[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Rules and Regulations]
[Pages 72660-72664]
[FR Doc No: 2010-29702]

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SECURITIES AND EXCHANGE COMMISSION

17 CFR PARTS 230, 240 and 260

[Release Nos. 33-9158; 34-63348; 39-2472; File No. S7-02-09]
RIN 3235-AK26

Extension of Temporary Exemptions for Eligible Credit Default
Swaps To Facilitate Operation of Central Counterparties To Clear and
Settle Credit Default Swaps

AGENCY: Securities and Exchange Commission.

ACTION: Final temporary rules; extension.

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SUMMARY: We are extending the expiration dates in our temporary rules
that provide exemptions under the Securities Act of 1933, the
Securities Exchange Act of 1934, and the Trust Indenture Act of 1939
for certain credit default swaps in order to continue facilitating the
operation of one or more central counterparties for those credit
default swaps until the implementation of the clearing provisions of
the Dodd-Frank Wall Street Reform and Consumer Protection Act. Under
the amendments, the expiration dates of the temporary rules are
extended to July 16, 2011.

DATES: Effective Date: This rule is effective November 26, 2010, and
the expiration dates for the temporary rules and amendments published
January 22, 2009 (74 FR 3967) and extended in a release published on
September 17, 2009 (74 FR 47719) are extended from November 30, 2010 to
July 16, 2011.

FOR FURTHER INFORMATION CONTACT: Amy M. Starr, Senior Special Counsel,
or Michael J. Reedich, Special Counsel, Office of Chief Counsel,
Division of Corporation Finance, at<PHONE_NUMBER>, U.S. Securities and
Exchange Commission, 100 F Street, NE., Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION: We are adopting amendments to the following
rules: temporary Rule 239T and Rule 146 under the Securities Act of
1933 (``Securities Act''),\1\ temporary Rule 12a-10T and Rule 12h-1(h)T
under the Securities Exchange Act of 1934 (``Exchange Act''),\2\ and
temporary Rule 4d-11T under the Trust Indenture Act of 1939
(``TIA'').\3\
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    \1\ 15 U.S.C. 77a et seq.
    \2\ 15 U.S.C. 78a et seq.
    \3\ 15 U.S.C. 77aaa et seq.
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I. Background

    In January 2009, we adopted interim final temporary Rule 239T and a
temporary amendment to Rule 146 under the Securities Act, interim final
temporary Rules 12a-10T and 12h-1(h)T under the Exchange Act, and
interim final temporary Rule 4d-11T under the TIA (collectively, the
``Temporary Rules''), and in September 2009, we extended the expiration
date of these rules from September 25, 2009 to November 30, 2010. We
adopted these rules in connection with temporary exemptive orders \4\
we issued to clearing agencies acting as central counterparties
(``CCP''), which exempted the CCPs from the requirement to register as
clearing agencies under Section 17A of the Exchange Act \5\ solely to
perform the functions of a clearing agency for certain credit default
swap (``CDS'') transactions.\6\ The exemptive orders also exempted
certain eligible contract participants \7\ and others from certain
Exchange Act requirements with respect to certain CDS.\8\ Also at that
time, we temporarily exempted any exchange that effects transactions in
certain CDS from the requirements under Sections 5 and 6 of the
Exchange Act \9\ to register as a national securities exchange, and any
broker or dealer that effects transactions on an exchange in certain
CDS from the requirements of Section 5 of the Exchange Act.
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    \4\ See generally Securities Exchange Act Release Nos. 60372
(Jul. 23, 2009), 74 FR 37748 (Jul. 29, 2009) and 61973 (Apr. 23,
2010), 75 FR 22656 (Apr. 29, 2010) (temporary exemptions in
connection with CDS clearing by ICE Clear Europe Limited);
Securities Exchange Act Release Nos. 60373 (Jul. 23, 2009), 74 FR
37740 (Jul. 29, 2009) and 61975 (Apr. 23, 2010), 75 FR 22641 (Apr.
29, 2010) (temporary exemptions in connection with CDS clearing by
Eurex Clearing AG); Securities Exchange Act Release Nos. 59578 (Mar.
13, 2009), 74 FR 11781 (Mar. 19, 2009), 61164 (Dec. 14, 2009), 74 FR
67258 (Dec. 18, 2009), and 61803 (Mar. 30, 2010), 75 FR 17181 (Apr.
5, 2010) (temporary exemptions in connection with CDS clearing by
Chicago Mercantile Exchange Inc.); Securities Exchange Act Release
Nos. 59527 (Mar. 6, 2009), 74 FR 10791 (Mar. 12, 2009), 61119 (Dec.
4, 2009), 74 FR 65554 (Dec. 10, 2009), and 61662 (Mar. 5, 2010), 75
FR 11589 (Mar. 11, 2010) (temporary exemptions in connection with
CDS clearing by ICE Trust U.S. LLC); Securities Exchange Act Release
No. 59164 (Dec. 24, 2008), 74 FR 139 (Jan. 2, 2009) (temporary
exemptions in connection with CDS clearing by LIFFE A&M and
LCH.Clearnet Ltd.) and other Commission actions discussed in several
of these orders.
    \5\ 15 U.S.C. 78q-1.
    \6\ See Exchange Act Release No. 59246 (Jan. 14, 2009).
    \7\ See 7 U.S.C. 1a(12).
    \8\ See generally the actions noted in footnote 4, supra.
    \9\ 15 U.S.C. 78e and 78f.
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    We adopted the Temporary Rules and the CCP exemptive orders because
we believed and continue to believe that the existence of CCPs for CDS
would be important in helping to reduce counterparty risks inherent in
the CDS market. Today, CDS agreements generally are negotiated and
entered into bilaterally, but eligible trades may be submitted to the
CCP for novation, which results in the CCP becoming the buyer to the
original seller and the seller to the original buyer.\10\ The operation
of a well-regulated CCP can significantly reduce counterparty risks by
preventing the failure of a single-market participant from having a
disproportionate effect on the overall market, since bilateral
counterparty risk is eliminated as the creditworthiness of the original
counterparties is replaced by the creditworthiness of the CCP.
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    \10\ ``Novation'' is a ``process through which the original
obligation between a buyer and seller is discharged through the
substitution of the CCP as seller to buyer and buyer to seller,
creating two new contracts.'' Committee on Payment and Settlement
Systems, Technical Committee of the International Organization of
Securities Commissioners, Recommendations for Central Counterparties
(November 2004) at 66.
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    At the time of the adoption of the Temporary Rules and the CCP
exemptive orders, the OTC market for CDS was a source of concern to us
and other financial regulators due to the systemic risk posed by CDS,
the possible inability of parties to meet their obligations as
counterparties under the CDS, and the potential resulting adverse
effects on other markets and the financial system.\11\ In response, in
January 2009, we took action to help foster the prompt development of
CCPs for CDS, including granting conditional exemptions from certain
provisions of the Federal securities laws.
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    \11\ In addition to the potential systemic risks that CDS pose
to financial stability, we were concerned about other potential
risks in this market, including operational risks, risks relating to
manipulation and fraud, and regulatory arbitrage risks.
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    In September 2009, we extended the expiration date of the Temporary
Rules to November 30, 2010 because, among other reasons, a number of
legislative initiatives relating to the regulation of derivatives,
including CDS, had been introduced by members of Congress and
recommended by the United States Department of the Treasury
(``Treasury''), and Congress had not yet

