[Federal Register Volume 77, Number 215 (Tuesday, November 6, 2012)]
[Notices]
[Pages 66651-66658]
[FR Doc No: 2012-27001]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30254; 812-13974]

Salient Advisors, L.P. and MarketShares ETF Trust; Notice of
Application

October 31, 2012

AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from sections
2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the
Act, and under sections 6(c) and 17(b) of the Act for an exemption from
sections 17(a)(1) and (2) of the Act, and under section 12(d)(1)(J) for
an exemption from sections 12(d)(1)(A) and (B) of the Act.

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Applicants: Salient Advisors, L.P. (``Salient'') and MarketShares ETF
Trust (the ``Trust'').

Summary of Application: Applicants request an order that permits: (a)
Actively-managed series of the Trust to issue shares (``Shares'')
redeemable in large aggregations only (``Creation Units''); (b)
secondary market transactions in Shares to occur at negotiated market
prices; (c) certain series to pay redemption proceeds, under certain
circumstances, more than seven days after the tender of Shares for
redemption; (d) certain affiliated persons of the series to deposit
securities into, and receive securities from, the series in connection
with the purchase and redemption of Creation Units; and (e) certain
registered management investment companies and unit investment trusts
outside of the same group of investment companies as the series to
acquire Shares.

Filing Dates: The application was filed on November 14, 2011, and
amended on

May 9, 2012, and October 19, 2012. Applicants have agreed to file an
amendment during the notice period, the substance of which is reflected
in this notice.

Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on November 26, 2012, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange
Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants, c/
o Stacy L. Fuller, Esq., K&L Gates LLP, 1601 K Street NW., Washington,
DC 20006.

FOR FURTHER INFORMATION CONTACT: Mark N. Zaruba, Senior Counsel, at
(202) 551-6878 or Mary Kay Frech, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or an applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Applicants' Representations

    1. The Trust will be registered as an open-end management
investment company under the Act and is organized as a Delaware
statutory trust. The Trust will initially offer one series, the Salient
MLP and Energy Infrastructure ETF (the ``Initial Fund''). The
investment objective of the Initial Fund will be to seek to provide a
high level of total return with an emphasis on making quarterly cash
distributions to shareholders. Salient, a Texas limited partnership, is
registered as an investment adviser under the Investment Advisers Act
of 1940 (``Advisers Act''), and will serve as investment adviser to the
Initial Fund.
    2. Applicants request that the order apply to the Initial Fund and
any future series of the Trust and to any other open-end investment
company or series thereof that is an actively managed exchange-traded
fund (``ETF'') and (a) is advised by Salient or an entity controlling,
controlled by, or under common control with Salient (each such entity
and any successor thereto included in the term ``Adviser'') \1\ and (b)
complies with the terms and conditions of the application
(collectively, ``Future Funds,'' and together with the Initial Fund,
the ``Funds'').\2\ The Adviser may enter into subadvisory agreements
with investment advisers to act as subadvisers with respect to the
Funds (``Subadvisers''). Any Subadviser will be registered under the
Advisers Act. A registered broker-dealer (``Broker) under the
Securities Exchange Act of 1934 (``Exchange Act''), which may be an
affiliate of the Adviser, will serve as the principal underwriter and
distributor for each of the Funds (``Distributor'').
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    \1\ A successor is limited to an entity or entities that result
from a reorganization into another jurisdiction or a change in the
type of business organization. Any Adviser will be registered as an
investment adviser under the Advisers Act.
    \2\ All entities that currently intend to rely on the order are
named as applicants. Any entity that relies on the order in the
future will comply with the terms and conditions of the application.
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    3. Each Fund will consist of a portfolio of securities (including
fixed income securities and/or equity securities) and/or currencies
traded in the U.S. or non-U.S. markets (``Portfolio Instruments''). To
the extent consistent with other investment limitations, the Funds may
invest all of their assets in mortgage- or asset-backed securities,
including ``to-be-announced transactions'' or ``TBA Transactions,'' \3\
and may engage in forward commitment transactions.\4\ Funds may also
invest in ``Depositary Receipts.'' \5\ Certain Funds may hold non-U.S.
investments and are referred to as ``Global Funds.'' No Fund relying on
the order will invest in options contracts, futures contracts or swap
agreements.
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    \3\ A TBA Transaction is a method of trading mortgage-backed
securities. In a TBA Transaction, the buyer and seller agree upon
general trade parameters such as agency, settlement date, par amount
and price. The actual pools delivered generally are determined two
days prior to the settlement date.
    \4\ In a forward commitment transaction, the buyer/seller enters
into a contract to purchase/sell, for example, specific securities
for a fixed price at a future date beyond normal settlement time.
    \5\ Depositary Receipts are typically issued by a financial
institution (a ``depositary'') and evidence ownership in a security
or pool of securities that have been deposited with the depositary.
A Fund will not invest in any Depositary Receipts that the Adviser
deems to be illiquid or for which pricing information is not readily
available. No affiliated persons of applicants will serve as the
depositary bank for any Depositary Receipts held by a Fund.
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    4. Applicants also request that any exemption under section
12(d)(1)(J) of the Act from sections 12(d)(1)(A) and (B) apply to: (1)
Any Fund as well as any principal underwriter for such Fund and any
Brokers selling Shares of such a Fund to an Investing Fund (as defined
below); and (2) each management investment company or unit investment
trust registered under the Act that is not part of the same ``group of
investment companies,'' within the meaning of section 12(d)(1)(G)(ii)
of the Act, as the Funds, and that enters into a FOF Participation
Agreement (as defined below) with a Fund (such management investment
companies, ``Investing Management Companies,'' such unit investment
trusts, ``Investing Trusts,'' and Investing Management Companies and
Investing Trusts together are ``Investing Funds''). Investing Funds do
not include the Funds.\6\
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    \6\ An Investing Fund may rely on the order only to invest in a
Fund and not in any other registered investment company.
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    5. Applicants anticipate that a Creation Unit will consist of at
least 25,000 Shares and that the trading price of a Share will range
from $10 to $25. All orders to purchase Creation Units must be placed
with the Distributor by or through an ``Authorized Participant,'' which
is either (a) a Broker or other participant in the Continuous Net
Settlement System of the National Securities Clearing Corporation
(``NSCC'', and such clearing process the ``NSCC Process''), or (b) a
participant in the Depository Trust Company clearing process (``DTC,''
such participant ``DTC Participant,'' and such clearing process, the
``DTC Process''), which, in either case, has executed an agreement with
the Distributor with respect to the purchase and redemption of Creation
Units.
    6. Shares will be purchased and redeemed in Creation Units and
generally on an in-kind basis. Except where the purchase or redemption
will include cash under the limited circumstances specified below,
purchasers will be required to purchase Creation Units by making an in-
kind deposit of specified instruments (``Deposit Instruments''), and
shareholders redeeming their Shares will receive an in-kind transfer of
specified instruments (``Redemption Instruments'').\7\ On any given
Business

