[Federal Register: April 7, 2010 (Volume 75, Number 66)]
[Rules and Regulations]
[Page 17566-17571]
[DOCID:fr07ap10-6]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2009-0553; FRL-8817-9]

Flutolanil; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: This regulation establishes tolerances for residues of
flutolanil in or on cotton and soybean. Nichino America, Inc. requested
these tolerances under the Federal Food, Drug, and Cosmetic Act
(FFDCA).

DATES: This regulation is effective April 7, 2010. Objections and
requests for hearings must be received on or before June 7, 2010, and
must be filed in accordance with the instructions provided in 40 CFR
part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2009-0553. All documents in the
docket are listed in the docket index available at http://
www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket Facility telephone number is (703)
305-5805.

FOR FURTHER INFORMATION CONTACT: Lisa Jones, Registration Division,
Office of Pesticide Programs, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703) 308-9424; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
Potentially affected entities may include, but are not limited to those
engaged in the following activities:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather to
provide a guide for readers regarding entities likely to be affected by
this action. Other types of entities not listed in this unit could also
be affected. The North American Industrial Classification System
(NAICS) codes have been provided to assist you and others in
determining whether this action might apply to certain entities. If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.

B. How Can I Get Electronic Access to Other Related Information?

    You may access a frequently updated electronic version of EPA's
tolerance regulations at 40 CFR part 180 through the Government
Printing Office's e-CFR cite at http://www.gpoaccess.gov/ecfr. To
access the OPPTS harmonized test guidelines referenced in this document
electronically, please go http://www.epa.gov/oppts and select ``Test
Methods and Guidelines.''

C. Can I File an Objection or Hearing Request?

    Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file
an objection to any aspect of this regulation and may also request a
hearing on those

objections. You must file your objection or request a hearing on this
regulation in accordance with the instructions provided in 40 CFR part
178. To ensure proper receipt by EPA, you must identify docket ID
number EPA-HQ-OPP-2009-0553 in the subject line on the first page of
your submission. All objections and requests for a hearing must be in
writing, and must be received by the Hearing Clerk on or before June 7,
2010. Addresses for mail and hand delivery of objections and hearing
requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing that does not contain any CBI for inclusion in the public
docket that is described in ADDRESSES. Information not marked
confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA
without prior notice. Submit this copy, identified by docket ID number
EPA-HQ-OPP-2009-0553, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is<PHONE_NUMBER>.

II. Petition for Tolerance

    In the Federal Register of September 4, 2009 (74 FR 45848) (FRL-
8434-4), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21
U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP
9F7542) by Nichino America, Inc., 4550 New Linden Hill Rd., Suite 501,
Wilmington, DE 19808. The petition requested that 40 CFR 180.484 be
amended by establishing tolerances for residues of the fungicide
flutolanil, (N-(3-(1-methylethoxy) phenyl) -2-(trifluoromethyl)
benzamide) and its metabolite, M-4, desisopropylflutolanil (N-(3-
hydroxyphenyl)-2-(trifluromethyl) benzamide), expressed as 2-
trifluoromethyl benzoic acid and calculated as flutolanil, in or on
cotton at 0.05 parts per million (ppm) and in or on soybean at 0.05
ppm. That notice referenced a summary of the petition prepared by
Nichino America, Inc., the registrant, which is available to the public
in the docket, http://www.regulations.gov. Comments were received on
the notice of filing. EPA's response to these comments is discussed in
Unit IV.C.
    EPA has modified the proposed tolerance expression to: ``residues
of flutolanil, (N-(3-(1-methylethoxy) phenyl)-2-(trifluoromethyl)
benzamide), including its metabolites and degradates, in or on the
commodities in the table below. Compliance with the tolerance levels
specified below is to be determined by measuring only flutolanil and
its metabolites converted to 2-(trifluoromethyl) benzamide and
calculated as flutolanil.'' Based on review of the data supporting the
petition, EPA has also modified the proposed tolerances to be
established under paragraph (a), General, for flutolanil at 40 CFR
180.484 as follows: Soybean, seed, 0.20 ppm; soybean, forage, 8.0 ppm;
soybean, hay, 2.5 ppm; cotton, undelinted seed, 0.20 ppm and cotton,
gin byproducts, 0.20 ppm. Additionally, the following tolerances will
be removed from paragraph (d), Indirect or inadvertent residues, for
flutolanil as redundant: Soybean, seed 0.20 ppm; soybean, forage, 8.0
ppm and soybean hay, 2.5 ppm. The reasons for these changes are
explained in Unit IV.D.