taken definitive action with respect to any of the legislative
initiatives or the Treasury proposals.\12\
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    \12\ See, e.g., Derivatives Trading Integrity Act of 2009 (S.
272) (introduced by Senator Tom Harkin in January 2009); The
Derivatives Markets Transparency and Accountability Act (H.R. 977)
(introduced by Representative Collin Peterson in February 2009);
Authorizing the Regulation of Swaps Act (S. 961) (introduced by
Senator Carl Levin and Senator Susan Collins in May 2009);
Treasury's framework for regulatory reform (released in June 2009);
Derivative Trading Accountability and Disclosure Act (H.R. 3300)
(introduced by Representative Michael McMahon in July 2009);
Description of Principles for OTC Derivatives Legislation (announced
by Representative Barney Frank and Representative Collin Peterson in
July 2009); Senator Charles Schumer's announcement regarding a
potential bill establishing central trade repositories for OTC
derivatives markets (August 2009); and Over-the-Counter Derivatives
Markets Act of 2009 (prepared by Treasury and sent to Congress in
August 2009).
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    On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer
Protection Act (the ``Dodd-Frank Act'') became law.\13\ The Dodd-Frank
Act is intended to address regulatory gaps in the existing regulatory
structure for the over-the-counter (``OTC'') derivatives markets by
providing the Commission and the Commodity Futures Trading Commission
(``CFTC'') the authority to regulate OTC derivatives. The primary goals
of Title VII of the Dodd-Frank Act, among others, are to increase the
transparency, efficiency and fairness of the OTC derivatives markets,
improve investor protection and to reduce the potential for
counterparty and systemic risk.\14\ To this end, Title VII of the Dodd-
Frank Act imposes a comprehensive regime for the regulation of
``swaps'' and ``security-based swaps'' (as those terms are defined in
the Dodd-Frank Act), including the clearing, exchange trading, and
reporting of transactions in security-based swaps.\15\ Certain CDS are
security-based swaps as defined under the Dodd-Frank Act.
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    \13\ The Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010 (Pub. L. 111-203, H.R. 4173).
    \14\ See e.g., S. Rep. No. 111-176 at 2 (2010).
    \15\ Section 761(a)(6) of the Dodd-Frank Act defines a
``security-based swap'' as any agreement, contract, or transaction
that is a swap based on a narrow-based security index, a single
security or loan, including any interest therein or on the value
thereof; or the occurrence, nonoccurrence, or extent of the
occurrence of an event relating to a single issuer of a security or
the issuers of securities in a narrow-based security index, provided
that such event directly affects the financial statements, financial
condition, or financial obligations of the issuer.
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    The Dodd-Frank Act amends the Exchange Act to require, among other
things, that transactions in security-based swaps be cleared through a
clearing agency that is registered with the Commission or that is
exempt from registration if the transactions are of a type that the
Commission determines must be cleared, unless an exemption from
mandatory clearing applies.\16\ Title VII of the Dodd-Frank Act also
provides that a derivatives clearing organization that is registered
with the CFTC and cleared swaps pursuant to an exemption from
registration as a clearing agency prior the date of enactment of the
Dodd-Frank Act, is deemed registered as a clearing agency for the
purposes of clearing security-based swaps (``Deemed Registered
Provision'').\17\ The Deemed Registered Provision, along with other
general provisions under Title VII of the Dodd-Frank Act, become
effective on July 16, 2011.\18\
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    \16\ See Section 763(a) of the Dodd-Frank Act, added as Section
3C(a)(1) of the Exchange Act, 15 U.S.C. 78a.
    \17\ See Section 763(b) of the Dodd-Frank Act, added as Section
17A(l) of the Exchange Act, 15 U.S.C. 78q-1.
    \18\ Section 774 of the Dodd-Frank Act states, ``[u]nless
otherwise provided, the provisions of this subtitle shall take
effect on the later of 360 days after the date of the enactment of
this subtitle or, to the extent a provision of this subtitle
requires a rulemaking, not less than 60 days after publication of
the final rule or regulation implementing such provision of this
subtitle.''
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    The Dodd-Frank Act also directs us to adopt regulations regarding,
among other things, clearing agencies for, and the clearing of,
security-based swaps, which include CDS. Under the Dodd-Frank Act, all
security-based swaps, including certain types of CDS, are defined as
securities under the Securities Act and the Exchange Act. In separate
rulemakings, we will be proposing rules to implement the clearing
provisions of the Dodd-Frank Act, among others.\19\ As part of our
review of the application of the Securities Act, the Exchange Act and
the TIA to security-based swaps and the implications for the clearing
and exchange trading provisions of the Dodd-Frank Act and our rules
implementing them, we will be evaluating the necessity and
appropriateness of exemptions from the registration requirements of the
Securities Act and Exchange Act and the indenture qualification
provisions of the TIA for security-based swaps that will be cleared by
clearing agencies. Pending the effective date of the relevant
provisions of the Dodd-Frank Act, however, the Temporary Rules are
needed to enable the CCPs to continue to clear eligible CDS in
accordance with the exemptive orders we have provided. The Temporary
Rules are an interim measure that will be supplanted by the
comprehensive regulatory regime required by the Dodd-Frank Act.
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    \19\ Under the Dodd-Frank Act, we are responsible for proposing
and adopting numerous rulemakings relating to Title VII and many
other rules implementing other provisions of such Act.
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    At the time of adoption of the Temporary Rules in January 2009, we
requested comment on various aspects of the Temporary Rules. We
received a total of 15 letters, only two of which commented
specifically on the Temporary Rules.\20\ Although those two letters
generally supported allowing CCPs to clear and settle CDS transactions
in accordance with the terms of the Temporary Rules, neither of the
commenters specifically addressed the duration of the Temporary Rules
and temporary amendments.\21\ The other commenters raised issues not
directly related to this rulemaking. No comments have been submitted to
us regarding the Temporary Rules since that time.
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    \20\ The public comments we received are available for Web site
viewing and printing at the Commission's Public Reference Room at
100 F St., NE., Washington, DC 20549 in File No. S7-02-09. They are
also available online at http://www.sec.gov/comments/s7-02-09/s70209.shtml.
    \21\ See letters from the Yale Law School Capital Markets and
Financial Instruments Clinic (March 23, 2009) and from IDX Capital
(March 23, 2009).
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    The Temporary Rules expire on November 30, 2010. As we discuss
above, until the effective date of the clearing provisions of Title VII
of the Dodd-Frank Act and our rules implementing them, it is important
that the CCPs continue to be able to clear eligible CDS without concern
that the Temporary Rules are unavailable. As a result, we have
determined that it is necessary and appropriate to extend the
expiration date to July 16, 2011.\22\
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    \22\ See Section III, infra, for a discussion of why the
extension of time is necessary.
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    We are only extending the expiration date of the Temporary Rules;
we are not making any other changes to the Temporary Rules. The
Temporary Rules were modeled on other exemptions we have provided in
the past to facilitate trading in certain securities.\23\ They are
limited in scope; in general, they facilitate the operation of the CCPs
under the exemptive orders.\24\
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    \23\ See, e.g., Securities Act Section 3(a)(14) [15 U.S.C.
77c(a)(14)], Securities Act Rule 238 [17 CFR 230.238]; Exchange Act
Section 12(a) [15 U.S.C. 78l(a)], and Exchange Act Rule 12h-1(d) and
(e) [17 CFR 240.12h-1(d) and (e)] (providing similar exemptions from
provisions of the Federal securities laws for standardized options
and securities futures products).
    \24\ For a fuller discussion of the exemptive rules, see
Exchange Act Release 59246 (Jan. 14, 2009).
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II. Amendment of Expiration Date of the Temporary Rules