Day \8\ the names and quantities of the instruments that constitute the
Deposit Instruments and the names and quantities of the instruments
that constitute the Redemption Instruments will be identical, and these
instruments may be referred to, in the case of either a purchase or a
redemption, as the ``Creation Basket.'' In addition, the Creation
Basket will correspond pro rata to the positions in a Fund's portfolio
(including cash positions),\9\ except: (a) In the case of bonds, for
minor differences when it is impossible to break up bonds beyond
certain minimum sizes needed for transfer and settlement; (b) for minor
differences when rounding is necessary to eliminate fractional shares
or lots that are not tradeable round lots; \10\ or (c) TBA Transactions
and other positions that cannot be transferred in kind \11\ will be
excluded from the Creation Basket.\12\ If there is a difference between
the net asset value (``NAV'') attributable to a Creation Unit and the
aggregate market value of the Creation Basket exchanged for the
Creation Unit, the party conveying instruments with the lower value
will also pay to the other an amount in cash equal to that difference
(the ``Cash Amount'').
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    \7\ The Funds must comply with the federal securities laws in
accepting Deposit Instruments and satisfying redemptions with
Redemption Instruments, including that the Deposit Instruments and
Redemption Instruments are sold in transactions that would be exempt
from registration under the Securities Act of 1933 (``Securities
Act''). In accepting Deposit Instruments and satisfying redemptions
with Redemption Instruments that are restricted securities eligible
for resale pursuant to Rule 144A under the Securities Act, the Funds
will comply with the conditions of Rule 144A.
    \8\ Each Fund will sell and redeem Creation Units on any day the
Fund is open, including as required by section 22(e) of the Act
(each, a ``Business Day'').
    \9\ The portfolio used for this purpose will be the same
portfolio used to calculate the Fund's NAV for that Business Day.
    \10\ A tradeable round lot for a security will be the standard
unit of trading in that particular type of security in its primary
market.
    \11\ This includes instruments that can be transferred in kind
only with the consent of the original counterparty to the extent the
Fund does not intend to seek such consents.
    \12\ Because these instruments will be excluded from the
Creation Basket, their value will be reflected in the determination
of the Cash Amount (defined below).
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    7. Purchases and redemptions of Creation Units may be made in whole
or in part on a cash basis, rather than in kind, solely under the
following circumstances: (a) To the extent there is a Cash Amount, as
described above; (b) if, on a given Business Day, a Fund announces
before the open of trading that all purchases, all redemptions or all
purchases and redemptions on that day will be made entirely in cash;
(c) if, upon receiving a purchase or redemption order from an
Authorized Participant, a Fund determines to require the purchase or
redemption, as applicable, to be made entirely in cash; (d) if, on a
given Business Day, a Fund requires all Authorized Participants
purchasing or redeeming Shares on that day to deposit or receive (as
applicable) cash in lieu of some or all of the Deposit Instruments or
Redemption Instruments, respectively, solely because: (i) Such
instruments are not eligible for transfer through either the NSCC
Process or DTC Process; or (ii) in the case of Global Funds, such
instruments are not eligible for trading due to local trading
restrictions, local restrictions on securities transfers or other
similar circumstances; or (e) if a Fund permits an Authorized
Participant to deposit or receive (as applicable) cash in lieu of some
or all of the Deposit Instruments or Redemption Instruments,
respectively, solely because: (i) such instruments are, in the case of
the purchase of a Creation Unit, not available in sufficient quantity;
(ii) such instruments are not eligible for trading by an Authorized
Participant or the investor on whose behalf the Authorized Participant
is acting; or (iii) a holder of Shares of a Global Fund would be
subject to unfavorable income tax treatment if the holder receives
redemption proceeds in kind.\13\
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    \13\ A ``custom order'' is any purchase or redemption of Shares
made in whole or in part on a cash basis in reliance on clause
(e)(i) or (e)(ii).
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    8. Each Business Day, before the open of trading on a national
securities exchange, as defined in section 2(a)(26) of the Act (``Stock
Exchange''), on which Shares are listed and traded, each Fund will
cause to be published through the NSCC the names and quantities of the
instruments comprising the Creation Basket, as well as the estimated
Cash Amount (if any), for that day. The published Creation Basket will
apply until a new Creation Basket is announced on the following
Business Day, and there will be no intra-day changes to the Creation
Basket except to correct errors in the published Creation Basket. The
Stock Exchange will disseminate every 15 seconds throughout the trading
day an amount representing, on a per Share basis, the sum of the
current value of the Portfolio Instruments that were publicly disclosed
prior to the commencement of trading in Shares on the Stock Exchange.
    9. An investor purchasing or redeeming a Creation Unit from a Fund
will be charged a fee (``Transaction Fee'') to prevent the dilution of
the interests of the remaining shareholders resulting from costs in
connection with the purchase or sale of Creation Units.\14\ All orders
to purchase Creation Units must be placed with the Distributor by or
through an Authorized Participant and the Distributor will transmit
such orders to the Funds. The Distributor will be responsible for
maintaining records of both the orders placed with it and the
confirmations of acceptance furnished by it.
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    \14\ Cash purchases and redemptions of Shares may involve a
higher Transaction Fee to cover the costs of purchasing and selling
the applicable Deposit and Redemption Instruments. In all cases, the
Transaction Fee will be limited in accordance with requirements of
the Commission applicable to management investment companies
offering redeemable securities.
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    10. Purchasers of Shares in Creation Units may hold such Shares or
may sell such Shares into the secondary market. Shares will be listed
and traded at negotiated prices on the Stock Exchange. Applicants
expect that one or more the Stock Exchange specialists
(``Specialists'') or market makers (``Market Makers''), will be
assigned to the Shares.\15\ The price of Shares trading on the Stock
Exchange will be based on a current bid-offer in the secondary market.
Purchases and sales of Shares in the secondary market will not involve
a Fund and will be subject to customary brokerage commissions and
charges.
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    \15\ If Shares are listed on The NASDAQ Stock Market LLC
(``Nasdaq''), no particular Market Maker would be contractually
obligated to make a market in Shares. However, the listing
requirements on Nasdaq stipulate that at least two Market Makers
must be registered in Shares to maintain a listing. Registered
Market Makers are required to make a continuous two-sided market or
subject themselves to regulatory sanctions. No Market Maker will be
an affiliated person, or an affiliated person of an affiliated
person, of the Funds, except within the meaning of section
2(a)(3)(A) or (C) of the Act due solely to ownership of shares.
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    11. Applicants expect that purchasers of Creation Units will
include institutional investors and arbitrageurs. Specialists and
Market Makers, in providing a fair and orderly secondary market for
Shares, also may purchase Creation Units for use in their own market
making activities. Applicants expect that secondary market purchasers
of Shares will include both institutional and retail investors.\16\
Applicants believe that the structure and operation of the Funds will
be designed to enable efficient arbitrage and, thereby, minimize the
probability that Shares will trade at a material premium or discount to
a Fund's NAV.
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    \16\ Shares will be registered in book-entry form only. DTC or
its nominee will be the registered owner of all outstanding Shares.
Beneficial ownership of Shares will be shown on the records of DTC
or DTC Participants.
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    12. Shares will not be individually redeemable and owners of Shares
may acquire those Shares from a Fund, or tender such shares for
redemption to a Fund, in Creation Units only. To redeem, an investor
must accumulate enough Shares to constitute a Creation Unit. Redemption
requests must be

placed by or through an Authorized Participant. As discussed above,
redemptions of Creation Units will generally be made on an in-kind
basis, subject to certain specified exceptions under which redemptions
may be made in whole or in part on a cash basis, and will be subject to
a Transaction Fee.\17\
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    \17\ See supra note 14.
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    13. Neither the Trust nor any Fund will be advertised or marketed
or otherwise held out as a traditional open-end investment company or
mutual fund. Instead, each Fund will be marketed as an ``actively-
managed exchange-traded fund.'' All marketing materials that describe
the features or method of obtaining, buying, or selling Creation Units,
or Shares traded on the Stock Exchange, or refer to redeemability, will
prominently disclose that Shares are not individually redeemable and
that the owners of Shares may acquire those Shares from a Fund or
tender those Shares for redemption to the Fund in Creation Units only.
    14. The Funds' Web site (``Web site''), which will be publicly
available prior to the public offering of Shares, will include each
Fund's prospectus (``Prospectus''). The Web site will contain, on a per
Share basis for each Fund, the prior Business Day's NAV and the market
closing price or mid-point of the bid/ask spread at the time of
calculation of such NAV (``Bid/Ask Price''), and a calculation of the
premium or discount of the market closing price or the Bid/Ask Price
against such NAV. On each Business Day, prior to the commencement of
trading in Shares on the Stock Exchange, each Fund shall post on the
Web site the identities and quantities of the Portfolio Instruments and
other assets held by the Fund that will form the basis for the
calculation of the Fund's calculation of NAV at the end of that
Business Day.\18\
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    \18\ Under accounting procedures followed by the Funds, trades
made on the prior Business Day (``T'') will be booked and reflected
in NAV on the current Business Day (T+1). Accordingly, the Funds
will be able to disclose at the beginning of the Business Day the
portfolio that will form the basis for the NAV calculation at the
end of the Business Day.
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Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act
granting an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e)
of the Act and rule 22c-1 under the Act; and under sections 6(c) and
17(b) of the Act granting an exemption from sections 17(a)(1) and (2)
of the Act, and under section 12(d)(1)(J) for an exemption from
sections 12(d)(1)(A) and (B) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt
any person, security or transaction, or any class of persons,
securities or transactions, from any provision of the Act, if and to
the extent that such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Section 17(b) of the Act authorizes the Commission to exempt a proposed
transaction from section 17(a) of the Act if evidence establishes that
the terms of the transaction, including the consideration to be paid or
received, are reasonable and fair and do not involve overreaching on
the part of any person concerned, and the proposed transaction is
consistent with the policies of the registered investment company and
the general provisions of the Act. Section 12(d)(1)(J) of the Act
provides that the Commission may exempt any person, security, or
transaction, or any class or classes of persons, securities or
transactions, from any provision of section 12(d)(1) if the exemption
is consistent with the public interest and the protection of investors.