III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a
tolerance (the legal limit for a pesticide chemical residue in or on a
food) only if EPA determines that the tolerance is ``safe.'' Section
408(b)(2)(A)(ii) of FFDCA defines ``safe'' to mean that ``there is a
reasonable certainty that no harm will result from aggregate exposure
to the pesticide chemical residue, including all anticipated dietary
exposures and all other exposures for which there is reliable
information.'' This includes exposure through drinking water and in
residential settings, but does not include occupational exposure.
Section 408(b)(2)(C) of FFDCA requires EPA to give special
consideration to exposure of infants and children to the pesticide
chemical residue in establishing a tolerance and to ``ensure that there
is a reasonable certainty that no harm will result to infants and
children from aggregate exposure to the pesticide chemical residue. . .
. ''
    Consistent with section 408(b)(2)(D) of FFDCA, and the factors
specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the
available scientific data and other relevant information in support of
this action. EPA has sufficient data to assess the hazards of and to
make a determination on aggregate exposure for flutolanil including
exposure resulting from the tolerances established by this action.
EPA's assessment of exposures and risks associated with flutolanil
follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children.
    Specific information on the studies received and the nature of the
adverse effects caused by flutolanil as well as the no-observed-
adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-
level (LOAEL) from the toxicity studies are discussed in the final rule
published in the Federal Register of June 11, 2008, (73 FR 33013) (FRL-
8365-6). The complete toxicological profile for flutolanil can be found
at http://www.regulations.gov on pages 7 through 12 in the document
``Flutolanil, Human Health Risk Assessment: Requests for Inadvertent or
Indirect Tolerances for Use on Soybean, Wheat, Corn and Cotton'' in
docket ID number EPA-HQ-OPP-2007-1021.

B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA
identifies toxicological points of departure (POD) and levels of
concern to use in evaluating the risk posed by human exposure to the
pesticide. For hazards that have a threshold below which there is no
appreciable risk, the toxicological POD is used as the basis for
derivation of reference values for risk assessment. PODs are developed
based on a careful analysis of the doses in each toxicological study to
determine the dose at which no adverse effects are observed (the NOAEL)
and the lowest dose at which adverse effects of concern are identified
(the LOAEL). Uncertainty/safety factors are used in conjunction with
the POD to calculate a safe exposure level-generally referred to as a
population-adjusted dose (PAD) or a reference dose (RfD) and a safe
margin of exposure (MOE). For non-threshold

risks, the Agency assumes that any amount of exposure will lead to some
degree of risk. Thus, the Agency estimates risk in terms of the
probability of an occurrence of the adverse effect expected in a
lifetime. For more information on the general principles EPA uses in
risk characterization and a complete description of the risk assessment
process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.
    A summary of the toxicological endpoints for flutolanil used for
human risk assessment is discussed in Unit III, Aggregate Risk
Assessment and Determination of Safety, of the final rule published in
the Federal Register of June 11, 2008 (73 FR 33013) (FRL-8365-6).

