional information         Citation
----------------------------------------------------------------------------------------------------------------
Cement Kilns--Ellis County.........  Comply with testing,         8-hour attainment       117.9320.
                                      monitoring, notification,    demonstration
                                      recordkeeping, and           requirement.
                                      reporting requirements as
                                      soon as practicable but no
                                      later than March 1, 2009.
----------------------------------------------------------------------------------------------------------------

    We believe that including the compliance dates in the rule provides
for enforceability and practicability of the NOX rule, and
enhances the Texas SIP. The March 1, 2009 compliance date for cement
kilns in Ellis County is consistent with the implementation requirement
set forth in 40 CFR 51.912(a)(3). Therefore, we are proposing their
approval into Texas SIP, and as meeting the RACT requirement for the D/
FW 8-hour ozone nonattainment area.

III. Proposed Action

    Today, we are proposing to approve revisions to the 30 TAC Chapter
117 into Texas SIP. In this rulemaking we are proposing to approve the
cement kilns provisions of the May 30, 2007 submittal for cement kilns
operating in Bexar, Comal, Ellis, Hays, and McLennan Counties of Texas.
We are also proposing to approve the May 30, 2007 submittal as meeting
the RACT requirements for NOX emissions from cement kilns
operating in the D/FW 8-hour ozone nonattainment area. These
NOX reductions will assist the D/FW area to attain the 8-
hour ozone NAAQS, and enhance the Texas SIP.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxide, Reporting and recordkeeping requirements, Volatile organic
compounds.

    Dated: July 1, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
 [FR Doc. E8-15812 Filed 7-10-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: June 30, 2006 (Volume 71, Number 126)]
[Notices]
[Page 37629-37635]
[DOCID:fr30jn06-113]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54040; File No. SR-Amex-2006-41]

Self-Regulatory Organizations; American Stock Exchange LLC; Order
Granting Approval to Proposed Rule Change and Amendment No. 1 and
Notice of Filing and Order Granting Accelerated Approval to Amendment
No. 2 Relating to the Listing and Trading of Shares of the ProShares
Trust

June 23, 2006.

I. Introduction

    On April 28, 2006, the American Stock Exchange LLC (``Amex'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to section 19(b)(1) \1\ of the Securities
Exchange Act of 1934 (``Act'' or ``Exchange Act'') a proposed rule
change to list and trade of shares (``Index Fund Shares'') based on the
following four (4) new funds of the ProShares Trust (the ``Trust''):
Ultra Short 500 Fund; Ultra Short 100 Fund; Ultra Short 30 Fund; and
the Ultra Short Mid-Cap 400 Fund (the ``Funds''). On May 5, 2006, the
Amex submitted Amendment No. 1 to the proposed rule change.\2\ The
proposed rule change, as amended by Amendment No. 1 thereto, was
published for comment in the Federal Register on May 17, 2006.\3\ The
Commission received no comments on the proposal. On June 23, 2006, the
Amex submitted Amendment No. 2 to the proposed rule change.\4\ This
order approves the proposed rule change, as amended. Simultaneously,
the Commission provides notice of Amendment No. 2, grants accelerated
approval of Amendment No. 2, and solicits comments from interested
persons on Amendment No. 2.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ Amendment No. 1 (``Amendment No. 1'') replaced the original
filing in its entirety.
    \3\ See Securities Exchange Act Release No. 53784 (May 10,
2006), 71 FR 28721 (``Notice'').
    \4\ In Amendment No. 2 (``Amendment No. 2''), the Exchange
states that the Advisor (as defined below) has informed the Exchange
that: (1) The net asset value (``NAV'') for the Funds will be made
available to all market participants at the same time; (2) if the
NAV is not disseminated to all market participants at the same time,
the Exchange will halt trading in the shares of the Funds; and (3)
if the Fund temporarily does not disseminate the NAV to all market
participants at the same time, the Exchange will immediately contact
the Commission staff to discuss measures that may be appropriate
under the circumstances.
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    The Exchange, pursuant to Amex Rule 1000A(b)(2), proposes to list
and trade the Funds that seek to provide investment results that
correspond to twice (or two times) the inverse or opposite (-200%) of
the index's performance.
    Amex Rules 1000A et seq. provide standards for the listing of Index
Fund Shares, which are securities issued by an open-end management
investment company for exchange trading. These securities are
registered under the Investment Company Act of 1940 (``1940 Act''), as
well as under the Act. Index Fund Shares are defined in Amex Rule
1000A(b)(1) as securities based on a portfolio of stocks or fixed
income securities that seek to provide investment results that
correspond generally to the price and yield of a specified foreign or
domestic stock index or fixed income securities index.
    Recent amendments adopting Amex Rule 1000A(b)(2) now permit the
Exchange to list and trade, upon Commission approval, Index Fund Shares
that seek to provide investment results that exceed the performance of
an underlying securities index by a specified multiple or that seek to
provide investment results that correspond to a specified multiple of
the inverse or opposite of the index's performance, if the Exchange
files separate proposals under section 19(b) \5\ of the Act, before
listing and trading. Accordingly, consistent with Amex Rule
1000A(b)(2), the Exchange now proposes to list and trade Index Fund
Shares seeking investment results that correspond to twice the inverse
of the underlying index's performance.
---------------------------------------------------------------------------

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

    The Commission recently approved the listing and trading on Amex of
the Bullish and Bearish Funds (Ultra500 Fund; Ultra100 Fund; Ultra30
Fund; Ultra Mid-Cap 400 Fund; Short500Fund; Short100 Fund; Short30
Fund; and Short Mid-Cap 400 Fund).\6\ In particular, the Original Order
provides that the Bearish Funds seek to provide investment results that
correspond to the inverse of the relevant underlying index's
performance. The Exchange's proposal seeks to expand the Bearish Fund
offerings by permitting certain Index Fund Shares to such investments
results that are two (2) times the inverse of the index.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 52553 (October 3,
2005), 70 FR 59100 (October 11, 2005) (``Original Order'').
---------------------------------------------------------------------------