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

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

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

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

Section 22(e) of the Act

    7. Section 22(e) generally prohibits a registered investment
company from

suspending the right of redemption or postponing the date of payment of
redemption proceeds for more than seven days after the tender of a
security for redemption. Applicants observe that the settlement of
redemptions of Creation Units of the Global Funds is contingent not
only on the settlement cycle of the U.S. securities markets but also on
the delivery cycles present in foreign markets for underlying foreign
Portfolio Instruments in which those Funds invest. Applicants have been
advised that, under certain circumstances, the delivery cycles for
transferring Portfolio Instruments to redeeming investors, coupled with
local market holiday schedules, will require a delivery process of up
to fourteen (14) calendar days. Applicants therefore request relief
from section 22(e) in order to provide payment or satisfaction of
redemptions within a longer number of calendar days as required for
such payment or satisfaction in the principal local markets where
transactions in the Portfolio Instruments of each Global Fund
customarily clear and settle, but in all cases no later than fourteen
(14) days following the tender of a Creation Unit. With respect to
Future Funds that are Global Funds, applicants seek the same relief
from section 22(e) only to the extent that circumstances exist similar
to those described in the application. Except as disclosed in the SAI
for a Fund, deliveries of redemption proceeds for Global Funds are
expected to be made within seven days.\19\
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    \19\ Rule 15c6-1 under the Exchange Act requires that most
securities transactions be settled within three business days of the
trade. Applicants acknowledge that no relief obtained from the
requirements of section 22(e) will affect any obligations applicants
may have under rule 15c6-1.
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    8. Applicants state that section 22(e) was designed to prevent
unreasonable, undisclosed or unforeseen delays in the actual payment of
redemption proceeds. Applicants assert that allowing redemption
payments for Creation Units of a Fund to be made within a maximum of
fourteen (14) calendar days would not be inconsistent with the spirit
and intent of section 22(e). Applicants state that the Prospectus and/
or SAI will identify those instances in a given year where, due to
local holidays, more than seven calendar days, up to a maximum of
fourteen (14) calendar days, will be needed to deliver redemption
proceeds and will list such holidays. Applicants are not seeking relief
from section 22(e) for Global Funds that do not effect redemptions of
Creation Units in-kind.

Section 12(d)(1) of the Act

    9. Section 12(d)(1)(A) of the Act prohibits a registered investment
company from acquiring shares of an investment company if the
securities represent more than 3% of the total outstanding voting stock
of the acquired company, more than 5% of the total assets of the
acquiring company, or, together with the securities of any other
investment companies, more than 10% of the total assets of the
acquiring company. Section 12(d)(1)(B) of the Act prohibits a
registered open-end investment company, its principal underwriter, or
any other broker or dealer from selling its shares to another
investment company if the sale will cause the acquiring company to own
more than 3% of the acquired company's voting stock, or if the sale
will cause more than 10% of the acquired company's voting stock to be
owned by investment companies generally.
    10. Applicants request relief to permit Investing Funds to acquire
Shares in excess of the limits in section 12(d)(1)(A) of the Act and to
permit the Funds, their principal underwriters and any Broker to sell
Shares to Investing Funds in excess of the limits in section
12(d)(l)(B) of the Act.
    11. Applicants assert that the proposed transactions will not lead
to any of the abuses that section 12(d)(1) was designed to prevent.
Applicants submit that the proposed conditions to the requested relief
address the concerns underlying the limits in section 12(d)(1), which
include concerns about undue influence, excessive layering of fees and
overly complex structures.
    12. Applicants submit that their proposed conditions address any
concerns regarding the potential for undue influence. To limit the
control that an Investing Fund may have over a Fund, applicants propose
a condition prohibiting the adviser of an Investing Management Company
(``Investing Fund Adviser''), sponsor of an Investing Trust
(``Sponsor''), any person controlling, controlled by, or under common
control with the Investing Fund Adviser or Sponsor, and any investment
company or issuer that would be an investment company but for sections
3(c)(1) or 3(c)(7) of the Act that is advised or sponsored by the
Investing Fund Adviser, the Sponsor, or any person controlling,
controlled by, or under common control with the Investing Fund Adviser
or Sponsor (``Investing Fund's Advisory Group'') from controlling
(individually or in the aggregate) a Fund within the meaning of section
2(a)(9) of the Act. The same prohibition would apply to any subadviser
to an Investing Fund (``Investing Fund Subadviser''), any person
controlling, controlled by or under common control with the Investing
Fund Subadviser, and any investment company or issuer that would be an
investment company but for sections 3(c)(1) or 3(c)(7) of the Act (or
portion of such investment company or issuer) advised or sponsored by
the Investing Fund Subadviser or any person controlling, controlled by
or under common control with the Investing Fund Subadviser (``Investing
Fund's Subadvisory Group'').
    13. Applicants propose a condition to ensure that no Investing Fund
or Investing Fund Affiliate \20\ (except to the extent it is acting in
its capacity as an investment adviser to a Fund) will cause a Fund to
purchase a security in an offering of securities during the existence
of an underwriting or selling syndicate of which a principal
underwriter is an Underwriting Affiliate (``Affiliated Underwriting'').
An ``Underwriting Affiliate'' is a principal underwriter in any
underwriting or selling syndicate that is an officer, director, member
of an advisory board, Investing Fund Adviser, Investing Fund
Subadviser, employee or Sponsor of the Investing Fund, or a person of
which any such officer, director, member of an advisory board,
Investing Fund Adviser, Investing Fund Subadviser, employee or Sponsor
is an affiliated person (except any person whose relationship to the
Fund is covered by section 10(f) of the Act is not an Underwriting
Affiliate).
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    \20\ An ``Investing Fund Affiliate'' is any Investing Fund
Adviser, Investing Fund Subadviser, Sponsor, promoter and principal
underwriter of an Investing Fund, and any person controlling,
controlled by or under common control with any of these entities.
``Fund Affiliate'' is an investment adviser, promoter, or principal
underwriter of a Fund or any person controlling, controlled by or
under common control with any of these entities.
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    14. Applicants propose several conditions to address the potential
for layering of fees. Applicants note that the board of directors or
trustees (for any entity, the ``Board'') of any Investing Management
Company, including a majority of the directors or trustees who are not
``interested persons'' within the meaning of section 2(a)(19) of the
Act (for any Board, ``disinterested directors or trustees''), will be
required to find that the advisory fees charged under the contract are
based on services provided that will be in addition to, rather than
duplicative of, services provided under the advisory contract of any
Fund in which the Investing Management Company may invest. In addition,
an

Investing Fund Advisor, trustee of an Investing Trust (``Trustee'') or
Sponsor, as applicable, will waive fees otherwise payable to it by the
Investing Fund in an amount at least equal to any compensation
(including fees received pursuant to any plan adopted by a Fund under
rule 12b-1 under the Act) received from a Fund by the Investing Fund
Advisor, Trustee or Sponsor or an affiliated person of the Investing
Fund Advisor, Trustee or Sponsor, other than any advisory fees paid to
the Investing Fund Advisor, Trustee or Sponsor or its affiliated person
by a Fund, in connection with the investment by the Investing Fund in
the Fund. Applicants also state that any sales charges and/or service
fees charged with respect to shares of an Investing Fund will not
exceed the limits applicable to a fund of funds as set forth in NASD
Conduct Rule 2830.\21\
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    \21\ Any reference to NASD Conduct Rule 2830 includes any
successor or replacement rule that may be adopted by the Financial
Industry Regulatory Authority.
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    15. Applicants submit that the proposed arrangement will not create
an overly complex fund structure. Applicants note that a Fund will be
prohibited from acquiring securities of any investment company or
company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of
the limits contained in section 12(d)(1)(A) of the Act, except to the
extent permitted by exemptive relief from the Commission permitting the
Fund to purchase shares of other investment companies for short-term
cash management purposes.
    16. To ensure that an Investing Fund is aware of the terms and
conditions of the requested order, the Investing Funds must enter into
an agreement with the respective Funds (``FOF Participation
Agreement''). The FOF Participation Agreement will include an
acknowledgement from the Investing Fund that it may rely on the order
only to invest in a Fund and not in any other investment company.