    In January 2009, we adopted the Temporary Rules on a temporary
basis until September 25, 2009. We subsequently extended the expiration

date to November 30, 2010 to allow CCPs that were clearing and settling
CDS transactions in the U.S. and in Europe to continue to clear and
settle CDS transactions. The Temporary Rules also enable other CCPs
that obtain exemptive orders to start clearing and settling CDS
transactions in the manner contemplated by the exemptive orders.
    Since the adoption of the Temporary Rules and issuance of the
exemptive orders, ICE Trust U.S. LLC (``ICE Trust''), and ICE Clear
Europe, Ltd. (``ICE Clear Europe'') have been actively engaged as CCPs
in clearing CDS transactions in reliance on our exemptions. As of
October 25, 2010, ICE Trust has cleared 157,691 CDS transactions with a
notional value of $7.8 trillion. As of October 25, 2010, ICE Clear
Europe has cleared 175,102 CDS transactions with a notional value of
[euro]3.8 trillion. We believe that the clearing of CDS transactions by
ICE Trust and ICE Clear Europe has contributed and we anticipate will
continue to contribute to increased transparency and the reduction of
systemic risk in the CDS market.
    We also granted exemptive orders to three other CCPs to clear CDS
that have functioned as CCPs in clearing CDS transactions in accordance
with our exemptions.\25\ Two of these CCPs, The Chicago Mercantile
Exchange and Eurex Clearing AG have advised our staff that they intend
to continue to work with participants in the CDS market to promote
their CCP services.
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    \25\ See Exchange Act Release Nos. 60373 (Jul. 23, 2009), 74 FR
37740 (Jul. 29, 2009) and 61975 (Apr. 23, 2010), 75 FR 22641 (Apr.
29, 2010) (temporary exemptions for Eurex Clearing AG); Exchange Act
Release Nos. 59578 (Mar. 13, 2009), 74 FR 11781 (Mar. 19, 2009),
61164 (Dec. 14, 2009), 74 FR 67258 (Dec. 18, 2009), and 61803 (Mar.
30, 2010), 75 FR 17181 (Apr. 5, 2010) (temporary exemptions for
Chicago Mercantile Exchange Inc.); and Exchange Act Release No.
59164 (Dec. 24, 2008) 74 FR 139 (Jan. 2, 2009) (temporary exemption
for LIFFE A&M and LCH.Clearnet Ltd.). LIFFE A&M and LCH.Clearnet
Ltd, allowed their temporary exemption to expire.
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    The extension of the Temporary Rules and the exemptive orders will
terminate at the time that the clearing provisions and rules
implementing of Title VII of the Dodd-Frank Act become effective. The
extension of such Temporary Rules is designed to the foster continued
development and operation of CCPs for eligible CDS, which we believe is
in the public interest. Once the Dodd-Frank Act provisions become
effective, a new permanent and comprehensive regulatory regime for all
security-based swaps will be implemented and the Temporary Rules
affecting solely eligible CDS will no longer be necessary or
appropriate. Therefore, due to the limited time the Temporary Rules
will be needed, and our ongoing efforts to implement the provisions of
the Dodd-Frank Act, we are extending the Temporary Rules until July 16,
2011.

III. Certain Administrative Law Matters

    Section 553(b) of the Administrative Procedure Act (``APA'')
generally requires an agency to publish notice of a proposed rule
making in the Federal Register. This requirement does not apply,
however, if the agency ``for good cause finds (and incorporates the
finding and a brief statement of reasons therefore in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' For the reasons we
discuss throughout this release, we believe that there is good cause to
extend these rules until July 16, 2011 without further notice or
opportunity for comment.
    We sought comment on the Temporary Rules and as noted above, we
received little comment when they were originally promulgated. In
addition to the specific comments that we sought and received in
connection with the Temporary Rules in January 2009, we have sought
public input on implementing the provisions of the Dodd-Frank Act,
which requires extensive public notice and comment rulemaking that will
supplant and subsume the exemptive rules we have crafted as a temporary
measure.\26\ Further, we will seek public comment in connection with
the proposed rulemaking to implement the specific provisions of the
Dodd-Frank Act relating to the treatment of security-based swaps under
the Securities Act and the Exchange Act. Commenters will have full
opportunity to provide their views on this new comprehensive regulatory
regime.
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    \26\ See Public Comments on SEC Regulatory Initiatives Under the
Dodd-Frank Act, located at http://www.sec.gov/spotlight/regreformcomments.shtml. None of these comments addressed the
Temporary Rules.
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    Absent the extension of the Temporary Rules, such Temporary Rules
would expire at the end of November 2010, prior to the effective date
of the provisions of Title VII of the Dodd-Frank Act. The rules have
been in place since January 2009, and CCPs have relied on them in
clearing eligible CDS. Extending the expiration date of the Temporary
Rules would not affect the substantive provisions of those rules.
Without further extending the expiration date of the Temporary Rules to
the time of effectiveness of the provisions of Title VII of the Dodd-
Frank Act, CCPs would not be able to continue to clear eligible CDS in
accordance with the exemptive orders they have received from us.
Extending the expiration date of the Temporary Rules will allow exempt
CCPs to continue to clear eligible CDS until the provisions of the
Dodd-Frank Act, including the rules promulgated under such Act, become
effective. This will occur by the July 2011 expiration of the Temporary
Rules. Therefore, we believe there is good cause to extend the
Temporary Rules until July 16, 2011 and find that notice and
solicitation of comment on the extension to be impracticable,
unnecessary, or contrary to the public interest.\27\
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    \27\ This finding also satisfies the requirements of 5 U.S.C.
808(2), allowing the rule amendments to become effective
notwithstanding the requirements of 5 U.S.C. 801 (if a Federal
agency finds that notice and public comment are ``impractical,
unnecessary or contrary to the public interest,'' a rule shall take
effect at such time as the Federal agency promulgating the rule
determines.'').
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    The APA also generally requires that an agency publish an adopted
rule in the Federal Register 30 days before it becomes effective.\28\
However, this requirement does not apply if the agency finds good cause
not to delay the effective date.\29\ For reasons similar to those
explained above, the Commission finds good cause not to delay the
effective date.
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    \28\ 5 U.S.C. 553(d).
    \29\ 5 U.S.C. 553(d)(3).
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IV. Paperwork Reduction Act

    The Temporary Rules do not impose any new ``collections of
information'' within the meaning of the Paperwork Reduction Act of 1995
(``PRA''),\30\ nor do they create any new filing, reporting,
recordkeeping, or disclosure reporting requirements for a CCP that is
or will be issuing or clearing eligible CDS. Accordingly, we did not
submit the Temporary Rules to the Office of Management and Budget for
review in accordance with the PRA when we adopted them in January
2009.\31\ We requested comment on whether our conclusion that there are
no collections of information is correct, and we did not receive any
comment. The extension of the expiration dates does not change our
analysis.
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    \30\ 44 U.S.C. 3501 et seq.
    \31\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
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V. Cost-Benefit Analysis

    In January 2009, we adopted the Temporary Rules, which exempt
eligible CDS that are or will be issued or cleared by a CCP and offered
and sold only to eligible contract participants from all provisions of
the Securities Act, other than the Section 17(a) anti-fraud provision,
as well as from the

registration requirements under Section 12 of the Exchange Act and from
the provisions of the TIA. In September 2009, we adopted amendments to
such rules to extend their expiration date to November 30, 2010. The
Temporary Rules were intended to facilitate the operation of one or
more CCPs to act as a clearing agency in the CDS market to reduce some
of the risks in the CDS market. Today, we are adopting amendments to
such rules to extend their expiration date to July 16, 2011.
    Since the adoption of the Temporary Rules and issuance of the
exemptive orders, ICE Trust and ICE Clear Europe have been actively
engaged as a CCP in clearing CDS transactions in accordance with our
exemptions.
    On July 21, 2010, the Dodd-Frank Act was enacted. Among other
things, the Dodd-Frank Act amends the Exchange Act to require that
transactions in security-based swaps be cleared through a clearing
agency that is either registered with the Commission or exempt from
registration if the transactions are of a type that the Commission
determines must be cleared, unless an exemption from mandatory clearing
applies. As noted above, the Dodd-Frank Act directs us to regulate,
among other things, clearing agencies for, and the clearing of,
security-based swaps, which include certain CDS, and in separate
rulemakings we will be proposing rules to implement the clearing
provisions of the Dodd-Frank Act, among others. Extending the
expiration dates of the Temporary Rules until July 16, 2011 will allow
us to propose those rules, which will be subject to notice and comment.
Pending the effective date of the clearing provisions of the Dodd-Frank
Act, however, the Temporary Rules are needed to enable the CCPs to
continue to clear eligible CDS in accordance with the exemptive orders
we have provided.