    The Exchange proposes to list under Amex Rule 1000A, the shares of
the

Funds. The Funds seek daily investment results, before fees and
expenses, that correspond to twice the inverse (-200%) of the daily
performance of the Standard and Poor's 500[supreg] Index (``S&P 500''),
the Nasdaq-100[supreg] Index (``Nasdaq 100''), the Dow Jones Industrial
AverageSM (``DJIA'') and the S&P MidCap400TM
Index (``S&P MidCap''), respectively. (These indexes are referred to
herein as ``Underlying Indexes''.) \7\ If each of these Funds is
successful in meeting its objective, the NAV \8\ of shares of each Fund
should increase approximately twice as much, on a percentage basis, as
the respective Underlying Index loses when the prices of the securities
in the Index decline on a given day, or should decrease approximately
twice as much as the respective Underlying Index gains when the prices
of the securities in the index rise on a given day.
---------------------------------------------------------------------------

    \7\ Exchange-traded funds (``ETFs'') based on each of the
Underlying Indexes are listed and traded on the Exchange. See
Securities Exchange Act Release Nos. 31591 (December 11, 1992), 57
FR 60253 (December 18, 1992) (S&P 500 SPDR); 39143 (September 29,
1997), 62 FR 51917 (October 3, 1997) (DIAMONDS); 41119 (February 26,
1999), 64 FR 11510 (March 9, 1999) (QQQ); and 35689 (May 8, 1995),
60 FR 26057 (May 16, 1995) (S&P MidCap 400). The Statement of
Additional Information (``SAI'') for the Funds discloses that each
Fund reserves the right to substitute a different Index. In the
event a Fund substitutes a different index, the Exchange will file a
new Rule 19b-4 filing with the Commission, which the Commission
would have to approve to permit continued trading of the product
based on a substitute index. Telephone Conversation between Jeffrey
P. Burns, Associate General Counsel, Amex, and Florence Harmon,
Senior Special Counsel, Division of Market Regulation
(``Division''), Commission, on May 10, 2006.
    \8\ The NAV of each Fund is calculated and determined each
business day at the close of regular trading, typically 4 p.m.
Eastern Time (``ET''). The Advisor has informed the Exchange that
the NAV for each Fund will be calculated and disseminated at the
same time to all market participants. See Amendment No. 2.
---------------------------------------------------------------------------

    ProShare Advisors LLC is the investment advisor (the ``Advisor'')
to each Fund. The Advisor is registered under the Investment Advisers
Act of 1940.\9\ While the Advisor will manage each Fund, the Trust's
Board of Trustees (the ``Board'') will have overall responsibility for
the Funds' operations. The composition of the Board is, and will be, in
compliance with the requirements of section 10 of the 1940 Act.
---------------------------------------------------------------------------

    \9\ The Trust, Advisor and Distributor (``Applicants'') have
filed with the Commission an Application for an Order under sections
6(c) and 17(b) of the 1940 Act (the ``Application'') for the purpose
of exempting the Funds of the Trust from various provisions of the
1940 Act. (File No. 812-12354).
---------------------------------------------------------------------------

    SEI Investments Distribution Company (the ``Distributor''), a
broker-dealer registered under the Act, will act as the distributor and
principal underwriter of the Shares. JPMorgan Chase Bank will act as
the index receipt agent (``Index Receipt Agent''), for which it will
receive fees. The Index Receipt Agent will be responsible for
transmitting the Deposit List to the National Securities Clearing
Corporation (``NSCC'') and for the processing, clearance, and
settlement of purchase and redemption orders through the facilities of
the Depository Trust Company (``DTC'') and NSCC on behalf of the Trust.
The Index Receipt Agent will also be responsible for the coordination
and transmission of files and purchase and redemption orders between
the Distributor and the NSCC.
    Shares of the Funds issued by the Trust will be a class of
exchange-traded securities that represent an interest in the portfolio
of a particular Fund (the ``Shares'').\10\ Shares will be registered in
book-entry form only, and the Trust will not issue individual share
certificates. The DTC or its nominee will be the record or registered
owner of all outstanding Shares. Beneficial ownership of Shares will be
shown on the records of DTC or DTC Participants.
---------------------------------------------------------------------------

    \10\ The Fund is also registered as a business trust under the
Delaware Corporate Code.
---------------------------------------------------------------------------

Investment Objective and Techniques of the Funds

    The Funds will seek daily investment results, before fees and
expenses, of double the inverse or opposite (-200%) of the Underlying
Index. Each Fund will not invest directly in the component securities
of the relevant Underlying Index, but instead, will create short
exposure to such Index. Each Fund will rely on establishing positions
in financial instruments (as defined below) that provide, on a daily
basis, double the inverse or opposite of the investment results of the
relevant Underlying Index. Normally 100% of the value of the portfolios
of each Fund will be devoted to such financial instruments and money
market instruments, including U.S. government securities and repurchase
agreements \11\ (the ``Money Market Instruments'').
---------------------------------------------------------------------------

    \11\ Repurchase agreements held by the Funds will be consistent
with Rule 2a-7 under the 1940 Act, i.e., remaining maturities of 397
days or less and rated investment-grade.
---------------------------------------------------------------------------

    The financial instruments to be held by any of the Funds may
include stock index futures contracts, options on futures
contracts,\12\ options on securities and indices, equity caps, collars
and floors as well as swap agreements, forward contracts, repurchase
agreements and reverse repurchase agreements (the ``Financial
Instruments''), and Money Market Instruments.
---------------------------------------------------------------------------

    \12\ Each Fund may engage in transactions in futures contracts
on designated contract markets where such contracts trade and will
only purchase and sell futures contracts traded on a U.S. futures
exchange or board of trade.
---------------------------------------------------------------------------

    Each Fund may enter into swap agreements and forward contracts for
the purposes of attempting to gain exposure to the equity securities of
its Underlying Index without actually transacting such securities. The
Exchange states that counterparties to the swap agreements and/or
forward contracts will be major broker-dealers and banks. The
creditworthiness of each potential counterparty is assessed by the
Advisor's credit committee pursuant to guidelines approved by the
Board. Existing counterparties are reviewed periodically by the Board.
Each Fund may also enter into repurchase and reverse repurchase
agreements with terms of less than one year and will only enter into
such agreements with (i) members of the Federal Reserve System, (ii)
primary dealers in U.S. government securities, or (iii) major broker-
dealers.\13\ Each Fund may also invest in Money Market Instruments, in
pursuit of its investment objectives, as ``cover'' for Financial
Investments, as required by the 1940 Act, or to earn interest.
Additional details about the funds' investment techniques, including
additional regulatory requirements, are described in the Notice.
---------------------------------------------------------------------------