Section 17(a) of the Act

    17. Section 17(a) of the Act generally prohibits an affiliated
person of a registered investment company, or an affiliated person of
such person (``Second Tier Affiliates''), from selling any security to
or purchasing any security from the company. Section 2(a)(3) of the Act
defines ``affiliated person'' to include any person directly or
indirectly owning, controlling, or holding with power to vote 5% or
more of the outstanding voting securities of the other person and any
person directly or indirectly controlling, controlled by, or under
common control with, the other person. Section 2(a)(9) of the Act
provides that a control relationship will be presumed where one person
owns more than 25% of another person's voting securities. The Funds may
be deemed to be controlled by the Adviser or an entity controlling,
controlled by or under common control with the Adviser and hence
affiliated persons of each other. In addition, the Funds may be deemed
to be under common control with any other registered investment company
(or series thereof) advised by the Adviser or an entity controlling,
controlled by or under common control with the Adviser (an ``Affiliated
Fund'').
    18. Applicants request an exemption under sections 6(c) and 17(b)
of the Act from sections 17(a)(1) and 17(a)(2) of the Act to permit in-
kind purchases and redemptions of Creation Units from the Funds by
persons that are affiliated persons or Second Tier Affiliates of the
Funds solely by virtue of one or more of the following: (a) holding 5%
or more, or more than 25%, of the Shares of the Trust of one or more
Funds; (b) having an affiliation with a person with an ownership
interest described in (a); or (c) holding 5% or more, or more than 25%,
of the shares of one or more Affiliated Funds. Applicants also request
an exemption in order to permit each Fund to sell Shares to and redeem
Shares from, and engage in the transactions that would accompany such
sales and redemptions with, any Investing Fund of which the Fund is an
affiliated person or Second-Tier Affiliate.\22\
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    \22\ Applicants anticipate that most Investing Funds will
purchase Shares in the secondary market and will not purchase or
redeem Creation Units directly from a Fund. Relief from section
17(a) is not required when an Investing Fund that is an affiliate or
Second Tier Affiliate of a Fund purchases or sells Shares in the
secondary market as such transactions are not principal transactions
with the Fund. However, the requested relief would apply to direct
sales of Shares in Creation Units by a Fund to an Investing Fund and
redemptions of those Shares in Creation Units. The requested relief
is intended to cover transactions that would accompany such sales
and redemptions. Applicants are not seeking relief from section
17(a) for, and the requested relief will not apply to, transactions
where a Fund could be deemed an affiliated person, or an affiliated
person of an affiliated person, of an Investing Fund because the
Adviser is also an investment adviser to that Investing Fund.
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    19. Applicants contend that no useful purpose would be served by
prohibiting such affiliated persons or Second Tier Affiliates from
acquiring or redeeming Creation Units through in-kind transactions.
Both the deposit procedures for in-kind purchases of Creation Units and
the redemption procedures for in-kind redemptions will be the same for
all purchases and redemptions. Deposit Instruments and Redemptions
Instruments will be valued in the same manner as the Portfolio
Instruments held by the relevant Fund. Applicants thus believe that in-
kind purchases and redemptions will not result in self-dealing or
overreaching of the Fund.
    20. Applicants also submit that the sale of Shares to and
redemption of Shares from an Investing Fund satisfies the standards for
relief under sections 17(b) and 6(c) of the Act. Applicants note that
any consideration paid for the purchase or redemption of Creation Units
directly from a Fund will be based on the NAV of the Fund.\23\ The FOF
Participation Agreement will require any Investing Fund that purchases
Creation Units directly from a Fund to represent that the purchase will
be in compliance with its investment restrictions and consistent with
the investment policies set forth in its registration statement.
Applicants also state that the proposed transactions are consistent
with the general purposes of the Act and appropriate in the public
interest.
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    \23\ Applicants acknowledge that the receipt of compensation by
(a) an affiliated person of an Investing Fund, or an affiliated
person of such person, for the purchase by the Investing Fund of
Shares of a Fund or (b) an affiliated person of a Fund, or an
affiliated person of such person, for the sale by the Fund of its
Shares to an Investing Fund, may be prohibited by section 17(e)(1)
of the Act. The FOF Participation Agreement also will include this
acknowledgment.
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Applicants' Conditions

    Applicants agree that any order of the Commission granting the
requested relief will be subject to the following conditions:
A. Actively Managed Exchange-Traded Fund Relief
    1. As long as a Fund operates in reliance on the requested order,
the Shares of the Fund will be listed on a Stock Exchange.
    2. Neither the Trust nor any Fund will be advertised or marketed as
an open-end investment company or a mutual fund. Any advertising
material that describes the purchase or sale of Creation Units or
refers to redeemability will prominently disclose that Shares are not
individually redeemable and that owners of the Shares may acquire those
Shares from the Fund and tender those Shares for redemption to the Fund
in Creation Units only.
    3. The Web site, which is and will be publicly accessible at no
charge, will contain, on a per Share basis, for each Fund the prior
Business Day's NAV and the market closing price or Bid/Ask Price, and a
calculation of the premium

or discount of the market closing price or Bid/Ask Price against such
NAV.
    4. On each Business Day, before commencement of trading in Shares
on the Stock Exchange, the Fund will disclose on its Web site the
identities and quantities of the Portfolio Instruments and other assets
held by the Fund that will form the basis for the Fund's calculation of
NAV at the end of the Business Day.
    5. The Adviser or any Subadviser, directly or indirectly, will not
cause any Authorized Participant (or any investor on whose behalf an
Authorized Participant may transact with the Fund) to acquire any
Deposit Instrument for the Fund through a transaction in which the Fund
could not engage directly.
    6. The requested relief to permit ETF operations will expire on the
effective date of any Commission rule under the Act that provides
relief permitting the operation of actively managed ETFs.
B. Section 12(d)(1) Relief
    1. The members of the Investing Fund's Advisory Group will not
control (individually or in the aggregate) a Fund within the meaning of
section 2(a)(9) of the Act. The members of the Investing Fund's
Subadvisory Group will not control (individually or in the aggregate) a
Fund within the meaning of section 2(a)(9) of the Act. If, as a result
of a decrease in the outstanding voting securities of a Fund, the
Investing Fund's Advisory Group or the Investing Fund's Subadvisory
Group, each in the aggregate, becomes a holder of more than 25 percent
of the outstanding voting securities of a Fund, it will vote its Shares
of the Fund in the same proportion as the vote of all other holders of
the Fund's Shares. This condition does not apply to the Investing
Fund's Subadvisory Group with respect to a Fund for which the Investing
Fund Subadviser or a person controlling, controlled by or under common
control with the Investing Fund Subadviser acts as the investment
adviser within the meaning of section 2(a)(20)(A) of the Act.
    2. No Investing Fund or Investing Fund Affiliate will cause any
existing or potential investment by the Investing Fund in a Fund to
influence the terms of any services or transactions between the
Investing Fund or an Investing Fund Affiliate and the Fund or a Fund
Affiliate.
    3. The Board of an Investing Management Company, including a
majority of the disinterested directors or trustees, will adopt
procedures reasonably designed to ensure that the Investing Fund
Adviser and any Investing Fund Subadviser are conducting the investment
program of the Investing Management Company without taking into account
any consideration received by the Investing Management Company or an
Investing Fund Affiliate from a Fund or a Fund Affiliate in connection
with any services or transactions.
    4. Once an investment by an Investing Fund in the Shares of a Fund
exceeds the limit in section l2(d)(1)(A)(i) of the Act, the Board of a
Fund, including a majority of the disinterested Board members, will
determine that any consideration paid by the Fund to the Investing Fund
or an Investing Fund Affiliate in connection with any services or
transactions: (i) Is fair and reasonable in relation to the nature and
quality of the services and benefits received by the Fund; (ii) is
within the range of consideration that the Fund would be required to
pay to another unaffiliated entity in connection with the same services
or transactions; and (iii) does not involve overreaching on the part of
any person concerned. This condition does not apply with respect to any
services or transactions between a Fund and its investment adviser(s),
or any person controlling, controlled by or under common control with
such investment adviser(s).
    5. The Investing Fund Adviser, or Trustee or Sponsor, as
applicable, will waive fees otherwise payable to it by the Investing
Fund in an amount at least equal to any compensation (including fees
received pursuant to any plan adopted by a Fund under rule 12b-l under
the Act) received from a Fund by the Investing Fund Adviser, or Trustee
or Sponsor, or an affiliated person of the Investing Fund Adviser, or
Trustee or Sponsor, other than any advisory fees paid to the Investing
Fund Adviser, or Trustee or Sponsor, or its affiliated person by the
Fund, in connection with the investment by the Investing Fund in the
Fund. Any Investing Fund Subadviser will waive fees otherwise payable
to the Investing Fund Subadviser, directly or indirectly, by the
Investing Management Company in an amount at least equal to any
compensation received from a Fund by the Investing Fund Subadviser, or
an affiliated person of the Investing Fund Subadviser, other than any
advisory fees paid to the Investing Fund Subadviser or its affiliated
person by the Fund, in connection with the investment by the Investing
Management Company in the Fund made at the direction of the Investing
Fund Subadviser. In the event that the Investing Fund Subadviser waives
fees, the benefit of the waiver will be passed through to the Investing
Management Company.
    6. No Investing Fund or Investing Fund Affiliate (except to the
extent it is acting in its capacity as an investment adviser to a Fund)
will cause a Fund to purchase a security in an Affiliated Underwriting.
    7. The Board of a Fund, including a majority of the disinterested
Board members, will adopt procedures reasonably designed to monitor any
purchases of securities by the Fund in an Affiliated Underwriting, once
an investment by an Investing Fund in the securities of the Fund
exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any
purchases made directly from an Underwriting Affiliate. The Board will
review these purchases periodically, but no less frequently than
annually, to determine whether the purchases were influenced by the
investment by the Investing Fund in the Fund. The Board will consider,
among other things: (i) Whether the purchases were consistent with the
investment objectives and policies of the Fund; (ii) how the
performance of securities purchased in an Affiliated Underwriting
compares to the performance of comparable securities purchased during a
comparable period of time in underwritings other than Affiliated
Underwritings or to a benchmark such as a comparable market index; and
(iii) whether the amount of securities purchased by the Fund in
Affiliated Underwritings and the amount purchased directly from an
Underwriting Affiliate have changed significantly from prior years. The
Board will take any appropriate actions based on its review, including,
if appropriate, the institution of procedures designed to ensure that
purchases of securities in Affiliated Underwritings are in the best
interest of shareholders.
    8. Each Fund will maintain and preserve permanently in an easily
accessible place a written copy of the procedures described in the
preceding condition, and any modifications to such procedures, and will
maintain and preserve for a period of not less than six years from the
end of the fiscal year in which any purchase in an Affiliated
Underwriting occurred, the first two years in an easily accessible
place, a written record of each purchase of securities in Affiliated
Underwritings once an investment by an Investing Fund in the securities
of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act,
setting forth from whom the securities were acquired, the identity of
the underwriting syndicate's members, the terms of the purchase, and
the