A. Benefits

    The Temporary Rules and the CCP exemptive orders facilitate the
operation of CCPs in the CDS market. We believe that extending the
Temporary Rules and the CCP exemptive orders will continue to
facilitate the operation of CCPs \32\ and the use by eligible contract
participants of CDS CCPs while enabling us to provide some oversight of
the non-excluded CDS market.\33\ We believe that the operation of two
CCPs in accordance with our exemptions has increased transparency,\34\
increased available information about exposures to particular reference
entities or reference securities,\35\ and reduced risks to participants
in the market for CCP-cleared CDS.\36\ Not extending the termination
date could cause significant disruptions in this market. Therefore, we
believe that extending the termination date of the Temporary Rules
provides important benefits to CDS market participants.
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    \32\ See Karen Brettell, Banks to submit 95 pct of eligible CDS
for clearing (Sep. 1, 2009), available at http://www.reuters.com/article/euRegulatoryNews/idUSN0150814420090901?pageNumber=1&virtualBrandChannel=10522.
    \33\ See e.g., Exchange Act Release No. 59527, supra Note 10
(our exemptions require that the CCPs provide us with, among other
things, access to conduct on-site inspections of facilities, records
and personnel).
    \34\ See Testimony of Mark Lenczowski, supra Note 12.
    \35\ See e.g., Exchange Act Release No. 59527, supra Note 26.
    \36\ See IntercontinentalExchange, supra Note 13.
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B. Costs

    Absent the exemptions provided by the Temporary Rules, a CCP may
have to file a registration statement covering the offer and sale of
the eligible CDS, may have to satisfy the applicable provisions of the
TIA, and may have to register the class of eligible CDS that it has
issued or cleared under the Exchange Act, which would provide investors
with the disclosures and other protections of these requirements,
including civil remedies in addition to antifraud remedies.
    We recognize that a consequence of extending the exemptions will be
the unavailability of certain remedies under the Securities Act and the
Exchange Act and certain protections under the TIA. While an investor
would be able to pursue an antifraud action in connection with the
purchase and sale of eligible CDS under Exchange Act Section 10(b),\37\
it would not be able to pursue civil remedies under Sections 11 or 12
of the Securities Act.\38\ We could still pursue an antifraud action in
the offer and sale of eligible CDS issued or cleared by a CCP.\39\ We
believe that the incremental costs from the extension of the expiration
date of the Temporary Rules will be minimal because the amendments are
merely an extension of such Temporary Rules and such extension will not
affect the information and remedies available to investors as a result
of the Temporary Rules.
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    \37\ 15 U.S.C. 78j(b).
    \38\ 15 U.S.C. 77k and 77l.
    \39\ See 15 U.S.C. 77q and 15 U.S.C. 78j(b).
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VI. Consideration of Impact on the Economy, Burden on Competition and
Promotion of Efficiency, Competition and Capital Formation

    Section 23(a)(2) of the Exchange Act \40\ requires us, when
adopting rules under the Exchange Act, to consider the impact that any
new rule would have on competition. Section 23(a)(2) prohibits us from
adopting any rule that would impose a burden on competition that is not
necessary or appropriate in furtherance of the purposes of the Exchange
Act. In addition, Section 2(b) \41\ of the Securities Act and Section
3(f) \42\ of the Exchange Act require us, when engaging in rulemaking
where we are required to consider or determine whether an action is
necessary or appropriate in the public interest, to also consider
whether the action will promote efficiency, competition, and capital
formation.
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    \40\ 15 U.S.C. 78w(a)(2).
    \41\ 15 U.S.C. 77b(b).
    \42\ 15 U.S.C. 78c(f).
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    The Temporary Rules we are extending today exempt eligible CDS
issued or cleared by a CCP from all provisions of the Securities Act,
other than the Section 17(a) antifraud provision, as well as from the
registration requirements under Section 12 of the Exchange Act and the
provisions of the TIA. Because these exemptions are available to any
CCP offering and selling eligible CDS, we do not believe that extending
the exemptions imposes a burden on competition. We also anticipate that
extending the ability to settle CDS through CCPs will continue to
improve the transparency of the CDS market and provide greater
assurance to participants as to the capacity of the eligible CDS
counterparty to perform its obligations under the eligible CDS. ICE
Trust, for example, makes available on its Web site information about
open interests, or net exposure, volume and pricing of CDS
transactions. We believe that increased transparency in the CDS market
could help to decrease further market turmoil and thereby facilitate
the capital formation process.

VII. Regulatory Flexibility Act Certification

    The Commission hereby certifies pursuant to 5 U.S.C. 605(b) that
extending Temporary Rules will not have a significant economic impact
on a substantial number of small entities. The Temporary Rules exempt
eligible CDS that are or will be issued or cleared by a CCP. None of
the entities that are eligible to meet the requirements of the

exemption from registration under Section 17A is a small entity.

VIII. Statutory Authority and Text of the Rules and Amendments

    The amendments described in this release are being adopted under
the authority set forth in Sections 18, 19 and 28 of the Securities
Act; Sections 12(h), 23(a) and 36 of the Exchange Act; and Section
304(d) of the TIA.

List of Subjects in 17 CFR Parts 230, 240 and 260

    Reporting and recordkeeping requirements, Securities.

Text of the Rules and Amendments

0
Accordingly, we are temporarily amending 17 CFR parts 230, 240, and 260
as follows and the expiration date for the temporary rules published
January 22, 2009 (74 FR 3967), and extended to November 30, 2010, is
further extended from November 30, 2010, to July 16, 2011.

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
1. The authority citation for Part 230 continues to read, in part, as
follows:

    Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r,
77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78t, 78w,
78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37,
unless otherwise noted.

* * * * *

Sec. Sec.  230.146 and 230.239T  [Amended]

0
2. In Sec.  230.146(c)T, in the last sentence, remove the words
``November 30, 2010'' and add, in their place, the words ``July 16,
2011''.
0
3. In Sec.  230.239T(e), remove the words ``November 30, 2010'' and
add, in their place, the words ``July 16, 2011''.

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934

0
4. The authority citation for Part 240 continues to read, in part, as
follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3,
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i,
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78o-4, 78p, 78q, 78s,
78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3,
80b-4, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350; and 12 U.S.C.
5221(e)(3) unless otherwise noted.

* * * * *

Sec. Sec.  240.12a-10T and 240.12h-1  [Amended]

0
5. In Sec.  240.12a-10T(b), remove the words ``November 30, 2010'' and
add, in their place, the words ``July 16, 2011''.
0
6. In Sec.  240.12h-1(h)T, in the last sentence, remove the words
``November 30, 2010'' and add, in their place, the words ``July 16,
2011''.

PART 260--GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF
1939

0
7. The authority citation for Part 260 continues to read as follows:

    Authority: 15 U.S.C. 77eee, 77ggg, 77nnn, 77sss, 78ll(d), 80b-3,
80b-4, and 80b-11.

Sec.  260.4d-11T  [Amended]

0
8. In Sec.  260.4d-11T, in the last sentence, remove the words
``November 30, 2010'' and add, in their place, the words ``July 16,
2011''.