    \13\ Telephone Conversation between Jeffrey P. Burns, Associate
General Counsel, Amex, and Florence Harmon, Senior Special Counsel,
Division, Commission, on May 10, 2006 (as to insertion of term
``major'' in describing broker-dealer counterparties).
---------------------------------------------------------------------------

    While the Advisor will attempt to minimize any ``tracking error''
between the investment results of a particular Fund and the inverse
performance (and specified multiple thereof) of its Underlying Index,
certain factors may tend to cause the investment results of a Fund to
vary from such relevant Underlying Index or specified multiple
thereof.\14\ The Exchange states that the Funds are expected to be
highly inversely correlated to each Underlying Index and investment
objective (-.95 or greater).\15\ In each case, the Funds are expected
to have a daily tracking error of less than 5% (500 basis points)
relative to the specified (inverse)

multiple of the performance of the relevant Underlying Index.
---------------------------------------------------------------------------

    \14\ Factors that may cause a Fund to vary from the relevant
Underlying Index and investment objective are described in the
Original Order and Notice.
    \15\ Correlation is the strength of the relationship between (1)
the change in a Fund's NAV and (2) the change in the benchmark index
(investment objective). The statistical measure of correlation is
known as the correlation coefficient. A correlation coefficient of
+1 indicates a high direct correlation while a value of -1 indicates
a strong inverse correlation. A value of zero would mean that there
is no correlation between the two variables.
---------------------------------------------------------------------------

The Portfolio Investment Methodology

    The Advisor will seek to establish an investment exposure in each
portfolio corresponding to each Fund's investment objective based upon
its Portfolio Investment Methodology (``Methodology'').
    The Methodology takes into account a variety of specified criteria
and data (the ``Inputs''), the most important of which are: (1) Net
assets (taking into account creations and redemptions) in each Fund's
portfolio at the end of each trading day, (2) the amount of required
exposure to the Underlying Index, and (3) the positions in Financial
Instruments and/or Money Market Instruments at the beginning of each
trading day. The Advisor pursuant to the methodology will then
mathematically determine the end-of-day positions to establish the
required amount of exposure to the Underlying Index (the ``Solution''),
which will consist of Financial Instruments and Money Market
Instruments. The difference between the start-of-day positions and the
required end-of-day positions is the actual amount of Financial
Instruments and/or Money Market Instruments that must be bought or sold
for the day. The Solution represents the required exposure and, when
necessary, is converted into an order or orders to be filled that same
day.
    Generally, portfolio trades effected pursuant to the Solution are
reflected in the NAV on the first business day (T+1) after the date the
relevant trade is made. Therefore, the NAV calculated for a Fund on a
given day should reflect the trades executed pursuant to the prior
day's Solution. For example, trades pursuant to the Solution calculated
on a Monday afternoon are executed on behalf of the Fund in question on
that day. These trades will then be reflected in the NAV for that Fund
that is calculated as of 4 p.m. ET on Tuesday.
    The timeline for the Methodology is as follows. Authorized
Participants (``APs'' or ``Authorized Participants'') have a 3 p.m. ET
cut-off for orders submitted by telephone, facsimile, and other
electronic means of communication and a 4 p.m. ET cut-off for orders
received via mail. AP orders by mail are exceedingly rare. Orders are
received by the distributor, SEI Corporation (``SEI'') and relayed to
the Advisor within ten (10) minutes. The Advisor will know by 3:10 p.m.
ET the number of creation/redemption orders by APs for that day. Orders
are then placed at approximately 3:40 p.m. ET as market-on-close (MOC)
orders. At 4 p.m. ET, the Advisor will again look at the exposure to
make sure that the orders placed are consistent with the Solution, and
as described above, the Advisor will execute any other transactions in
Financial Instruments to assure that the Fund's exposure is consistent
with the Solution.

Availability of Information About the Shares and Underlying Indexes

    The Trust's Web site (http://www.proshares.com) and/or that of the Exchange (http://www.amex.com), which is and will be publicly

accessible at no charge, will contain the following information for
each Fund's Shares: (a) The prior business day's closing NAV, the
reported closing price, and a calculation of the premium or discount of
such price in relation to the closing NAV; (b) data for a period
covering at least the four previous calendar quarters (or the life of a
Fund, if shorter) indicating how frequently each Fund's Shares traded
at a premium or discount to NAV based on the daily closing price and
the closing NAV, and the magnitude of such premiums and discounts, (c)
its Prospectus and Product Description and (d) other quantitative
information such as daily trading volume. The Prospectus and/or Product
Description for each Fund will inform investors that the Trust's Web
site has information about the premiums and discounts at which the
Fund's Shares have traded.\16\
---------------------------------------------------------------------------

    \16\ See ``Prospectus Delivery'' below regarding the Product
Description. The Application requests relief from section 24(d) of
the 1940 Act, which would permit dealers to sell Shares in the
secondary market unaccompanied by a statutory prospectus when
prospectus delivery is not required by the Securities Act of 1933.
Additionally, Commentary .03 of Amex Rule 1000A requires that Amex
members and member organizations provide to all purchasers of a
series of Index Fund Shares a written description of the terms and
characteristics of such securities, in a form prepared by the open-
end management investment company issuing such securities, not later
than the time of confirmation of the first transaction in such
series is delivered to such purchaser. Furthermore, any sales
material will reference the availability of such circular and the
prospectus.
---------------------------------------------------------------------------