information or materials upon which the Board's determinations were
made.
    9. Before investing in a Fund in excess of the limits in section
12(d)(1)(A), an Investing Fund will execute a FOF Participation
Agreement with the Fund stating that their respective boards of
directors or trustees and their investment advisers, or Trustee and
Sponsor, as applicable, understand the terms and conditions of the
order, and agree to fulfill their responsibilities under the order. At
the time of its investment in shares of a Fund in excess of the limit
in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of
the investment. At such time, the Investing Fund will also transmit to
the Fund a list of the names of each Investing Fund Affiliate and
Underwriting Affiliate. The Investing Fund will notify the Fund of any
changes to the list as soon as reasonably practicable after a change
occurs. The Fund and the Investing Fund will maintain and preserve a
copy of the order, the FOF Participation Agreement, and the list with
any updated information for the duration of the investment and for a
period of not less than six years thereafter, the first two years in an
easily accessible place.
    10. Before approving any advisory contract under section 15 of the
Act, the Board of each Investing Management Company, including a
majority of the disinterested directors or trustees, will find that the
advisory fees charged under such contract are based on services
provided that will be in addition to, rather than duplicative of, the
services provided under the advisory contract(s) of any Fund in which
the Investing Management Company may invest. These findings and their
basis will be recorded fully in the minute books of the appropriate
Investing Management Company.
    11. Any sales charges and/or service fees charged with respect to
shares of an Investing Fund will not exceed the limits applicable to a
fund of funds as set forth in NASD Conduct Rule 2830.
    12. No Fund relying on the section 12(d)(1) relief will acquire
securities of any investment company or company relying on section
3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in
section 12(d)(1)(A) of the Act, except to the extent permitted by
exemptive relief from the Commission permitting the Fund to purchase
shares of other investment companies for short-term cash management
purposes.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-27001 Filed 11-5-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: March 20, 2008 (Volume 73, Number 55)]
[Notices]
[Page 14977-14978]
[DOCID:fr20mr08-35]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 9988-015]

Augusta Canal Authority; Notice of Application Accepted for
Filing; Soliciting Motions To Intervene, Protests, and Comments; and
Soliciting Scoping Comments

March 13, 2008.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Application: New major License.
    b. Project No.: 9988-015.
    c. Date filed: May 31, 2007.
    d. Applicant: Augusta Canal Authority.
    e. Name of Project: King Mill Hydroelectric Project.
    f. Location: The King Mill Project is located on the Augusta Canal
about 6 miles downstream of the Augusta Diversion Dam, adjacent to the
Savannah River, Richmond County, Augusta, GA. The project does not
affect federal lands.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
    h. Applicant Contacts: Mr. Dayton Sherrouse, Executive Director,
Augusta Canal Authority, 1450 Green Street, Suite 400, Augusta, GA
30901; Telephone<PHONE_NUMBER>, Ext. 1.
    i. FERC Contact: Sarah Florentino, Telephone<PHONE_NUMBER>, or e-
mail<EMAIL_ADDRESS>Additional information on Federal
Energy Regulatory Commission (FERC) hydroelectric projects is available
on FERC's Web site: http://www.ferc.gov/industries/hydropower.asp.
    j. Deadline for Filing Comments, Protests, and Motions to
Intervene: 60 days from the issuance date of this notice.
    All documents (original and eight copies) should be filed with:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426. Comments, protests, and
interventions may be filed electronically via the Internet in lieu of
paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the
Commission's Web site under the ``e-Filing'' link. The Commission
strongly encourages electronic filings. Please include the project
number (P-9988-015) on any comments or motions filed.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency.
    k. Description of Project: The existing King Mill Hydroelectric
Project consists of: (1) Intake works consisting of a 50-foot-long, 15-
foot-high headgate and intake structure; (2) primary and secondary
steel trash racks; (3) a 200-foot-long, 40-foot-wide, concrete-lined,
open flume head race; (4) a 435-foot-long, 30-foot-wide brick and
masonry powerhouse; (5) two vertical shaft turbine/generator units with
an installed capacity of 2.25 megawatts; (6) a 435-foot-long, 30-foot-
wide, concrete-lined, open tailrace section which returns flows to the
Augusta Canal, and (7) appurtenant facilities. There is no dam or
impoundment, as approximately 881 cfs of water is withdrawn from the
Augusta Canal when operating at full capacity. Developed head is
approximately 32 feet. The estimated generation is 14,366 MWh annually.
Nearly all generated power is utilized by the Standard Textile Plant,
located within the King Mill building, for textile production. No new
facilities or changes in project operation are proposed.
    l. Scoping Process: The Commission staff intends to prepare a
single Environmental Assessment (EA) for the King Mill Hydroelectric
Project in accordance with the National Environmental Policy Act. The
EA will consider both site-specific and cumulative environmental
impacts and reasonable alternatives to the proposed action.
    Commission staff does not propose to conduct any on-site scoping
meetings at this time. Instead, we are soliciting comments,
recommendations, and information, on the Scoping Document (SD) issued
on March 13, 2008.
    m. Locations of Applications: A copy of the application and scoping
document is available for inspection and reproduction at the Commission
in the Public Reference Room, located at 888 First Street, NE., Room
2A, Washington, DC 20426, or by calling<PHONE_NUMBER>. This filing may
also be viewed on the Commission's Web site at: http://www.ferc.gov
using the ``eLibrary'' link. Enter the docket number excluding the last
three digits in the docket number field to access the document. For
assistance, call toll-free 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>For TTY, call<PHONE_NUMBER>. A copy is
also available for inspection and reproduction at the address in item h
above.
    n. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    o. Competing Development Application: Any qualified development
applicant desiring to file a competing development application must
submit to the Commission, on or before a specified comment date for the
particular application, either a competing development application or a
notice of intent to file such an application. Submission of a timely
notice of intent to file a development application allows an interested
person to file the competing application no later than 120 days after
the specified comment date for the particular application. A competing
license application must conform with 18 CFR 4.30 and 4.36.
    p. Notice of Intent: A notice of intent must specify the exact
name, business address, and telephone number of the prospective
applicant, and must include an unequivocal statement of intent to
submit, if such an application may be filed, either a preliminary
permit application or a development application (specify which type of
application). A notice of intent must be served on the applicant(s)
named in this public notice.
    q. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210,
385.211, 385.214. In determining the appropriate action to take, the
Commission will consider all protests or other comments filed, but only
those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    Comments, protests and interventions may be filed electronically
via the Internet in lieu of paper; See 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's Web site under ``e-filing'' link.
The Commission strongly encourages electronic filing.
    r. Filing and Service of Responsive Documents: Any filings must
bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS
FOR TERMS AND CONDITIONS'', ``PROTEST'', ``COMPETING APPLICATION'' OR
``MOTION TO INTERVENE'', as applicable, and the Project Number of

the particular application to which the filing refers. Any of the
above-named documents must be filed by providing the original and the
number of copies provided by the Commission's regulations to: The
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. A copy of any motion to intervene must also be
served upon each representative of the Applicant specified in the
particular application.
    s. Agency Comments: Federal, State, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Kimberly D. Bose,
Secretary.
[FR Doc. E8-5591 Filed 3-19-08; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 89 (Wednesday, May 8, 2013)]
[Notices]
[Pages 26783-26784]
[FR Doc No: 2013-10887]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2012-N-0559]

Agency Information Collection Activities; Announcement of Office
of Management and Budget Approval; Public Health Service Guideline on
Infectious Disease Issues on Xenotransplantation

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing that a
collection of information entitled ``Public Health Service Guideline on
Infectious Disease Issues on Xenotransplantation'' has been approved by
the Office of Management and Budget (OMB) under the Paperwork Reduction
Act of 1995.