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to flutolanil, EPA considered exposure under the petitioned-
for tolerances as well as all existing flutolanil tolerances in 40 CFR
180.484. EPA assessed dietary exposures from flutolanil in food as
follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk
assessments are performed for a food-use pesticide, if a toxicological
study has indicated the possibility of an effect of concern occurring
as a result of a 1-day or single exposure.
    No such effects were identified in the toxicological studies for
flutolanil; therefore, a quantitative acute dietary exposure assessment
is unnecessary.
    ii. Chronic exposure. In conducting the chronic dietary exposure
assessment EPA used the food consumption data from the U.S. Department
of Agriculture (USDA) 1994-1996 and 1998 Continuing Survey of Food
Intake by Individuals (CSFII). As to residue levels in food, the
chronic dietary analysis included tolerance level residues, 100 percent
crop treated estimates and processing factors (default).
    iii. Cancer. EPA determines whether quantitative cancer exposure
and risk assessments are appropriate for a food-use pesticide based on
the weight-of-the-evidence from cancer studies and other relevant data.
Cancer risk is quantified using a linear or nonlinear approach. If
sufficient information on the carcinogenic mode of action is available,
a threshold or non-linear approach is used and a cancer RfD is
calculated based on an earlier noncancer key event. If carcinogenic
mode of action data are not available, or if the mode of action data
determines a mutagenic mode of action, a default linear cancer slope
factor approach is utilized. Based on the lack of evidence of
carcinogenicity in two rodent studies and the lack of evidence of
mutagenicity, flutolanil is not expected to pose a cancer risk to
humans. Therefore, a dietary exposure assessment for the purpose of
assessing cancer risk is unnecessary.
    iv. Anticipated residue and percent crop treaded (PCT) information.
EPA did not use anticipated residue and/or PCT information in the
dietary assessment for flutolanil. Tolerance level residues and/or 100%
CT were assumed for all food commodities.
    2. Dietary exposure from drinking water. The Agency used screening
level water exposure models in the dietary exposure analysis and risk
assessment for flutolanil in drinking water. These simulation models
take into account data on the physical, chemical, and fate/transport
characteristics of flutolanil. Further information regarding EPA
drinking water models used in pesticide exposure assessment can be
found at http://www.epa.gov/oppefed1/models/water/index.htm.
    The Agency used the First Approximation Rice Model (FARM) to
estimate pesticide concentrations in surface water after applying
flutolanil on rice and Screening Concentrations in Ground Water (SCI-
GROW), which predicts pesticide concentrations in ground water. In
general, EPA will use Generic Expected Environmental Concentrations
(GENEEC) (a Tier 1 model) before using Pesticide Root Zone/Exposure
Analysis Modeling System (PRZM/EXAMS) (a Tier 2 model) for a screening-
level assessment for surface water, but given the unique hydrological
issues arising from pesticide application to rice paddies, EPA used the
FARM rather than GENEEC or PRZM/EXAMS for surface water estimates.
    Based on the SCI-GROW model, and the FARM (to estimate pesticide
concentrations in surface water after applying flutolanil on rice) the
estimated environmental concentrations (EECs) of flutolanil for acute
exposures are estimated to be 3.8 parts per billion (ppb) for surface
water and 0.34 ppb for ground water. The EEC for peak acute exposure is
estimated to be 11.6 ppb for surface water. The EECs for chronic
exposures are estimated to be 3.8 ppb for surface water and 0.34 ppb
for ground water.
    For chronic dietary risk assessment, the water concentration of
value 3.8 ppb was used to assess the contribution to drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., for lawn and garden pest control, indoor pest control,
termiticides, and flea and tick control on pets).
    Flutolanil is currently registered for the following uses that
could result in residential exposures: Turf grass and ornamental
plants. EPA assessed residential exposure using the following
assumptions: Although residential (non-occupational) exposure exists, a
quantitative exposure assessment was not conducted since no
toxicological endpoint attributable to acute, short-term or
intermediate-term exposure have been identified and the current use
pattern does not indicate chronic or long-term exposure (6 or more
months of continuous exposure) potential. Further information regarding
EPA standard assumptions and generic inputs for residential exposures
may be found at http://www.epa.gov/pesticides/trac/science/
trac6a05.pdf.
    4. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
    EPA has not found flutolanil to share a common mechanism of
toxicity with any other substances, and flutolanil does not appear to
produce a toxic metabolite produced by other substances. For the
purposes of this tolerance action, therefore, EPA has assumed that
flutolanil does not have a common mechanism of toxicity with other
substances. For information regarding EPA's efforts to determine which
chemicals have a common mechanism of toxicity and to evaluate the
cumulative effects of such chemicals, see EPA's website at http://
www.epa.gov/pesticides/cumulative.