    The Amex will disseminate for each Fund on a daily basis by means
of Consolidated Tape Association (``CTA'') and CQ High Speed Lines
information with respect to an Indicative Intra-Day Value (the ``IIV'')
(as defined and discussed below under ``Dissemination of Indicative
Intra-Day Value (IIV)''), recent NAV, shares outstanding, estimated
cash amount and total cash amount per Creation Unit. The Exchange will
make available on its Web site daily trading volume, closing price, the
NAV and final dividend amounts to be paid for each Fund.
    Each Fund's total portfolio composition will be disclosed on the
Web site of the Trust (http://www.proshares.com).\17\ The Web site

disclosure of portfolio holdings will be made daily and will include,
as applicable, the specific types of Financial Instruments and
characteristics of such instruments, cash equivalents and amount of
cash held in the portfolio of each Fund. This public Web site
disclosure of the portfolio composition of each Fund will coincide with
the disclosure by the Advisor of the ``IIV File'' (described below).
Therefore, the same portfolio information (including accrued expenses
and dividends) will be provided on the public Web site, as well as in
the IIV File provided to Authorized Participants. The format of the
public Web site disclosure and the IIV File will differ because the
public Web site will list all portfolio holdings while the IIV File
will similarly provide the portfolio holdings but in a format
appropriate for Authorized Participants, i.e., the exact components of
a Creation Unit \18\ Accordingly, each investor will have access to the
current portfolio composition of each Fund through the Trust Web site
at http://www.proshares.com.\19\

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

    \17\ Telephone Conversation between Nyieri Nazarian, Assistant
General Counsel, Amex, and David Hsu, Special Counsel, Division,
Commission, on June 13, 2006.
    \18\ The composition will be used to calculate the NAV later
that day.
    \19\ See supra note 17. Telephone Conversation between Jeffrey
Burn, Vice President and Associate General Counsel, Amex, and
Florence Harmon, Senior Special Counsel, Division, Commission, on
June 23, 2006 (confirming Web site disclosures).
---------------------------------------------------------------------------

    Beneficial owners of Shares (``Beneficial Owners'') will receive
all of the statements, notices, and reports required under the 1940 Act
and other applicable laws. They will receive, for example, annual and
semi-annual fund reports, written statements accompanying dividend
payments, proxy statements, annual notifications detailing the tax
status of fund distributions, and Form 1099-DIVs. Some of these
documents will be provided to Beneficial Owners by their brokers, while
others will be provided by the Fund through the brokers.
    The daily closing index value and the percentage change in the
daily closing index value for each Underlying Index will be publicly
available on various Web sites, e.g., http://www.bloomberg.com. Data

regarding each Underlying Index is also available from the respective
index provider to subscribers. Several independent data

vendors also package and disseminate index data in various value-added
formats (including vendors displaying both securities and index levels
and vendors displaying index levels only). The value of each Underlying
Index will be updated intra-day on a real time basis as its individual
component securities change in price. These intra-day values of each
Underlying Index will be disseminated at least every 15 seconds
throughout the trading day by the Amex or another major market data
vendor authorized by the relevant Underlying Index provider.

Creation and Redemption of Shares

    Each Fund will issue and redeem Shares only in initial aggregations
of at least 50,000 (``Creation Units''). Purchasers of Creation Units
will be able to separate the Units into individual Shares. Once the
number of Shares in a Creation Unit is determined, it will not change
thereafter (except in the event of a stock split or similar
revaluation). The initial value of a Share for each of the Funds is
expected to be in the range of $50-$250.
    Because the NSCC's system for the receipt and dissemination to its
participants of a Portfolio Composition File (``PCF'') is not currently
capable of processing information with respect to Financial
Instruments, the Advisor has developed an ``IIV File,'' which it will
use to disclose the Funds'' holdings of Financial Instruments.\20\ The
IIV File will contain, for each Fund, information sufficient for market
participants to calculate a Fund's IIV and effectively arbitrage the
Fund.
---------------------------------------------------------------------------

    \20\ The Trust or the Advisor will post the IIV File to a
password-protected Web site before the opening of business on each
business day, and all Authorized Participants who are also NSCC
participants and the Exchange will have access to the password and
the Web site containing the IIV File. However, the Fund will
disclose each business day to the public identical information, but
in a format appropriate to public investors, at the same time the
Fund discloses the IIV and PCF files to industry participants.
---------------------------------------------------------------------------

    For example, the following information would be provided in the IIV
File for a Fund holding swaps and futures contracts: (A) The notional
value of the swaps held by such Fund (together with an indication of
the index on which such swap is based and whether the Fund's position
is long or short), (B) the most recent valuation of the swaps held by
the Fund, (C) the notional value of any futures contracts (together
with an indication of the index on which such contract is based,
whether the Fund's position is long or short and the contact's
expiration date), (D) the number of futures contracts held by the Fund
(together with an indication of the index on which such contract is
based, whether the Fund's position is long or short and the contact's
expiration date), (E) the most recent valuation of the futures
contracts held by the Fund, (F) the Fund's total assets and total
shares outstanding, and (G) a ``net other assets'' figure reflecting
expenses and income of the Fund to be accrued during and through the
following business day and accumulated gains or losses on the Fund's
Financial Instruments through the end of the business day immediately
preceding the publication of the IIV File. To the extent that any
Bearish Fund holds cash or cash equivalents, information regarding such
Fund's cash and cash equivalent positions will be disclosed in the IIV
File for such Fund.
    The information in the IIV File will be sufficient for participants
in the NSCC system to calculate the IIV for the Funds during such next
business day. The IIV File will also be the basis for the next business
day's NAV calculation.
    Under normal circumstances, the Shares of the Funds will be created
and redeemed entirely for cash (``All-Cash Payments''). The IIV File
published before the opening of business on a business day will,
however, permit NSCC participants to calculate (by means of calculating
the IIV) the amount of cash required to create a Creation Unit
Aggregation, and the amount of cash that will be paid upon redemption
of a Creation Unit Aggregation, for each Fund for that business day.
The use of an All-Cash Payment for the purchase and redemption of
Creation Unit Aggregations of the Funds is due to the limited
transferability of Financial Instruments.
    As noted below in ``Dissemination of Indicative Intra-Day Value
(IIV),'' the Exchange will disseminate through the facilities of the
CTA, at regular 15 second intervals during the Exchange's regular
trading hours, the IIV on a per Fund Share basis.
    The Exchange believes that Shares will not trade at a material
discount or premium to the underlying portfolio assets \21\ held by a
Fund based on potential arbitrage opportunities. The arbitrage process,
which provides the opportunity to profit from differences in prices of
the same or similar securities, increases the efficiency of the markets
and serves to prevent potentially manipulative efforts. If the price of
a Share deviates enough from the Creation Unit, on a per share basis,
to create a material discount or premium, an arbitrage opportunity is
created allowing the arbitrageur to either buy Shares at a discount,
immediately cancel them in exchange for the Creation Unit and sell the
underlying portfolio assets in the cash market at a profit, or sell
Shares short at a premium and buy the Creation Unit in exchange for the
Shares to deliver against the short position. In both instances the
arbitrageur locks in a profit and the markets move back into line.\22\
---------------------------------------------------------------------------