FOR FURTHER INFORMATION CONTACT: Ila S. Mizrachi, Office of Information
Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B,
Rockville, MD 20850,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: On March 20, 2013, the Agency submitted a
proposed collection of information entitled ``Public Health Service
Guideline on Infectious Disease Issues on Xenotransplantation'' to OMB
for review and clearance under 44 U.S.C. 3507. An Agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. OMB has now approved the information collection and has
assigned OMB control number 0910-0456. The approval expires on March
31, 2016. A copy of the supporting statement for this information
collection is available on

the Internet at http://www.reginfo.gov/public/do/PRAMain.

    Dated: May 2, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-10887 Filed 5-7-13; 8:45 am]
BILLING CODE 4160-01-P


In the Urban Air Toxics Strategy Report to Congress, we acknowledge that national rules and standards can address part of the risk to communities, but because the assessments do not include background risks or contributions to risk from sources outside the facilities more needs to be done at the community level with other tools available within the CAA and within state, local, and other federal programs. EPA is committed to our efforts to make a difference in communities of concern and developing an integrated strategy focusing work in communities with the most need for EPA's assistance. This effort to enhance coordination across our EPA programs and with other federal agencies will improve how we support community needs. We will focus on those communities where we think we have opportunities to leverage resources and actions to make a real difference. As we learn lessons on coordinating and focusing our efforts, we will use these lessons to help more communities in the future. Refer to EPA's response to comment 2.4-05 for a discussion on EPA's actions to fulfill its obligations under Executive Order 12898.

2.4-05 Comment: Commenter 0100 asserted that EPA must fully integrate the findings of its environmental justice analysis into this risk assessment and rulemaking and set stronger pollution limits to provide environmental justice.

Response: Under Executive Order (EO) 12898, EPA is directed to the greatest extent practicable and permitted by law, to make environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low income populations in the U.S. Consistent with EO 12898 and the Presidential Memorandum that accompanies it, EPA's environmental justice policies promote justice by focusing attention and EPA efforts on addressing the types of environmental justice harms and risks that are prevalent among minority, low-income, and indigenous populations. EO 12898 and EPA's environmental justice policies do not mandate particular outcomes from an action, but they demand that decisions involving the action be informed by a consideration of environmental justice issues. With respect to this rule, EPA found the overall level of risk from the source category to be acceptable and to provide an ample margin of safely for all populations in close proximity to these sources, including minority and low-income populations.

3.0  Startup, Shutdown, or Malfunction

3.0-01 Comment: Commenter 0100 contended that EPA has no lawful basis or authority to create a "force majeure event" exemption to reporting, or any other requirements, as it proposes to do, as the D.C. Circuit has previously explained in rejecting a similar "affirmative defense" to civil penalties for malfunctions. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). The commenter explained that adding such an exemption would also be arbitrary and unlawful because it would undermine the reporting requirements by providing a justification to delay reporting, and thus undermine compliance, enforcement, and fulfillment of the emissions standards designed to protect public health and the environment at the core of the Act's and § 7412's purpose. See, e.g., 42 U.S.C. § 7401 (emphasizing objective of pollution prevention to protect public health and welfare). The commenter suggested that, if an event occurs that delays reporting, EPA and/or a court may address the implications of that event in an administrative or judicial enforcement proceeding, as part of the penalty assessment tests applicable under 42 U.S.C. § 7413(d) (EPA) and (e) (court).

Response: Refer to section IV.C.3 of the preamble to the final rule for EPA's response to this comment.

3.0-02 Comment: Commenter 0100 expressed support for EPA's removal of regulatory language that violated the Act's requirements and D.C. Circuit precedent directing that emission standards apply at all times. The commenter supported EPA's finalizing the provisions as proposed to ensure that it is clear that they apply at all times, and are continuous, without any exemptions because this revision would strengthen the compliance and enforcement regulatory provisions applicable to these facilities.

Response: EPA acknowledges the commenter for supporting removal of regulatory language to ensure that it is clear that the standards apply at all times. The Leather Finishing NESHAP currently requires that the standards apply at all times, consistent with Sierra Club v. EPA. The NESHAP specifies in 40 CFR 63.5320(a) "All affected sources must be in compliance with the requirements of this subpart at all times, including periods of startup, shutdown, and malfunction." However, the NESHAP refers to General Provisions (40 CFR 63, subpart A) that include provisions related to SSM that are not consistent with Sierra Club v. EPA or 40 CFR 63.5320(a). In order to remove these inconsistencies within the NESHAP, to clarify EPA's original intent that the standards apply at all times, and to ensure that the subpart requirements are consistent with the court decision cited above, we proposed and are finalizing the un-incorporation of all General Provisions related to the SSM exemption and move any applicable portion of these General Provisions to the NESHAP. A detailed discussion of this decision is provided in the preamble to the proposed rule.

4.0 Miscellaneous Comments

4.0-01 Comment: Commenter 0100 stated that EPA's failure to include the document titled Analysis of Demographic Factors for Populations Living Near Leather Finishing Operations was a violation of notice-and-comment requirements because EPA had not published this document for public review and comment, nor had it provided the statutorily-required thirty-day comment period to review the proposed rule and supporting material on which the agency relied for that proposed rule. See, e.g., 42 U.S.C. § 7607(d)(3)-(6). The commenter further suggested that exclusion from the public docket of this one document raises a serious concern that EPA has failed to publish additional information on which it relies for the proposed rule.

Response: We added the document titled Analysis of Demographic Factors for Populations Living Near Leather Finishing Operations to docket No. EPA-HQ-OAR-2003-0194 and published a notice on May 15, 2018 (83 FR 22438) explaining the inadvertent omission from, and subsequent addition of, this document to the docket for the proposed rule. In addition, we re-opened the comment period on May 15, 2018 (83 FR 22438) to provide an additional 30 days for public review and written comment on the proposed rule, extending the deadline to June 14, 2018. As such, EPA has complied with its statutory obligations under 42 U.S.C. § 7607(d)(3)-(6). Further, we disagree with the comment that EPA may have failed to publish additional information on which it relies for the proposed rule. Upon notification of the inadvertent omission of the above referenced document from the docket, EPA took prompt action to include add it to the docket and reopened the comment period for an additional 30 days, commenters provided no evidence that additional relevant documents were not provided in the docket for this rulemaking.

4.0-02 Comment: Commenter 0092 contended that the rule created "potentially unduly burdensome requirements." The commenter added that EPA's analysis shows limited pollutant loadings and relative high costs to control. The commenter stated that, consequently, EPA should substantially reduce or eliminate the burdensome requirements. The commenter concluded that the entire subcategory should be excluded given the de minimis amount of pollution.

Response: The commenter did not specify to which "potentially unduly burdensome requirements" they were referring. We disagree with the commenter that these amendments create any unduly burdensome requirements. As documented in the memorandum titled Costs for the Leather Finishing Operations Source Category Risk and Technology Review (available in Docket ID No. EPA-HQ-OAR-2003-0194), the total national cost of the proposed rules is $705, associated with reviewing the promulgated standards. The proposed rule amendments include additional recordkeeping and reporting requirements for any leather operation that elects to comply with the standard using an emission control device; however, none of the four existing leather operations currently use an emission control device to comply with subpart TTTT, and we are not aware of any planned or potential new or reconstructed leather finishing operations. As a result, no leather finishing operations will comply with these new requirements, which will result in no added cost to the industry. Further, the proposed rule amendments include revised recordkeeping and reporting requirements for any leather finishing operation that deviates from the standards; however, these revised records and reports add no additional burden because EPA anticipate that no facilities will deviate from the standards during the three years of this information collection.

4.0-03 Comment: Commenter 0092 asserted that EPA must give serious attention to impacts on small entities caused by rulemakings. The commenter cited the Regulatory Flexibility Act (RFA), the Small Business Regulatory Enforcement Fairness Act, the Improper Payments Information Act of 2002, and the Regulatory Right-to-Know- Act. The commenter noted that EPA must conduct an initial regulatory flexibility analysis with the proposed rule and a final regulatory flexibility analysis with the final rule.