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA
shall apply an additional tenfold (10X) margin of safety for infants
and children in the case of threshold effects to account for prenatal
and postnatal toxicity and the completeness of the database on toxicity
and exposure unless EPA determines based on reliable data that a
different margin of safety will be safe for infants and children. This
additional margin of safety is commonly referred to as the FQPA Safety
Factor (SF). In applying this provision, EPA either retains the default
value of 10X, or uses a different

additional safety factor when reliable data available to EPA support
the choice of a different factor.
    2. Prenatal and postnatal sensitivity. There was no evidence of
increased susceptibility of rat or rabbit fetuses to in utero exposure
or rat pups to post-natal exposure to flutolanil. Flutolanil is not a
developmental or reproductive toxicant. No maternal, reproductive, or
developmental toxicity was observed at the limit dose.
    3. Conclusion. EPA has determined that reliable data show the
safety of infants and children would be adequately protected if the
FQPA SF were reduced to 1X. That decision is based on the following
findings:
    i. The toxicity database for flutolanil is complete except for
acute and subchronic neurotoxicity and immunotoxicity studies. Recent
changes to 40 CFR part 158 make acute and subchronic neurotoxicity
testing (OPPTS Test Guideline 870.6200), and immunotoxicity testing
(OPPTS Test Guideline 870.7800) required for pesticide registration.
However, the available data for flutolanil do not suggest that the
compound produces hematological or thymus/spleen organ effects
indicative of immunotoxicity. Further, there is no evidence of
neurotoxicity in any study in the toxicity database for flutolanil.
Therefore, EPA does not believe that conducting neurotoxicity and
immunotoxicity studies will result in a NOAEL lower than the NOAEL of
50 milligrams/kilogram/day (mg/kg/day) already established for
flutolanil. Consequently, an additional database uncertainty factor
does not need to be applied.
    ii. There is no indication that flutolanil is a neurotoxic chemical
and there is no need for a developmental neurotoxicity study or
additional UFs to account for neurotoxicity.
    iii. There is no evidence that flutolanil results in increased
susceptibility in in utero rats or rabbits in the prenatal
developmental studies or in young rats in the 2-generation reproduction
study.
    iv. There are no residual uncertainties identified in the exposure
databases. The dietary food exposure assessments were performed based
on 100% CT and tolerance-level residues. EPA made conservative
(protective) assumptions in the ground water and surface water modeling
used to assess exposure to flutolanil in drinking water. Residential
exposure does not pose a concern for flutolanil because (1) chronic
residential exposure is not expected; and (2) although short-term or
intermediate-term residential exposure may occur, no relevant adverse
effects were identified for dermal or incidental oral or inhalation
exposure related to residential use. These assessments will not
underestimate the exposure and risks posed by flutolanil.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide
exposures are safe by comparing aggregate exposure estimates to the
acute population adjusted dose (aPAD) and chronic population adjusted
dose (cPAD). For linear cancer risks, EPA calculates the lifetime
probability of acquiring cancer given the estimated aggregate exposure.
Short-term, intermediate-term, and chronic-term risks are evaluated by
comparing the estimated aggregate food, water, and residential exposure
to the appropriate PODs to ensure that an adequate MOE exists.
    1. Acute Risk. An acute aggregate risk assessment takes into
account acute exposure estimates from dietary consumption of food and
drinking water. No adverse effect resulting from a single oral exposure
was identified and no acute dietary endpoint was selected. Therefore,
flutolanil is not expected to pose an acute risk.
    2. Chronic risk. Using the exposure assumptions described in this
unit for chronic exposure, EPA has concluded that chronic exposure to
flutolanil from food and water will utilize 2% of the cPAD for children
between 1 to 2 years old, the population group receiving the greatest
exposure. Based on the explanation in Unit III.C.3., regarding
residential use patterns, chronic residential exposure to residues of
flutolanil is not expected.
    3. Short-term and intermediate-term risk. Short-term and
intermediate-term aggregate exposure take into account short-term and
intermediate-term residential exposure plus chronic exposure to food
and water (considered to be a background exposure level).
    Because no short- or intermediate-term adverse effect was
identified, flutolanil is not expected to pose a short-term or
intermediate-term risk.
    4. Aggregate cancer risk for U.S. population. EPA has classified
flutolanil as ``not likely'' to be a human carcinogen.
    5. Determination of safety. Based on these risk assessments, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population, or to infants and children from aggregate
exposure to flutolanil residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    An adequate enforcement methodology, (Method AU/95R/04), a common
moiety Gas Chromatography/Mass Spectrometry (GC/MS) method which
determines residues of flutolanil and metabolites as 2-trifluoromethyl
benzoic acid (2-TFBA) is available to enforce the tolerance expression.
    The method may be requested from: Chief, Analytical Chemistry
Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD
20755-5350; telephone number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
B. International Residue Limits