    \21\ Telephone Conversation between Jeffrey Burn, Vice President
and Associate General Counsel, Amex, and Florence Harmon, Senior
Special Counsel, Division, Commission, on June 23, 2006 (clarifying
arbitrage description).
    \22\ In their 1940 Act Application, the Applicants stated that
they do not believe that All-Cash Payments will affect arbitrage
efficiency. This is because Applicants believe it makes little
difference to an arbitrageur whether Creation Unit Aggregations are
purchased in exchange for a basket of securities or cash. The
important function of the arbitrageur is to bid the share price of
any Fund up or down until it converges with the NAV. Applicants note
that this can occur regardless of whether the arbitrageur is allowed
to create in cash or with a Deposit Basket. In either case, the
arbitrageur can effectively hedge a position in a Fund in a variety
of ways, including the use of market-on-close contracts to buy or
sell the Financial Instruments.
---------------------------------------------------------------------------

Placement of Creation Unit Aggregation Purchase and Redemption Orders

    Creation Unit Aggregations of the Funds will be purchased and
redeemed only for cash at NAV plus a transaction fee. The purchaser
will make a cash payment by 12 p.m. ET on the third business day
following the date on which the request was made (T+3).
    Creation Unit Aggregations of the Funds will be redeemable for an
All-Cash Payment equal to the NAV, less the transaction fee, generally
on a T+3 basis.

Dividends

    Dividends, if any, from net investment income will be declared and
paid at least annually by each Fund in the same manner as by other
open-end investment companies. Certain Funds may pay dividends on a
semi-annual or more frequent basis. Distributions of realized
securities gains, if any, generally will be declared and paid once a
year.
    Dividends and other distributions on the Shares of each Fund will
be distributed, on a pro rata basis, to Beneficial Owners of such
Shares. Dividend payments will be made through the Depository and the
DTC Participants to Beneficial Owners then of record with proceeds
received from each Fund.
    The Trust will not make the DTC book-entry Dividend Reinvestment
Service (the ``Dividend Reinvestment Service'') available for use by
Beneficial Owners for reinvestment of their cash proceeds but certain
individual brokers

may make a Dividend Reinvestment Service available to Beneficial
Owners. The SAI will inform investors of this fact and direct
interested investors to contact such investor's broker to ascertain the
availability and a description of such a service through such broker.
The SAI will also caution interested Beneficial Owners that they should
note that each broker may require investors to adhere to specific
procedures and timetables in order to participate in the service, and
such investors should ascertain from their broker such necessary
details. Shares acquired pursuant to such service will be held by the
Beneficial Owners in the same manner, and subject to the same terms and
conditions, as for original ownership of Shares. Brokerage commissions
charges and other costs, if any, incurred in purchasing Shares in the
secondary market with the cash from the distributions generally will be
an expense borne by the individual beneficial owners participating in
reinvestment through such service.

Dissemination of Indicative Intra-Day Value (IIV)

    In order to provide updated information relating to each Fund for
use by investors, professionals and persons wishing to create or redeem
Shares, the Exchange will disseminate through the facilities of the
CTA: (i) Continuously throughout the trading day, the market value of a
Share, and (ii) at least every 15 seconds throughout the trading day, a
calculation of the Indicative Intra-Day Value or ``IIV'' \23\ as
calculated by a third party calculator (the ``IIV Calculator'').\24\
Comparing these two figures helps an investor to determine whether, and
to what extent, the Shares may be selling at a premium or a discount to
NAV.
---------------------------------------------------------------------------

    \23\ The IIV is also referred to by other issuers as an
``Estimated NAV,'' ``Underlying Trading Value,'' ``Indicative
Optimized Portfolio Value (IOPV),'' and ``Intraday Value'' in
various places such as the prospectus and marketing materials for
different exchange-traded funds.
    \24\ The Exchange will calculate the IIV for each Fund.
---------------------------------------------------------------------------

    The IIV Calculator will calculate an IIV for each Fund in the
manner discussed below. The IIV is designed to provide investors with a
reference value that can be used in connection with other related
market information. The IIV does not necessarily reflect the precise
composition of the current portfolio held by each Fund at a particular
point in time. Therefore, the IIV on a per Share basis disseminated
during Amex trading hours should not be viewed as a real time update of
the NAV of a particular Fund, which is calculated only once a day.
While the IIV that will be disseminated by the Amex is expected to be
close to the most recently calculated Fund NAV on a per share basis, it
is possible that the value of the portfolio held by a Fund may diverge
from the IIV during any trading day. In such case, the IIV will not
precisely reflect the value of the Fund portfolio.

IIV Calculation for the Funds

    The IIV Calculator will disseminate the IIV throughout the trading
day for the Funds. The IIV Calculator will determine such IIV by: (i)
Calculating the mark-to-market gains or losses from the Fund's total
return equity swap exposure based on the percentage change to the
Underlying Index and the previous day's notional values of the swap
contracts, if any, held by such Fund (which previous day's notional
value will be provided by the Trust), (ii) calculating the mark-to-
market gains or losses from futures, options and other Financial
Instrument positions by taking the difference between the current value
of those positions held by the Fund, if any (as provided by the Trust),
and the previous day's value of such positions, (iii) adding the values
from (i) and (ii) above to an estimated cash amount provided by the
Trust (which cash amount will include the swap costs), to arrive at a
value and (iv) dividing that value by the total shares outstanding (as
provided by the Trust) to obtain current IIV.

Criteria for Initial and Continued Listing

    The Shares are subject to the criteria for initial and continued
listing of Index Fund Shares in Amex Rule 1002A. A minimum of two
Creation Units (at least 100,000 Shares) will be required to be
outstanding at the start of trading.\25\ This minimum number of Shares
required to be outstanding at the start of trading will be comparable
to requirements that have been applied to previously listed series of
Portfolio Depositary Receipts and Index Fund Shares. The Exchange
believes that the proposed minimum number of Shares outstanding at the
start of trading is sufficient to provide market liquidity.
---------------------------------------------------------------------------

    \25\ Telephone Conversation between Nyieri Nazarian, Assistant
General Counsel, Amex, and David Hsu, Special Counsel, Division,
Commission, on June 13, 2006.
---------------------------------------------------------------------------

    The Exchange represents the Trust is required to comply with Rule
10A-3 under the Act for the initial and continued listing of the
ProShares.