Response: The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the APA or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The impact of concern is any significant adverse economic impact on small entities directly regulated by the rule. EPA made such a certification and, thus, a regulatory flexibility analysis is not required. We concluded that the proposed and final rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. We determined that each of the three small entities impacted by this action may experience an impact of less than 0.01 percent of sales. Details of this analysis are presented in the memorandum titled Proposal Economic Impact Analysis for the Reconsideration of the Risk and Technology Review: Leather Finishing Operations Source Category (available in Docket ID No. EPA-HQ-OAR-2003-0194). The Small Business Regulatory Enforcement Fairness Act amended the RFA to require EPA to convene a Small Business Advocacy Review (SBAR) Panel for most proposed rules unless the agency can certify that a rule will not have a significant economic impact on a substantial number of small entities. As previously discussed, EPA has made such a certification, and, thus, this requirement is not applicable to this rulemaking. Further, the EPA is not aware of, nor has the commenter provided, any provisions of the Improper Payments Information Act of 2002, and the Regulatory Right-to-Know- Act which are applicable to this rulemaking in regard to its to impacts on small entities.

4.0-04 Comment: Commenter 0100 expressed support for requiring electronic reporting and urged EPA to extend this requirement to all covered facilities. The commenter stated that EPA provided no lawful or rational justification for not requiring all sources to report electronically.

Response: EPA acknowledges the commenter for supporting electronic reporting. The proposed requirement to electronically report test reports applies to all sources subject to the Leather Finishing Operations NESHAP. However, none of the four existing facilities are using control devices to comply with the NESHAP, so none will conduct any periodic performance testing that would trigger electronic reporting. Note that leather finishing operations subject to the NESHAP that comply without using a control device are required to conduct performance tests only once as part of the initial compliance determination, and that all four facilities subject to the NESHAP have already conducted this required test and submitted the required test data, prior to this requirement to electronically submit such data.


[Federal Register Volume 84, Number 85 (Thursday, May 2, 2019)]
[Notices]
[Pages 18916-18918]
[FR Doc No: 2019-08964]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0356]

Agency Information Collection Activities; Extension of a
Currently-Approved Information Collection Request: Transportation of
Household Goods; Consumer Protection

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

ACTION: Notice and request for information.

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SUMMARY: In accordance with the Paperwork Reduction Act of 1995, the
Federal Motor Carrier Safety Administration (FMCSA) announces its plan
to submit the Information Collection Request (ICR) described below to
the Office of Management and Budget (OMB) for its review and approval
and invites public comment. The information collected will be used to
help regulate motor carriers transporting household goods (HHG) for
individual shippers. FMCSA requests approval to extend an ICR titled
``Transportation of Household Goods; Consumer Protection.''

DATES: We must receive your comments on or before July 1, 2019.

ADDRESSES: You may submit comments identified by Federal Docket
Management System (FDMS) Docket Number FMCSA-2018-0356 using any of the
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations; U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, 20590-0001.
     Hand Delivery or Courier: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001 between 9 a.m. and 5 p.m. e.t.,
Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the Public
Participation heading below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading
below.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov, and follow the
online instructions for accessing the dockets, or go to the street
address listed above.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
    Public Participation: The Federal eRulemaking Portal is available
24 hours each day, 365 days each year. You can obtain electronic
submission and retrieval help and guidelines under the ``help'' section
of the Federal eRulemaking Portal Website. If you want us to notify you
that we received your comments, please include a self-addressed,
stamped envelope or postcard, or print the acknowledgement page that
appears after submitting comments online. Comments received after the
comment closing date will be included in the docket and will be
considered to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Monique Riddick, Lead Transportation
Specialist, Commercial Enforcement and Investigations Division,
Department of Transportation, Federal Motor Carrier Safety
Administration, West Building 6th Floor, 1200 New Jersey Avenue SE,
Washington, DC 20590. Telephone:<PHONE_NUMBER>; email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Background: The Motor Carrier Safety
Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748, Dec.
9, 1999) authorized the Secretary of Transportation (Secretary) to
regulate HHG carriers engaged in interstate operations for individual
shippers. In earlier legislation, Congress abolished the former
Interstate Commerce Commission and transferred the Commission's
jurisdiction over HHG transportation to the U.S. Department of
Transportation (DOT) (ICC Termination Act of 1995, Pub. L. 104-88, 109
Stat. 803, Dec. 29 1995). Prior to FMCSA's establishment, the Secretary
delegated this HHG jurisdiction to the Federal Highway Administration,
FMCSA's predecessor organization within DOT.
    FMCSA has authority to regulate the overall commercial operations
of the HHG industry under 49 U.S.C. 14104, ``Household goods carrier
operations.'' This ICR includes the information collection requirements
contained in title 49 CFR part 375, ``Transportation of Household Goods
in Interstate Commerce; Consumer Protection Regulations.'' The
information collected encompasses that which is generated, maintained,
retained, disclosed, and provided to, or for, the agency under 49 CFR
part 375.
    Sections 4202 through 4216 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-
59, 119 Stat. 1144, Aug. 10, 2005) amended various provisions of
existing law regarding HHG transportation. It specifically addressed:
Definitions (section 4202); payment of rates (section 4203);
registration requirements (section 4204); carrier operations (section
4205); enforcement of regulations (section 4206); liability of carriers
under receipts and bills of lading (section 4207); arbitration
requirements (section 4208); civil penalties for brokers and
unauthorized transportation (section 4209); penalties for holding goods
hostage (section 4210); consumer handbook (section 4211); release of
broker information (section 4212); working group for Federal-State
relations (section 4213); consumer complaint information (section
4214); review of liability of carriers (section 4215); and application
of State laws (section 4216). These provisions triggered updates to 49
CFR part 375 on July 5, 2007 (72 FR 36760).
    On July 16, 2012, FMCSA published a Direct Final Rule (DFR) titled
``Transportation of Household Goods in Interstate Commerce; Consumer
Protection Regulations: Household Goods Motor Carrier Record Retention
Requirements,'' (77 FR 41699). The rule amended the regulations
governing the period during which HHG motor carriers must retain
documentation of an individual shipper's waiver of receipt of printed
copies of consumer protection materials. This change harmonized the
retention period with other document retention requirements applicable
to HHG motor carriers. FMCSA also amended the regulations to clarify
that a HHG motor carrier is not required to retain waiver documentation
from any individual shippers for whom the carrier does not actually
provide services.
    Title: Transportation of Household Goods; Consumer Protection.
    OMB Control Number: 2126-0025.
    Type of Request: Extension of a currently-approved information
collection.
    Respondents: Household goods movers.
    Estimated Number of Respondents: 4,212 household goods movers.
    Estimated Time per Response: Varies.

IC-1: Informational Documents Provided to Prospective Shippers

     ``Ready to Move'' Pamphlet: Less than 1 minute.
     ``Your Rights and Responsibilities'' Pamphlet: Less than 1
minute.
     Arbitration and Complaint Summaries: 2 hours to create
summaries, less than 1 minute to print.
     Internet website Hyperlinks to Federal Consumer Protection
Information: 0.5 hours.
     Signed Receipt for Verification of Booklets Received: less
than 3 minutes.

IC-2: Written Cost Estimates for Prospective Shippers

     Physical surveys--binding: 2 hours.
     Physical surveys--non-binding: 2 hours.
     No physical surveys--non-binding: 0.5 hours.

IC-3: Orders for Service, Bills of Lading

     Orders for Service, Goods Inventories, and Bills of
Lading: 0.5 hours.
     Weighing shipments: 1 minute.

IC-4: In-Transit Service Notifications

     Notification of delay: 5 minutes.
     Notification of delay and record requested: 15 minutes.
     Notification of early delivery: 5 minutes.

IC-5: Complaint & Inquiry Records, Including Establishing Record System

     Establish complain and inquiry record system: 0.5 hours.
     Recording complaint and inquiry: 5 minutes for complaint,
1 minute for inquiry.
    Expiration Date: August 31, 2019.
    Frequency of Response: Varies.
    Estimated Total Annual Burden: 4,282,171 hours [IC-1 Informational
Documents Provided to Prospective Shippers at 24,692 hours + IC-2
Written Cost Estimates for Prospective Shippers at 3,593,866 hours +
IC-3 Orders for Service, Bills of Lading at 621,621 hours + IC-4 In-
Transit Service Notifications at 17,496 hours + IC-5 Complaint &
Inquiry Records, Including Establishing Record System at 24,496 hours].
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including: (1) Whether the proposed
collection is necessary for the performance of FMCSA's functions; (2)
the accuracy of the estimated burden; (3) ways for FMCSA to enhance the
quality, usefulness, and clarity of the collected information; and (4)
ways that the burden could be minimized without reducing the quality of
the information collected. The Agency will summarize or include your
comments in the request for OMB's clearance of this ICR.