    Dated: November 19, 2010.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-29702 Filed 11-24-10; 8:45 am]
BILLING CODE 8011-01-P


" Johnston, A. Todd" < ajohnston@ nma. org>

05/ 19/ 2006 12: 19 PM T o Jason Burnett/ DC/ USEPA/ US@ EPA c c S u b j e c t NMA Meeting Request Jason,

This is a follow up to yesterday's call. We would like to arrange a meeting with the Assistant Administrator for Air to discuss EPA's proposed coarse particulate NAAQS. As we discussed, Tamara Thies, with the National Cattleman's Beef Association ( NCBA) has made a similar request.

We would like to include the following representatives of the mining and agriculture industries in our briefing:

Hal Quinn, Sr. Vice President and General Counsel, National Mining Association ( NMA) Todd Johnston, Director, Air Quality, NMA Robert Connery, Counsel, Holland and Hart Jay Truitt, Vice President of Government Affairs, NCBA Tamara Thies, Director of Environmental Issues, NCBA We would also like to include Dr. Jonathan Borak in this briefing. Dr. Borak, with Yale University's School of Medicine, is an epidemiologist, toxicologist and occupational health expert ( Curriculum Vitae attached). At our request, he has undertaken an independent review of the scientific studies underpinning EPA's proposal and we believe his comments provide significant insight to the scientific debate surrounding this issue. I understand that time with your office is limited, but providing a detailed presentation on our position, which is grounded in the scientific studies underpinning the proposal, and allowing for adequate Q& A, may take a little bit longer than the one hour time typically allocated for these meetings. In this regard, whatever flexibility you might be able to manage in terms of timing would be appreciated.

Please contact me with respect to the details of this meeting as well as any questions you might have.

Thank you,

Todd A. Todd Johnston Director of Air Quality National Mining Association 101 Constitution Avenue, NW Suite 500 East Washington, DC 20001 202 463 2668 ajohnston@ nma. org


[Federal Register Volume 85, Number 2 (Friday, January 3, 2020)]
[Rules and Regulations]
[Page 216]
[FR Doc No: 2019-27958]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2019-0949]

Safety Zone; New Orleans, LA

AGENCY: Coast Guard, DHS.

ACTION: Notice of enforcement of regulation.

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

SUMMARY: The Coast Guard will enforce a temporary safety zone between
mile marker (MM) 94 and MM 95 above Head of Passes, Lower Mississippi
River, LA. This action is necessary to provide for the safety of life
on these navigable waters near New Orleans, LA, during a fireworks
display on January 11, 2020. During the enforcement periods, the
operator of any vessel in the regulated area must comply with
directions from the Patrol Commander or any Official Patrol displaying
a Coast Guard ensign.

DATES: The regulations in 33 CFR 165.845 will be enforced from 9 p.m.
through 11 p.m. on January 11, 2020.

FOR FURTHER INFORMATION CONTACT: If you have questions about this
notice of enforcement, call or email Lieutenant Commander Corinne
Plummer, Sector New Orleans, U.S. Coast Guard; telephone<PHONE_NUMBER>,
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Coast Guard will enforce the safety zone
located in 33 CFR 165.845 for the College Football Playoffs Fireworks
Display event. The regulations will be enforced from 9 p.m. through 11
p.m. on January 11, 2020. This action is being taken to provide for the
safety of life on navigable waterways during this event, which will be
located between MM 94 and MM 95 above Head of Passes, Lower Mississippi
River, LA. During the enforcement periods, if you are the operator of a
vessel in the regulated area you must comply with directions from the
Patrol Commander or any Official Patrol displaying a Coast Guard
ensign.
    In addition to this notice of enforcement in the Federal Register,
the Coast Guard plans to provide notification of this enforcement
period via a Marine Safety Information Bulletin and Broadcast Notice to
Mariners.

    Dated: December 20, 2019.
K.M. Luttrell,
Captain, U.S. Coast Guard, Captain of the Port Sector New Orleans.
[FR Doc. 2019-27958 Filed 1-2-20; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 79, Number 154 (Monday, August 11, 2014)]
[Notices]
[Pages 46892-46894]
[FR Doc No: 2014-18876]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-72760; File No. SR-NASDAQ-2014-076]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Utilize a Trade Condition Modifier

August 5, 2014.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 28, 2014, The NASDAQ Stock Market LLC (``NASDAQ'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') a proposed rule change as described in Items I, II and
III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    NASDAQ proposes a rule change to utilize a trade condition modifier
recently adopted by the Joint Self-Regulatory Organization Plan
Governing the Collection, Consolidation and Dissemination of Quotation
and Transaction Information for Nasdaq-Listed Securities Traded on
Exchanges on an Unlisted Trading Privilege Basis (the ``Plan''). NASDAQ
will implement the proposed change on or about August 25, 2014.
    The text of the proposed rule change is below. Proposed new
language is in italics.
* * * * *

4754. NASDAQ Closing Cross

    No Change.
    (a) Processing of Nasdaq Closing Cross. The Nasdaq Closing Cross
will begin at 4:00:00, and post-market hours trading will commence
when the Nasdaq Closing Cross concludes.
    (1)-(3) No Change.

    (4) All orders executed in the Nasdaq Closing Cross will be
executed at the Nasdaq Closing Cross price, trade reported
anonymously, and disseminated via the consolidated tape. The Nasdaq
Closing Cross price will be the Nasdaq Official Closing Price for
stocks that participate in the Nasdaq Closing Cross. Fifteen minutes
after the close of trading, NASDAQ will disseminate via the network
processor a trade message setting the NASDAQ Official Closing Price
as the official Consolidated Last Sale Price in each NASDAQ-listed
security in which one round lot or more is executed in the NASDAQ
Closing Cross where the closing price differs from the Consolidated
Last Sale Price.
    (5)-(7) No Change.
* * * * *
    (b) Not applicable.
    (c) Not applicable.

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

    In its filing with the Commission, NASDAQ included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of those statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant parts of such
statements.

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

1. Purpose
    The official closing price of NASDAQ-listed securities is a
critical value for millions of investors and the trillions of dollars
they invest in equity securities and assets linked to the value of
equity securities. For example, mutual fund complexes, exchange traded
fund sponsors, and index providers each utilize an official closing
price to value their assets under management or license. Broker-
dealers, including retail brokerages holding millions of investors'
accounts, use official closing prices to display their portfolio
values. Internet portals and online content providers do the same for
more varied uses.
    Currently, industry participants use multiple different values to
determine the closing price of a NASDAQ-listed security. Some choose
consolidated data, where the closing price is the last, unmodified,
regular-way trade of the day in each security. Other participants
choose a market-specific closing price, such as the NASDAQ Official
Closing Price (``NOCP'') set forth in NASDAQ Rule 4754. Market
participants can use the exchange-specific closing price from another
exchange, each of which is permitted to disseminate an official closing
price via the network processor for NASDAQ-listed securities. An
exchange-specific closing price is simple to create and disseminate;
markets need only append the ``.M'' modifier to a trade message at or
after the close of trading. This multiplicity of choices has benefits
but it can create ambiguity as well.
    The Operating Committee of the Plan has attempted to reduce this
ambiguity by allowing NASDAQ, as the listing market, to create a
clearer official consolidated closing price. On May 8, 2013, the
Operating Committee voted unanimously to approve the creation of the
Corrected Consolidated Close Modifier. According to the written
proposal the Operating Committee approved, the Modifier was intended to
``allow the Listing Markets to establish the official Consolidated Last
price as needed.'' The Modifier will impact the Consolidated Last Sale
and the Consolidated High and Low for each security. It will not impact
statistics for individual exchanges, such as the Participant Open,
Last, High/Low or Volume. Use of the Modifier will not impact
Consolidated Volume because it will be appended to a trade message with
a volume of zero shares. For NASDAQ-listed securities it can be
disseminated once and only once per day per symbol.
    NASDAQ plans to implement its use of the Modifier in a simple,
straightforward manner. At fifteen minutes after the close each day,
NASDAQ will disseminate to the network processor one trade message with
the Modifier appended for each security in which at least one round lot
was executed in the NASDAQ Closing Cross at a price that differs from
the consolidated closing price reported by the network processor. The
network processor will then disseminate the trade messages to market
participants via the UTP Trade Data Feed. The trade message for each
security will be based on the price of the NOCP and will have a volume
of zero shares as required. NASDAQ already disseminates the NOCP on its
proprietary data feeds, including NASDAQ Last Sale, NASDAQ Basic and
NASDAQ TotalView so no change to those feeds is necessary.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \3\ in general, and furthers the objectives of Section
6(b)(5) of the Act \4\ in particular, in that the proposal is designed
to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general to protect investors and the
public interest. The proposal supports these policies in that it
establishes more clearly an official consolidated closing price for
NASDAQ-listed securities. Clarity regarding this value will benefit
investors of different types and strategies, whether long-term or
short-term focused, professional or non-professional status, or
individual, member or institutional. The official consolidated closing
price will be widely disseminated, clearly marked, and available at no
additional cost.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 78f(b).
    \4\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. To the contrary,
NASDAQ's proposal merely implements a unanimous decision of the
Operating Committee of the Plan that is designed to benefit investors
equally without regard to competition.