Original and Annual Listing Fees

    The Amex original listing fee applicable to the listing of the
Funds is $5,000 for each Fund. In addition, the annual listing fee
applicable to the Funds under Section 141 of the Amex Company Guide
will be based upon the year-end aggregate number of outstanding shares
in all Funds of the Trust listed on the Exchange.

Stop and Stop Limit Orders

    Amex Rule 154, Commentary .04(c) provides that stop and stop limit
orders to buy or sell a security (other than an option, which is
covered by Amex Rule 950(f) and Amex Rule 950--ANTE (f) and Commentary
thereto) the price of which is derivatively priced based upon another
security or index of securities, may with the prior approval of a Floor
Official, be elected by a quotation, as set forth in Commentary .04(c)
(i-v). The Exchange has designated Index Fund Shares, including the
Shares, as eligible for this treatment.\26\
---------------------------------------------------------------------------

    \26\ See Securities Exchange Act Release No. 29063 (April 10,
1991), 56 FR 15652 (April 17, 1991) at note 9, regarding the
Exchange's designation of equity derivative securities as eligible
for such treatment under Amex Rule 154, Commentary .04(c).
---------------------------------------------------------------------------

Amex Rule 190

    Amex Rule 190, Commentary .04 applies to Index Fund Shares listed
on the Exchange, including the Shares. Commentary .04 states that
nothing in Amex Rule 190(a) should be construed to restrict a
specialist registered in a security issued by an investment company
from purchasing and redeeming the listed security, or securities that
can be subdivided or converted into the listed security, from the
issuer as appropriate to facilitate the maintenance of a fair and
orderly market.

Prospectus Delivery

    The Exchange, in an Information Circular to Exchange members and
member organizations, prior to the commencement of trading, will inform
members and member organizations, regarding the application of
Commentary .03 to Amex Rule 1000A to the Funds. The Circular will
further inform members and member organizations of the prospectus and/
or Product Description delivery requirements that apply to the Funds.
The Application included a request that the exemptive order also grant
relief from section 24(d) of the 1940 Act. Any Product Description used
in reliance on section 24(d) exemptive relief will comply with all
representations and conditions set forth in the Application.

Trading Halts

    In addition to other factors that may be relevant, the Exchange may
consider factors such as those set forth in Rule 918C(b) in exercising
its discretion to halt or suspend trading in Index Fund Shares. These
factors would include, but are not limited to, (1) the extent to which
trading is not occurring in securities comprising an Underlying Index
and/or the Financial Instruments of a Fund; or (2) whether other
unusual conditions or circumstances detrimental to the maintenance of a
fair and orderly market are present. (See Amex Rule 918C). In the case
of the Financial Instruments held by a Fund, the Exchange represents
that a notification procedure will be implemented so that timely notice
from the Advisor is received by the Exchange when a particular
Financial Instrument is in default or shortly to be in default.
Notification from the Advisor will be made by phone, facsimile, or e-
mail. The Exchange would then determine on a case-by-case basis whether
a default of a particular Financial Instrument justifies a trading halt
of the Shares. Trading in shares of the Funds will also be halted if
the circuit breaker parameters under Amex Rule 117 have been reached.
If the NAV is not disseminated to all market participants at the same
time, the Exchange will halt trading in the Shares of the Funds.\27\
---------------------------------------------------------------------------

    \27\ See Amendment No. 2. However, if the Fund temporarily does
not disseminate the NAV to all market participants at the same time,
the Exchange will immediately contact Commission staff to discuss
measures that may be appropriate under the circumstances. Id.
---------------------------------------------------------------------------

Suitability

    Prior to commencement of trading, the Exchange will issue an
Information Circular to its members and member organizations providing
guidance with regard to member firm compliance responsibilities
(including suitability obligations) when effecting transactions in the
Shares and highlighting the special risks and characteristics of the
Funds and Shares as well as applicable Exchange rules.
    This Information Circular will set forth the requirements relating
to Commentary .05 to Amex Rule 411 (Duty to Know and Approve
Customers). Specifically, the Information Circular will remind members
of their obligations in recommending transactions in the Shares so that
members have a reasonable basis to believe that (1) the recommendation
is suitable for a customer given reasonable inquiry concerning the
customer's investment objectives, financial situation, needs, and any
other information known by such member; and (2) that the customer can
evaluate the special characteristics, and is able to bear the financial
risks, of such investment. In connection with the suitability
obligation, the Information Circular will also provide that members
make reasonable efforts to obtain the following information: (1) The
customer's financial status; (2) the customer's tax status; (3) the
customer's investment objectives; and (4) such other information used
or considered to be reasonable by such member or registered
representative in making recommendations to the customer.

Purchases and Redemptions in Creation Unit Size

    In the Information Circular referenced above, members and member
organizations will be informed that procedures for purchases and
redemptions of Shares in Creation Unit Size are described in each
Fund's prospectus and SAI, and that Shares are not individually
redeemable but are redeemable only in Creation Unit Size aggregations
or multiples thereof.

Surveillance

    The Exchange represents that its surveillance procedures are
adequate to properly monitor the trading of the Shares. Specifically,
the Amex will rely on its existing surveillance procedures governing
Index Fund Shares, which have been deemed adequate under the Act. In
addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.

Hours of Trading/Minimum Price Variation

    The Funds will trade on the Amex until 4:15 p.m. ET each business
day. Shares will trade with a minimum price variation of $.01.

III. Commission's Findings

    After careful consideration, the Commission finds that the proposed
rule change, as amended, is consistent with section 6 of the Act,\28\
and the rules and regulations thereunder, applicable to a national
securities exchange.\29\ The Commission believes that the Exchange's
proposed listing standards, trading rules, suitability and disclosure
rules for the Funds are consistent with the Act.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78f(b).
    \29\ In approving this proposal, the Commission has considered
its impact on efficiency, competition, and capital formation. 15
U.S.C. 78c(f).
---------------------------------------------------------------------------

A. Surveillance

    The Commission believes that because the Underlying Indexes are
broad-based and are composed of securities having significant trading
volumes and market capitalization, improper trading practices in the
Shares and the ability to use the Shares to manipulate the underlying
securities will be limited. Moreover, the issuers of the securities
comprising the Underlying Indexes are subject to reporting requirements
under the Act, and all of the component stocks are either listed or
traded on, or traded through the facilities of, U.S. securities
markets, and thus subject to real-time transaction reporting, which
should further deter manipulation.