    Issued under the authority of 49 CFR 1.87.
G. Kelly Regal,
Associate Administrator for Office of Research and Information
Technology.
[FR Doc. 2019-08964 Filed 5-1-19; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: October 27, 2010 (Volume 75, Number 207)]
[Notices]
[Page 66104]
[DOCID:fr27oc10-76]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0121]

Agency Information Collection Activities; Announcement of Office
of Management and Budget Approval; The Mammography Quality Standards
Act Requirements

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing that a
collection of information entitled ``The Mammography Quality Standards
Act Requirements'' has been approved by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Daniel Gittleson, Office of
Information Management, Food and Drug Administration, 1350 Piccard Dr.,
PI50-400B, Rockville, MD 20850,<PHONE_NUMBER>, e-mail:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the Federal Register of June 15, 2010 (75
FR 33811), the Agency announced that the proposed information
collection had been submitted to OMB for review and clearance under 44
U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. OMB has now approved the
information collection and has assigned OMB control number 0910-0309.
The approval expires on October 31, 2013. A copy of the supporting
statement for this information collection is available on the Internet
at http://www.reginfo.gov/public/do/PRAMain.

    Dated: October 21, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2010-27159 Filed 10-26-10; 8:45 am]
BILLING CODE 4160-01-P


Mary Dominiak 07/ 03/ 2003 10: 27 AM To: Mary Dominiak/ DC/ USEPA/ US@ EPA cc: ( bcc: Mary Dominiak/ DC/ USEPA/ US) Subject: PFOA ECA Technical Workgroup Meeting Summaries, June 23 24, 2003 TO: PFOA ECA Technical Workgroup Meeting Attendees The summaries of the Fluoropolymer, Monitoring, Communications, and Telomer PFOA ECA Technical Workgroup meetings held on June 23 24, 2003 are attached for your information and review. My apologies for the delay; it took us a bit longer to produce these than we had hoped.

Copies of these summaries have been submitted to the docket. If you have any comments on the accuracy of the summaries, please direct them to me. If corrections to a meeting summary are necessary, we will place the comments together with a corrected version of the summary in the docket. The summaries appear as documents OPPT 2003 0012 0132 through 0135.

Meeting attendees are reminded that all materials in preparation for the upcoming Technical Workgroup and Plenary sessions on July 9 10, 2003 should be sent to me by close of business Monday, July 7, 2003, for electronic distribution prior to the meetings. Draft workgroup agendas incorporating those submissions will be circulated next week.

The order of Technical Workgroup meetings will be: Wednesday, July 9, 2003: 9: 00 noon, PFOA ECA Fluoropolymer Technical Workgroup Meeting 1: 00 4: 00, PFOA ECA Monitoring Technical Workgroup Meeting Thursday, July 10, 2003: 9: 00 noon, PFOA ECA Telomer Technical Workgroup Meeting The Technical Workgroup meetings will be in Room 4225 of EPA East, the same room we had for the last meetings. The Plenary Session will be held on Thursday, July 10, 2003, from 1: 00 5: 00 PM in Room 1153, the hearing room that we used for the June 6, 2003 meeting.

If you have any questions or comments, please contact me.

Sincerely,

Mary F. Dominiak U. S. Environmental Protection Agency EPA East, Mail Code 7405M 1200 Pennsylvania Avenue, NW Washington, DC 20460 Phone: 202 564 8104 Fax: 202 564 4775 Courier deliveries: 1201 Constitution Ave., NW, Room 4410; 564 4760 6 24 03 Telomer Tech Workgroup Summar 6 23 03 Monitoring Tech Workgroup Summa 6 24 03 Communications Workgroup Summa6 23 03 Fluoropolymer Tech Workgroup Summa


[Federal Register Volume 82, Number 194 (Tuesday, October 10, 2017)]
[Notices]
[Pages 46987-46988]
[FR Doc No: 2017-21655]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2005-0023; FRL--9968-27-OEI]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; Clean Water Act Section 404 State-Assumed
Programs (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency has submitted an
information collection request (ICR), ``Clean Water Act Section 404
State-Assumed Programs'' (EPA ICR No. 0220.13, OMB Control No. 2040-
0168) to the Office of Management and Budget (OMB) for review and
approval in accordance with the Paperwork Reduction Act. This is a
proposed extension, which is currently approved through November 30,
2017. Public comments on the ICR renewal were requested via the Federal
Register (82 FR 30861) published on July 3, 2017, during a 60-day
comment period. This notice allows for an additional 30 days for public
comments. A fuller description of the ICR is given below, including its
estimated burden and cost to the public. An Agency may not conduct or
sponsor and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number.

DATES: Additional comments may be submitted on or before November 9,
2017.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OW-2005-0023, to (1) EPA online using www.regulations.gov (our
preferred method), by email<EMAIL_ADDRESS>or by mail to: EPA
Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW., Washington, DC 20460, and (2) OMB via email to
<EMAIL_ADDRESS>Address comments to OMB Desk Officer for
EPA.
    EPA's policy is that all comments received will be included in the
public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Kathy Hurld, Office of Wetlands,
Oceans, and Watersheds, Wetlands Division (4502T), Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; email
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Supporting documents, which explain in
detail the information that the EPA will be collecting, are available
in the public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit http://www.epa.gov/dockets.
    Abstract: Section 404(g) of the Clean Water Act (CWA) authorizes
states and tribes to assume the section 404 permit program for
discharges of dredged or fill material into certain Waters of the U.S.
This ICR covers the collection of information EPA needs to perform its
program approval and oversight responsibilities and the state/tribe
needs to implement its program.
    To request to assume the CWA section 404 permit program, states/
tribes must demonstrate that they meet the statutory and regulatory
requirements (40 CFR 233) for an approvable program. Specified
information and documents

must be submitted by the state/tribe to EPA to request assumption and
must be sufficient to enable EPA to undertake a thorough analysis of
the state/tribal program. Once the required information and documents
are submitted and EPA has a complete assumption request package, the
statutory time clock for EPA's decision to either approve or disapprove
the state/tribe's assumption request starts. The information contained
in the assumption request submission is provided to the Army Corps of
Engineers, U.S. Fish and Wildlife Service and U.S. National Marine
Fisheries Service and to the public for review and comment.
    States/tribes with assumed programs must be able to issue permits
that assure compliance with all applicable statutory and regulatory
requirements, including the 404(b)(1) Guidelines. Sufficient
information must be provided in the application so that states/tribes
and federal agencies reviewing the permit can evaluate, avoid, minimize
and compensate for any anticipated impacts resulting from the proposed
project. EPA's assumption regulations establish required elements that
must be included in the state/tribe's permit application, so that
sufficient information is available to make a thorough analysis of
anticipated impacts. (40 CFR 233.30). These minimum information
requirements generally reflect the information that must be submitted
when applying for a section 404 permit from the Army Corps of
Engineers.
    EPA has an oversight role for assumed 404 permitting programs to
ensure that state/tribal programs comply with applicable requirements
and that state/tribal permit decisions adequately consider, avoid,
minimize and compensate for anticipated impacts. States/tribes must
evaluate their programs annually and submit the results in a report to
EPA. EPA's assumption regulations establish minimum requirements for
the annual report (40 CFR 233.52).
    The information included in the state/tribe's assumption request
and the information included in a permit application is made available
for public review and comment. The information included in the annual
report to EPA is made available to the public. EPA does not make any
assurances of confidentiality for this information. (CWA section
404(h); CWA section 404(j); 40 CFR 230.10, 233.20, 233.21, 233.34, and
233.50; and 33 CFR 325)
    Form Numbers: None.
    Respondents/affected entities: States/tribes requesting assumption
of the CWA section 404 permit program; states/tribes with approved
assumed programs; and permit applicants in states/tribes with assumed
programs.
    Respondent's obligation to respond: Required to obtain or retain a
benefit (40 CFR 233).
    Estimated number of respondents: 2 states/tribes requesting program
assumption; 11,900 permit applications; and 4 states/tribes that will
submit an annual report.
    Frequency of response: Once for states/tribes to request
assumption; annually for states/tribes submitting the annual report;
and once for permit applicants when requesting a permit.
    Total estimated burden: 119,707 hours (per year). Burden is defined
at 5 CFR 1320.03(b).
    Total estimated cost: Costs to states for assumed Section 404
permit programs will vary widely by state and permit, however there are
no capital or operation & maintenance costs.
    Changes in the Estimates: There is an increase of 28,747 hours in
the total estimated respondent burden compared with the ICR currently
approved by OMB. This increase reflects an increase in hours spent
reviewing each permit.

Courtney Kerwin,
Director, Regulatory Support Division.
[FR Doc. 2017-21655 Filed 10-6-17; 8:45 am]
BILLING CODE 6560-50-P