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

    Written comments were neither solicited nor received.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate if consistent with
the protection of investors and the public interest, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \5\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\6\
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78s(b)(3)(A).
    \6\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.

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

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2014-076 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2014-076. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room on official business
days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such
filing also will be available for inspection and copying at the
principal offices of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASDAQ-2014-076, and should be submitted on or before
September 2, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
---------------------------------------------------------------------------

    \7\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-18876 Filed 8-8-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Notices]
[Pages 4288-4289]
[FR Doc No: 2016-01472]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2012-0533; FRL--9940-80-OEI]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; NSPS for Phosphate Fertilizer Industry
(Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The Environmental Protection Agency has submitted an
information collection request (ICR), ``NSPS for Phosphate Fertilizer
Industry (40 CFR part 60, subparts T, U, V, W, and X) (Renewal)'' (EPA
ICR No. 1061.13, OMB Control No. 2060-0037), to the Office of
Management and Budget (OMB) for review and approval in accordance with
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This is a
proposed extension of the ICR, which is currently approved through
January 31, 2016. Public comments were previously requested, via the
Federal Register (80 FR 32116), on June 5, 2015 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 February 25,
2016.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OECA-2012-0533, to: (1) EPA online using www.regulations.gov (our
preferred method), or by email to<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: Patrick Yellin, Monitoring,
Assistance, and Media Programs Division, Office of Compliance, Mail
Code 2227A, 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, EPA 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: Owners and operators of affected facilities are required
to comply with reporting and record keeping requirements for the
general provisions of 40 CFR part 60, subpart A, as well as for the
provisions of Subparts T, U, V, W, and X. This includes submitting
initial notifications, performance tests and periodic reports and
results, and maintaining records of the occurrence and duration of any
startup, shutdown, or malfunction in the operation of an affected
facility, or any period during which the monitoring system is
inoperative. These reports are used by EPA to determine compliance with
the standards.
    Form Numbers: None.
    Respondents/affected entities: New and existing facilities that
engage in the manufacture of phosphate fertilizers and have a design
capacity of more than 15 tons of equivalent phosphorous pentoxide
(P2O5) feed per calendar day.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subparts T, U, V, W, and X).
    Estimated number of respondents: 13 (total).

    Frequency of response: Initially, occasionally and semiannually.
    Total estimated burden: 1,390 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $460,000 (per year), which includes $320,000
in annualized capital/startup and/or operation & maintenance costs.
    Changes in the Estimates: The increase in burden from the most-
recently approved ICR is due to accounting for the assumption that all
sources will spend one hour annually reviewing and understanding the
rule requirements. Previously, the assumption was that only new sources
would incur this burden.
    There is a small decrease in O&M cost in this ICR due to rounding
of all calculated values to three significant digits. In addition,
there is an increase of two annual responses due to a minor correction.
The previous ICR did not account for notifications of operational
changes in calculating the number of responses.

Courtney Kerwin,
Acting-Director, Collection Strategies Division.
[FR Doc. 2016-01472 Filed 1-25-16; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: May 12, 2010 (Volume 75, Number 91)]
[Notices]
[Page 26749]
[DOCID:fr12my10-54]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2157-188]

Public Utility District No.1 of Snohomish County, WA; Notice of
Technical Conference for the Jackson Hydroelectric Project Settlement
Agreement

May 5, 2010.
    On October 14, 2009, the Public Utility District No. 1 of Snohomish
County, Washington (District), on behalf of itself, the city of
Everett, the city of Sultan, Tulalip Tribe, American Whitewater, and
six State and Federal agencies, filed a comprehensive settlement
agreement (Settlement) and Joint Explanatory Statement for the
relicensing of the Jackson Hydroelectric Project. On May 5, 2010, staff
issued a draft environmental assessment analyzing the terms and
conditions of the Settlement.
    Commission staff will hold a technical conference to discuss the
proposed license articles submitted by the District as part of its
Settlement and the Commission's draft environmental assessment.
    The technical conference will be held on Tuesday, June 8, 2010,
beginning at 9 a.m. (PST). The technical conference will be held at the
District's Electric Building Headquarters located at 2320 California
Street, Everett, Washington.
    For further information, contact David Turner at<PHONE_NUMBER>, or
by e-mail at<EMAIL_ADDRESS>
Kimberly D. Bose,
Secretary.
[FR Doc. 2010-11235 Filed 5-11-10; 8:45 am]
BILLING CODE 6717-01-P


Request for Temporary Exemption from the Requirements of a Tolerance

AF36 on Corn

EPA BIOPESTICIDES AND POLLUTION PREVENTION DIVISION COMPANY NOTICE OF
FILING FOR PESTICIDE PETITIONS PUBLISHED IN THE FEDERAL REGISTER
(7/1/2006)

EPA has received a pesticide petition  from Interregional Research
Project Number 4 (IR-4), Rutgers University, 500 College Road East,
Suite 201W, Princeton, NJ 08540 on behalf of the Arizona Cotton Research
and Protection Council, 3721 East Wier Avenue Phoenix, Arizona
85040-2933  proposing pursuant to section 408(d) of the Federal  Food,
Drug, and Cosmetic Act (FFDCA),  21 U.S.C. 346a(d), to amend 40 CFR part
180.1206 to establish a temporary tolerance exemption for the microbial
pesticide Aspergillus flavus AF36 in or on Corn.

Pursuant to section 408(d)(2)(A)(i) of the FFDCA, as amended,
Interregional Research Project Number 4 (IR-4), Rutgers University, 500
College Road East, Suite 201W, Princeton, NJ 08540 on behalf of the
Arizona Cotton Research and Protection Council has submitted the
following summary of information, data, and arguments in support of the
pesticide petition.  This summary was prepared by Interregional Research
Project Number 4 (IR-4) Rutgers University, 500 College Road East, Suite
201W, Princeton, NJ 08540 on behalf of the Arizona Cotton Research and
Protection Council 3721 East Wier Avenue Phoenix, Arizona 85040-2933 and
EPA has not fully evaluated the merits of the pesticide petition.  The
summary may have been edited by EPA if the terminology used was unclear,
the summary contained extraneous material, or the summary
unintentionally made the reader conclude that the findings reflected
EPA’s position and not the position of the petitioner.