B. Dissemination of Information about the Shares

    In approving the Funds for trading on the Amex, the Commission
notes that the Underlying Indexes are broad-based, widely-disseminated
indexes, which underlie numerous listed products. These index values
are widely-disseminated on a real-time basis at least every 15 seconds
throughout the trading day during the period in which the Shares will
trade on Amex. Additionally, the Commission notes that the Exchange
will disseminate through the facilities of CTA at least every 15
seconds a calculation of the IIV, along with an updated market value of
the Shares. Comparing these two figures will help investors to
determine whether, and to what extent, the Shares may be selling at a
premium or discount to NAV and thus will facilitate arbitrage of the
Shares in relation to the Index component securities.
    The Commission also notes that the Trust's or Advisor's Web site
and/or that of the Exchange, which is and will be publicly accessible
at no charge, will contain the Shares' prior business day NAV, the
reported closing price, and a calculation of the premium or discount of
such price in relation to the closing NAV.
    The Funds' NAV and total portfolio composition will be disclosed to
all market participants at the same time on the Web site of the Trust
(http://www.proshares.com). The Commission believes that such

disclosure is reasonably designed to facilitate a functional arbitrage
mechanism and mitigate the risks of improper market activity that could
arise from inconsistent disclosure of information.

C. Listing and Trading

    The Commission finds that the Exchange's proposed rules and

procedures for the listing and trading of the Shares are consistent
with the Act. Shares will trade as equity securities subject to Amex
rules including, among others, rules governing trading halts,
specialist activities, stop and stop limit orders, prospectus delivery,
and customer suitability requirements. In addition, the Shares will be
subject to Amex listing and delisting/suspension rules and procedures
governing the trading of Index Fund Shares on the Exchange. The
Commission believes that listing and delisting criteria for the Shares
should help to maintain a minimum level of liquidity and therefore
minimize the potential for manipulation of the Shares. Finally, the
Commission believes that the information circular the Exchange will
distribute will inform members and member organizations about the
terms, characteristics, and risks in trading the Shares.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning Amendment No. 2, including whether the amendment
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-Amex-2006-41 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Amex-2006-41. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room. 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-Amex-2006-41 and should be submitted on or before July 21, 2006.

V. Accelerated Approval

    The changes proposed by Amendment No. 2 are designed to ensure that
certain material information--i.e., the NAV for the Trust--is made
available to all market participants at the same time. The Commission
believes that these proposed changes strengthen the proposed rule
change and do not raise any new regulatory issues. Therefore, the
Commission finds good cause to approve Amendment No. 2 to the proposed
rule change prior to the 30th day after the amendment is published for
comment in the Federal Register.

VI. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\30\ that the proposed rule change, as amended, (SR-Amex-2006-41)
is hereby approved, and that Amendment No. 2 to the proposed rule
change be, and hereby is, approved on an accelerated basis.
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\31\
---------------------------------------------------------------------------

    \31\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Nancy M. Morris,
Secretary.
[FR Doc. 06-5907 Filed 6-29-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 77, Number 135 (Friday, July 13, 2012)]
[Notices]
[Pages 41403-41404]
[FR Doc No: 2012-17160]

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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9700-3]

Meetings of the Local Government Advisory Committee and the Small
Communities Advisory Subcommittee (SCAS)

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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

SUMMARY: The Small Communities Advisory Subcommittee (SCAS) will meet
via teleconference on Tuesday, July 24, 2012, 2:30 p.m.-4 p.m. (ET).
The Subcommittee will discuss sustainable communities, decentralized
wastewater treatment, and other issues and recommendations regarding
environmental issues affecting small communities. The Local Government
Advisory Committee (LGAC) will meet via teleconference on Tuesday, July
31, 2012, 1 p.m.-2 p.m. (EDT). The Committee will discuss air quality
issues, water quality issues, environmental justice and/or Title VI,
and other environmental issues of importance to local governments.

ADDRESSES: EPA's Local Government Advisory Committee meetings will be
held via teleconference. Meeting summaries will be available after the
meeting online at www.epa.gov/ocir/scas_lgac/lgac_index.htm and can
be obtained by written request to the DFO.

FOR FURTHER INFORMATION CONTACT: Local Government Advisory Committee
(LGAC) contact Frances Eargle at<PHONE_NUMBER> or email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Small Communities Advisory Subcommittee
(SCAS) will meet via teleconference on Tuesday, July 24, 2012, 2:30
p.m.-4 p.m. (ET). The Subcommittee will discuss sustainable
communities, decentralized wastewater treatment, and other issues and
recommendations regarding environmental issues affecting small
communities. This is an open meeting and all interested persons are
invited to participate. The Subcommittee will hear comments from the
public between 2:35 p.m.-2:45 p.m. on Tuesday, July 24, 2012.
Individuals or organizations wishing to address the Committee will be
allowed a maximum of five minutes to present their point of view. Also,
written comments should be submitted electronically to
<EMAIL_ADDRESS>Please contact the Designated Federal Officer
(DFO) at the number listed below to schedule a time on the agenda. Time
will be allotted on a first-come first-serve basis, and the total
period for comments may be extended if the number of requests for
appearances requires it. The Local Government Advisory Committee (LGAC)
will meet via teleconference on Tuesday, July 31, 2012, 1 p.m.-2 p.m.
(EDT). The Committee will discuss air quality issues, water quality
issues, environmental justice and/or Title VI, and other environmental
issues of importance to local governments. This is an open meeting and
all interested persons are invited to participate. The Committee will
hear comments from the public between 1:15 p.m.-1:25 p.m. (EDT) on
Tuesday, July 31, 2012. Individuals or organizations wishing to address
the Committee will be allowed a maximum of five minutes to present
their point of view. Also, written comments should be submitted
electronically to<EMAIL_ADDRESS>Please contact the Designated
Federal Officer (DFO) at the number listed below to schedule a time on
the agenda. Time will be allotted on a first-come first-serve basis,
and the total period for comments may be extended if the number of
requests for appearances requires it.
    Information Services for Those with Disabilities: For information
on access or services for individuals with disabilities, please contact
Frances Eargle at<PHONE_NUMBER> or<EMAIL_ADDRESS>To request
accommodation of a disability, please request it 10 days prior to the
meeting,

to give EPA as much time as possible to process your request.