    Codex maximum residue limits (MRLs) are established for residues of
flutolanil in rice commodities at 1-10 ppm, and in livestock
commodities at 0.05-0.2 ppm. No Canadian or Mexican MRLs have been
established. No Codex MRLs are established for soybean, cotton seed, or
sugar beet commodities.

C. Response to Comments

    One comment was received from a private citizen objecting to the
establishment of tolerances for flutolanil. The commenter criticized
EPA's reliance on toxicology testing on animals. The Agency has
received, and responded to, similar comments from this commenter on
numerous previous occasions. Refer to the Federal Register issues of
June 30, 2005 (70 FR 37686), January 7, 2005 (70 FR 1354), October 28,
2004 (FR 69 63096) for the Agency's response to these objections.

D. Revisions to Petitioned-For Tolerances

    The Agency is establishing tolerances that are greater than the
proposed tolerance for soybean seed and cotton seed because the
enforcement analytical method has not been validated at a level below
0.20 ppm, and the greater tolerance value is needed to accommodate
indirect residues from soybean rotational crops. Additional tolerances
are established for cotton gin byproducts, as the radiolabeled seed
treatment study revealed residues on cotton gin trash, and soybean hay
to accommodate the seed treatment use and the inadvertent residue from
soybean as a rotational crop.
    EPA is revising the tolerance expression in Sec. 180.484 to clarify
that, as provided in FFDCA section 408(a)(3), the tolerance covers
metabolites and degradates of flutolanil not specifically mentioned;
and that compliance with the specified tolerance levels is to be
determined by measuring only the

specific compounds mentioned in the tolerance expression. The tolerance
definition previously read ``residues of the fungicide flutolanil, N-
(3-(1-methylethoxy)phenyl)-2-(trifluoromethyl)benzamide, and its
metabolites converted to 2-(trifluoromethyl) benzoic acid and
calculated as flutolanil.'' It is being changed to ``residues of
flutolanil, N-(3-(1-methylethoxy)phenyl)-2-(trifluoromethyl)benzamide,
including its metabolites and degradates, in or on the commodities.
Compliance with the tolerance levels is to be determined by measuring
only flutolanil and its metabolites converted to 2-(trifluoromethyl)
benzoic acid and calculated as flutolanil.''
    Finally, the inadvertent residue, rotational crop tolerances
previously established for soybean forage and soybean hay encompass the
use on soybean as a seed treatment. Therefore the tolerances
established under paragraph (d), Indirect or inadvertent residues, for
soybean, seed at 0.20 ppm; soybean, forage at 8.0 ppm, and soybean hay
at 2.5 ppm are being revoked since the same tolerance values are being
established under paragraph (a), General.