I.   Interregional Research Project Number 4 (IR-4), Rutgers University,
500 College Road East, Suite 201W, Princeton, NJ 08540 on behalf of the
Arizona Cotton Research and Protection Council 3721 East Wier Avenue
Phoenix, Arizona 85040-2933]  Petition Summary

A.  Product name and Proposed Use Practices

	Aspergillus flavus AF36, a non-aflatoxin-producing strain of A. flavus,
is proposed for application to corn to reduce the incidence of aflatoxin
producing strains of A. flavus and thereby reduce aflatoxin
contamination of corn.  Aspergillus flavus AF36 which does not produce
aflatoxin, competitively excludes aflatoxin producing A. flavus strains
without increasing A. flavus in the environment in the long term.
Sterile wheat seed colonized with Aspergillus flavus AF36 is applied at
10 pounds of end-use product (total amount of active ingredient less
than 0.01 lb/acre) per acre.  The pesticide is currently being used in
certain counties in California and the States of Arizona and Texas in
cotton. The current submission proposes to establish a temporary
exemption from tolerance for residues of A. flavus AF36 on corn.

B.  Product Identity/Chemistry

	1. Identity of the pesticide and corresponding residues.    The
pesticide and corresponding residues are identified as Aspergillus
flavus AF36.

	2. Magnitude of residue at the time of harvest and method used to
determine the residue.   Aspergillus flavus AF36 is a naturally
occurring fungus that was originally isolated from cottonseed produced
in the Yuma Valley of Arizona.  Aspergillus flavus AF36 has been shown
to be naturally and consistently associated with corn grown in Texas.
A. flavus is a widespread fungus.  It is particularly well adapted to
the hot regions of Texas where it is widespread in the environment.  The
communities of A. flavus in the desert and in agricultural fields are
naturally composed of both aflatoxin producing (toxigenic) and aflatoxin
non-producing (atoxigenic) strains.  Both atoxigenic and toxigenic
strains have been found on essentially all plant material and soils in
Texas.  The goal of applications is to increase the percent of the
Aspergillus flavus community composed of the strain AF36 and to decrease
the percent of A. flavus that produces aflatoxins on the crop and the
field.

	3. A statement of why an analytical method for detecting and measuring
the levels of the pesticide residue are not needed.   A temporary
exemption from the requirement of a

tolerance for residues of the microbial pesticide A. flavus AF36 in/on
corn is being proposed for corn in Texas.   All lots of the active
ingredient (A. flavus isolate AF36) and the formulated product are
monitored as part of a rigorous quality control program. Starter
cultures of A. flavus isolate AF36 used in the production of the end-use
product are always screened for aflatoxin production using TLC and
appropriate standards. Quality control standards are zero tolerance in
the starter cultures and in the formulated product for aflatoxin
production, and for A. flavus not identified as A. flavus isolate AF36.
A. flavus AF36 has never been found to produce aflatoxin. Starter
cultures of A. flavus AF36 as well as end-use products containing this
active ingredient are also identified to isolate by vegetative
compatibility analysis.

C.  Mammalian Toxicological Profile

An acute oral toxicity test was performed whereby a single oral dose of
5,000 milligrams/kilogram (mg/kg) per animal of Aspergillus flavus AF36
colonized wheat seed was administered by gavage to five male and five
female Sprague Dawley rats.  The oral LD50 of Aspergillus flavus AF36
was determined to be greater than 5,000 mg/kg rat body weight.  No
clinical signs were observed during the 14 day study and no
abnormalities or adverse effects were observed in any of the rats upon
necropsy.

               An initial pulmonary rat study which resulted in
lethality in a significant number of animals treated with either the
live Aspergillus flavus AF36 in Tween 80 or heat killed Aspergillus
flavus AF36 in Tween 80.  Onset of symptoms was rapid after dosing with
all deaths occurring by day four of the study.  All rats surviving to
day four of the study recovered and all rats sacrificed (as scheduled)
on day 8 or day 15 of the study had totally eliminated viable
Aspergillus flavus AF36 from the lungs, caecal contents, and faeces.
There was no evidence of infectivity.  The aetiology of deaths was
unclear.  It appeared that Aspergillus flavus AF36 prepared using Tween
80 caused a severe acute inflammatory response.  Retrospective
literature review and consultation with a toxicologist supported the
theory that the responses were a result of a synergism with Tween 80
and/or of Tween 80 breakdown products formed during preparation of the
spore suspension.

              A second rat study was therefore undertaken.  In the
second study the conidia were both washed from the wheat and suspended
in sterile physiological saline instead of Tween 80.  Animals (2 male
and 2 female for each treatment level) were dosed at 0, 105, 106, 107,
and 108 colony forming units per rat.  There were no clinical signs in
any of the treatment groups considered to be associated with the test
substance.  Rats were sacrificed at day 8 without treatment associated
mortality.  No abnormalities were observed in any of the animals at the
macroscopic examination at termination.

	Based on these two mammalian studies, it was concluded that Aspergillus
flavus AF36 does not present either a toxicological or an infectious
risk to mammals.

	Data waivers were requested for the toxicology studies listed below on
the following basis:(1) researchers and other workers have worked with
Aspergillus flavus AF36 at the Southern Regional Research Center for
over 10 years and in commercial fields (1996 to 1998) and in hand picked
field plots (1989 to 1994) without report of any adverse health effects;
(2) Aspergillus flavus AF36 is widely distributed in the environment and
its occurrence is natural; and (3) the label will require applicators
and other handlers to wear Personal Protective Equipment (PPE) such as
waterproof gloves, a dust/mist filtering respirator with the appropriate
NIOSH approval prefix N-95, P-95, or R-95, coveralls, long sleeved shirt
and long pants, and shoes plus socks, and goggles, so exposure should
not be a problem.  Applications will involve aerial application by
mixers/handlers who are licensed and trained to even handle restricted
materials. At the 10 lb/acre application rate of the formulated
material, the total amount of active ingredient is less than 0.01
lb/acre. Applications of AF36 do not significantly impact the total
amount of Aspergillus flavus in the soil or crop, but only change the
proportion of the AF36 strain in relation to the overall soil or crop
population. Since the product is applied as a granular formulation on
wheat,  exposure from drift is minimal.

	1. Acute dermal toxicity. This study was waived based upon the lack of
toxicity in animals dosed orally . While Aspergillus flavus has been
reported to be a dermal sensitizer, this testing is not warranted, since
the PPE required on the label will provide adequate protection from
dermal exposure to workers and pesticide handlers.

 	2. Primary dermal irritation. This study was waived based upon the
lack of toxicity in animals dosed orally.  Aerial applications will be
made by mixers/handlers and applicators, who are required to wear
appropriate PPE, and are licensed and trained to even handle restricted
materials. At the 10 lb/acre application rate of the formulated
material, the total amount of active ingredient is less than 0.01
lb/acre. Applications of AF36 do not significantly impact the total
amount of Aspergillus flavus in the soil or crop, but only change the
proportion of the AF36 strain in relation to the overall population.
Since the product is applied as a granular formulation on wheat,
exposure from drift is minimal.

	3 Primary eye irritation.  This study was waived based upon the use of
appropriate PPE, including goggles, and other factors listed above.
Since the product is applied aerially as a granular formulation on
wheat, exposure from drift is expected to be minimal.

	4. Acute  Intraperitoneal.  This study was waived based upon the lack
of toxicity in animals dosed orally and by intratracheal instillation.
In addition, the factors listed above will mitigate exposure, which is
expected to be minimal.