    Dated: July 2, 2012.
Frances Eargle,
Designated Federal Officer, Local Government Advisory Committee.
[FR Doc. 2012-17160 Filed 7-12-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 82, Number 126 (Monday, July 3, 2017)]
[Rules and Regulations]
[Pages 30743-30745]
[FR Doc No: 2017-13978]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0476]
RIN 1625-AA00

Safety Zone; Canalside's 4th of July Celebration; Buffalo Outer
Harbor, Buffalo, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Buffalo Outer Harbor, Buffalo, NY. This safety zone is intended to
restrict vessels from a portion of the Buffalo Outer Harbor during
Canalside's 4th of July Celebration fireworks display on July 4, 2017.
This temporary safety zone is necessary to protect mariners and vessels
from the navigational hazards associated with a fireworks display.
Entry of vessels or persons into this zone is prohibited unless
specifically authorized by the Captain of the Port Buffalo.

DATES: This rule is effective from 9:45 p.m. to 10:45 p.m. on July 4,
2017.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0476 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions about this
rulemaking, call or email LT Michael Collet, Chief of Waterways
Management, U.S. Coast Guard Sector Buffalo; telephone<PHONE_NUMBER>,
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 doing so would be impracticable. The
final details of this event were not known to the Coast Guard until
there was insufficient time remaining before the event to publish an
NPRM. Thus, delaying the effective date of this rule to wait for a
comment period to run would be impracticable because it would inhibit
the Coast Guard's ability to protect mariners and vessels from the
hazards associated with a maritime fireworks display. Therefore, under
5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists
for making this temporary rule effective less than 30 days after
publication in the Federal Register.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Captain of the Port Buffalo (COTP) has determined that a
maritime fireworks show presents significant risks to public safety and
property. Such hazards include premature and accidental detonations,
dangerous projectiles, and falling or burning debris. This rule is
needed to protect personnel, vessels,

and the marine environment in the navigable waters within the safety
zone while the fireworks show is taking place.

IV. Discussion of the Rule

    This rule establishes a safety zone on July 4, 2017 from 9:45 p.m.
to 10:45 p.m. The safety zone will encompass all waters of the Buffalo
Outer Harbor; Buffalo, NY within a 560-foot radius of position
42[deg]52'10.75'' N., 078[deg]52'56.01'' W. (NAD 83).
    Entry into, transiting, or anchoring within the safety zone is
prohibited unless authorized by the Captain of the Port Buffalo or his
designated on-scene representative. The Captain of the Port or his
designated on-scene representative may be contacted via VHF Channel 16.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 13771 (``Reducing
Regulation and Controlling Regulatory Costs''), directs agencies to
reduce regulation and control regulatory costs and provides that ``for
every one new regulation issued, at least two prior regulations be
identified for elimination, and that the cost of planned regulations be
prudently managed and controlled through a budgeting process.''
    This rule has not been designated a ``significant regulatory
action,'' under Executive Order 12866. Accordingly, it has not been
reviewed by the Office of Management and Budget.
    As this rule is not a significant regulatory action, this rule is
exempt from the requirements of Executive Order 13771. See OMB's
Memorandum titled ``Interim Guidance Implementing Section 2 of the
Executive Order of January 30, 2017 titled `Reducing Regulation and
Controlling Regulatory Costs''' (February 2, 2017).
    We conclude that this rule is not a significant regulatory action
because we anticipate that it will have minimal impact on the economy,
will not interfere with other agencies, will not adversely alter the
budget of any grant or loan recipients, and will not raise any novel
legal or policy issues. The safety zone created by this rule will be
relatively small and enforced for a relatively short time. Also, the
safety zone is designed to minimize its impact on navigable waters.
Furthermore, the safety zone has been designed to allow vessels to
transit around it. Thus, restrictions on vessel movement within that
particular area are expected to be minimal. Under certain conditions,
moreover, vessels may still transit through the safety zone when
permitted by the Captain of the Port.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. 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.

F. 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 (42 U.S.C. 4321-4370f), and have determined that it
is one of a category of actions that do not individually or
cumulatively have a significant effect on

the human environment. This rule establishes a temporary safety zone.
It is categorically excluded under section 2.B.2, figure 2-1, paragraph
34(g) of the Instruction, which pertains to establishment of safety
zones. A Record of Environmental Consideration (REC) supporting this
determination is available in the docket where indicated in the
ADDRESSES section of this preamble.

G. 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.

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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T09-0476 to read as follows:

Sec.  165.T09-0476  Safety Zone; Canalside's 4th of July Celebration,
Buffalo Outer Harbor, Buffalo, NY.

    (a) Location. This zone will encompass all waters of the Buffalo
Outer Harbor, Buffalo, NY within a 560-foot radius of position
42[deg]52'10.76'' N., 078[deg]52'56.01'' W. (NAD 83).
    (b) Enforcement period. This regulation is effective on July 4,
2017 from 9:45 p.m. until 10:45 p.m.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23, entry into, transiting, or anchoring within this safety
zone is prohibited unless authorized by the Captain of the Port Buffalo
or his designated on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may
be permitted by the Captain of the Port Buffalo or his designated on-
scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port
Buffalo is any Coast Guard commissioned, warrant or petty officer who
has been designated by the Captain of the Port Buffalo to act on his
behalf.
    (4) Vessel operators desiring to enter or operate within the safety
zone must contact the Captain of the Port Buffalo or his on-scene
representative to obtain permission to do so. The Captain of the Port
Buffalo or his on-scene representative may be contacted via VHF Channel
16. Vessel operators given permission to enter or operate in the safety
zone must comply with all directions given to them by the Captain of
the Port Buffalo, or his on-scene representative.

    Dated: June 28, 2017.
J.S. Dufresne,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2017-13978 Filed 6-30-17; 8:45 am]
BILLING CODE 9110-04-P