V. Conclusion

    Therefore, tolerances are established for residues of flutolanil,
N-(3-(1-methylethoxy)phenyl)-2-(trifluoromethyl)benzamide, including
its metabolites and degradates, in or on cotton, undelinted seed at
0.20 ppm; soybean, seed at 0.20 ppm; soybean, forage at 8.0 ppm;
soybean, hay at 2.5 ppm; cotton, gin byproducts at 0.20 ppm. Compliance
with the tolerance levels is to be determined by measuring only
flutolanil and its metabolites converted to 2-(trifluoromethyl) benzoic
acid and calculated as flutolanil.

VI. Statutory and Executive Order Reviews

    This final rule establishes tolerances under section 408(d) of
FFDCA in response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these types of actions from
review under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Because this final rule has been
exempted from review under Executive Order 12866, this final rule is
not subject to Executive Order 13211, entitled Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997). This final rule does not contain any
information collections subject to OMB approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any
special considerations under Executive Order 12898, entitled Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under section 408(d) of FFDCA, such as the tolerance in
this final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) do not apply.
    This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined that Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999) and Executive Order 13175, entitled
Consultation and Coordination with Indian Tribal Governments (65 FR
67249, November 9, 2000) do not apply to this final rule. In addition,
this final rule does not impose any enforceable duty or contain any
unfunded mandate as described under Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Public Law 104-4).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note).

VII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of this final rule in the Federal
Register. This final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: March 26, 2010.
Lois Rossi,
Director, Registration Division, Office of Pesticide Prorgams.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.484 is amended as follows:
    a. Revise the section heading.
    b. Revise the introductory text of paragraph (a).
    c. Add alphabetically entries to the table in paragraph (a) for
cotton, gin byproducts; cotton, undelinted seed; soybean forage;
soybean, hay; and soybean, seed.
    d. Revise paragraph (d).

Sec.  180.484   Flutolanil; tolerances for residues.

    (a) General. Tolerances are established for residues of flutolanil,
N-(3-(1-methylethoxy) phenyl)-2-(trifluoromethyl)benzamide, including
its metabolites and degradates, in or on the commodities in the table
below. Compliance with the tolerance levels specified below is to be
determined by measuring only flutolanil and its metabolites converted
to 2-(trifluoromethyl) benzoic acid and calculated as flutolanil, in or
on the following commodities:

------------------------------------------------------------------------
                      Commodity                        Parts per million
------------------------------------------------------------------------
                                * * * * *
Cotton, gin byproducts...............................               0.20
Cotton, undelinted seed..............................               0.20
                                * * * * *
Soybean, forage......................................                8.0
Soybean, hay.........................................                2.5
Soybean, seed........................................               0.20
------------------------------------------------------------------------

* * * * *
    (d) Indirect or inadvertent residues. Tolerances are established
for the indirect or inadvertent residues of

flutolanil, N-(3-(1-methylethoxy)phenyl)-2-(trifluoromethyl)benzamide,
including its metabolites and degradates, in or on the commodities in
the table below. Compliance with the tolerance levels specified below
is to be determined by measuring only flutolanil and its metabolites
converted to 2-(trifluoromethyl) benzoic acid and calculated as
flutolanil, in or on the following commodities.