	5.  Genotoxicity, reproductive and developmental toxicity, subchronic
toxicity and chronic toxicity testing were not performed, since no
adverse effects were observed in the acute toxicology study Tier 1
studies.   Tier II (885.3550) , subchronic toxicology study (USEPA OPPTS
885.3600) and chronic feeding studies (guideline 152-50) are only
required if triggered by adverse effects observed in Tier I studies.

D.  Aggregate Exposure

	1. Dietary exposure.

	i. Food.   Aspergillus flavus AF36 is a naturally occurring organism,
which does not produce aflatoxin and is thus safer than the
aflatoxin-producing A. flavus isolates that produce aflatoxin.  Proposed
uses and application rates will not result in increases in the total
population of A. flavus on the mature crop beyond naturally occurring
background levels.  Aspergillus flavus AF36, has been shown to
significantly reduce the levels of aflatoxin in corn at harvest without
changing the quantity of A. flavus on the crop.  Furthermore, the
proposed use and application rate will not increase exposure of humans
to A. flavus by dietary means.   Applications of Aspergillus flavus AF36
do not increase the indigenous populations of A. flavus associated with
the harvested crop.  The applications merely alter the composition of
the fungal community associated with the mature crop so that aflatoxin
producing strains are far less frequent.  The result is a much lower
incidence of aflatoxins in the crop and in the environment associated
with the developing and mature crop.

	ii. Drinking water Aspergillus flavus AF36 is a naturally occurring
organism that is already widespread in the environment and is not
considered to be a risk to drinking water.  Both percolation through
soil and municipal treatment of drinking water would reduce the
possibility of exposure of A. flavus through the drinking water.
Applications of Aspergillus flavus AF36 do not increase the long-term
populations of A. flavus in the environment, and thus are not expected
to influence the relationship of A. flavus to water sources.
Applications merely change the composition of the A. flavus community so
that aflatoxins are less common in the environment.

	2. Non-dietary exposure.   The potential for non-occupational,
non-dietary exposure to the general population is not expected to be
significant and is not expected to present any risk of adverse health
effects.]

E.  Cumulative Exposure

	There are no other registered products containing Aspergillus flavus
AF36 or any other isolates (strains) of the microbial active ingredient.
 Data submitted show that the fungal metabolite of concern which is
aflatoxin is not produced by Aspergillus flavus AF36.   Aspergillus
flavus AF36 has been shown to exclude aflatoxin producing fungi
competitively from the developing crop and to reduce aflatoxin
contamination of corn.  Data show that the proposed use will not result
in appreciable increases in the long-term population of A. flavus on the
crop beyond naturally occurring levels.  Furthermore, there is no
expectation of cumulative effects with other pesticides.

F.  Safety Determination

	1. U.S. population. Aspergillus flavus AF36 is a naturally occurring
organism. This isolate has low toxicity as demonstrated by the acute
oral toxicity study in rats.  A. flavus is ubiquitous throughout the hot
desert valleys in Arizona.  Studies have shown that treatment of cotton
fields just prior to flowering with sterile wheat seed colonized by
Aspergillus flavus AF36 at 10 lbs. per acre does not increase the
long-term populations of A. flavus either on the crop at maturity or in
the soil 1 year after application.  Based on this information, IR-4 is
of the opinion that the aggregate exposure to A. flavus over a lifetime
should not change with application of Aspergillus flavus AF36, and
exposure to both aflatoxin producing A. flavus strains and aflatoxin
should decrease.  This should be beneficial to human health.  Thus,
there is a reasonable certainty that no harm will result from aggregate
exposure to Aspergillus flavus AF36.

	2. Infants and children.   Based on the lack of toxicity and natural
occurrence, there is reasonable certainty that no harm to infants,
children, or adults will result from aggregate exposure to Aspergillus
flavus AF36.  Exempting Aspergillus flavus AF36 from the requirement of
a tolerance should pose no significant risk to humans or the
environment.

G.  Effects on the Immune and Endocrine Systems

	Aspergillus flavus AF36 is a naturally occurring organism, which does
not produce aflatoxin, and is thus safer than the A. flavus isolates
that produce aflatoxin.  To date there is no evidence to suggest that
Aspergillus flavus AF36 functions in a manner similar to any known
hormone, or that it acts as an endocrine disrupter.

H.  Existing Tolerances

	The registrant is not aware of any existing tolerances or tolerance
exemptions for Aspergillus flavus AF36, other than the tolerance
exemption on cotton (40 CFR 180.1206)

I. Efficacy Data

            The following information was presented for a tolerance
exemption for AF36 on cotton.  The information is relevant for corn
because corn is grown in rotation with cotton. Therefore, the
farms(soil) which would be treated with AF36 in corn are already able to
be treated when those same fields are planted to cotton.  This request
is for a temporary exemption from the requirement of a tolerance for
AF36 on corn, as part of the EUP contained herein.  Existence of
aflatoxins in the environment is a public health hazard, and as such
data were submitted to demonstrate that proper use of Aspergillus flavus
AF36 results in reductions in the average aflatoxin producing potential
of fungi resident in treated areas and in reductions in the quantity of
aflatoxins in crops.

	In field tests prior to 1996, the aflatoxin content of cottonseed was
shown to be inversely related to the proportion of the A. flavus
community on the crop composed of Aspergillus flavus AF36. Detailed
analyses of the aflatoxin content of commercial fields from 1996 through
1998 confirmed that reduced aflatoxin levels were associated with
displacement of aflatoxin producers by Aspergillus flavus AF36 from
treated crops and that treatments were associated with up to 90%
reductions in crop aflatoxin content.  Efficacy of applications of
Aspergillus flavus AF36 in displacing aflatoxin producers was
demonstrated for fungal communities both on cottonseed from treated
crops at harvest and in soils of treated fields one year after
treatment.  This included cotton crops treated in 1996 (112 acres
treated), 1997 (463 acres treated), 1998 (499 acres), 1999 (10,488
acres), 2000 (16,725 acres) and 2001 (19,975 acres treated).

	Displacement of aflatoxin producers is indicated by the proportion of
A. flavus communities composed of Aspergillus flavus strain AF36.   In
1996 average incidence of AF36 on treated crops was 88.5% and in the
soil one year after treatment, 85.2%.  Incidences of AF36 on treated
crops were 78% and 67% in 1997 and 1998, respectively, and in the soil
one year after treatment incidences were 72% and 77%, respectively.
Successful displacement was also observed as the acreage treated rapidly
expanded from 1999 to 2001 with average incidences of AF36 on treated
crops ranging from 57% in 1999 to 66% in 2001.  Applications were
particularly effective at displacing the high aflatoxin producing S
strain of A. flavus.  S strain isolates produce more aflatoxins than
other A. flavus isolates and are prominent in soils of cotton producing
areas of Arizona and South Texas.

	The use of  Aspergillus flavus AF36 caused long-term reductions in the
aflatoxin producing potential of fungal communities in agricultural
fields.  Aspergillus flavus AF36 retained atoxigenicity (failure to
produce aflatoxins) upon repeated reisolation from treated fields one,
two, or three years after treatment. Field averages for aflatoxin
production by the displaced S strain isolates of A. flavus ranged from
7100-ppb aflatoxin to 22700 ppb aflatoxin. Thus, there was a long-term
reduction in the potential of fungal communities to produce aflatoxins
in treated areas.

	There are preliminary data indicating that A. flavus AF36 is effective
in corn as well. In a study, corn  treated with AF36 reduced aflatoxin
contamination by 80 to 95 %.  The purpose of this temporary exemption
from tolerance is to cover the use of A. flavus under an Experimental
Use Permit so that additional efficacy data can be generated.

J.  International Tolerances

There are no Codex maximum residue levels established for residues of
Aspergillus flavus AF36.  Aspergillus flavus AF36 containing products
are presently not registered for pest control outside of the United
States.

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