------------------------------------------------------------------------
                      Commodity                        Parts per million
------------------------------------------------------------------------
Wheat, bran..........................................               0.20
Wheat, forage........................................                2.5
Wheat, grain.........................................               0.05
Wheat, hay...........................................                1.2
Wheat, straw.........................................               0.20
------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-7624 Filed 4-6-10; 8:45 am]
BILLING CODE 6560-50-S


[Federal Register Volume 78, Number 126 (Monday, July 1, 2013)]
[Notices]
[Pages 39279-39280]
[FR Doc No: 2013-15665]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. NJ13-10-000]

United States Department of Energy; Bonneville Power
Administration; Notice of Petition for Declaratory Order

    Take notice that on June 19, 2013, pursuant to sections 35.28(e)
and 385.207 of the Federal Energy Regulatory Commission's (Commission)
Rules of Practice and Procedure, 18 CFR 35.28(e) and 18 CFR 385.207,
the Bonneville Power Administration (Bonneville), submitted certain
amendments to its Open Access Transmission Tariff (OATT) and a Petition
for Declaratory Order requesting the Commission find that Bonneville's
OATT, as amended by this filing, substantially conform or is superior
to the pro forma OATT as it

has been amended by Order Nos. 1000, 1000-A, and 1000-B.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern Time on August 5, 2013.

    Dated: June 24, 2013.
Kimberly D. Bose,
Secretary.
[FR Doc. 2013-15665 Filed 6-28-13; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 76, Number 20 (Monday, January 31, 2011)]
[Rules and Regulations]
[Pages 5277-5280]
[FR Doc No: 2011-1926]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0860; FRL-9249-5]

Revisions to the California State Implementation Plan, Santa
Barbara Air Pollution Control District, Antelope Valley Air Quality
Management District, Ventura County Air Pollution Control District and
Placer County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking direct final action to approve revisions to the
Santa Barbara Air Pollution Control District (SBAPCD), Antelope Valley
Air Quality Management District (AVAQMD), Ventura County Air Pollution
Control District (VCAPCD) and Placer County Air Pollution Control
District (PCAPCD) portion of the California State Implementation Plan
(SIP). These revisions concern volatile organic compound (VOC)
emissions from gasoline bulk plants, terminals and vehicle dispensing
facilities. We are approving local rules that regulate these emission
sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on April 1, 2011 without further notice,
unless EPA receives adverse comments by March 2, 2011. If we receive
such comments, we will publish a timely withdrawal in the

Federal Register to notify the public that this direct final rule will
not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0860, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
    2. E-mail<EMAIL_ADDRESS>    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
    Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an
``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.
    Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: David Grounds, EPA Region IX, (415)
972-3019<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to EPA.

Table of Contents

    I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. EPA recommendations To Further Improve the Rules
    D. Public Comment and Final Action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules we are approving with the dates that they
were adopted by the local air agencies and submitted by the California
Air Resources Board.

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
             Local agency                Rule No.            Rule title               Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
SBAPCD................................        316  Storage and Transfer of              01/15/09        03/17/09
                                                    Gasoline.
AVAQMD................................        461  Gasoline Transfer and                10/21/08        04/06/09
                                                    Dispensing.
VCAPCD................................         70  Storage and Transfer of              03/10/09        09/15/09
PCAPCD................................        215   Gasoline.                           06/19/97        07/18/08
                                                   Transfer of Gasoline Into
                                                    Tank Trucks, Trailers, and
                                                    Railroad Tank Cars at
                                                    Loading Facilities.
----------------------------------------------------------------------------------------------------------------

    On August 22, 2008, EPA determined that the submittal for PCAPCD
Rule 215 met the completeness criteria in 40 CFR Part 51 Appendix V,
which must be met before formal EPA review. On April 20, 2009, EPA
determined that the submittal for SBAPCD Rule 316 met the completeness
criteria. On May 13, 2009, EPA determined that the submittal for AVAQMD
Rule 461 met the completeness criteria. On January 21, 2010, EPA
determined that the submittal for VCAPCD Rule 70 met the completeness
criteria.

B. Are there other versions of these rules?

    We approved an earlier version of SBAPCD Rule 316 into the SIP on
11/26/99 (64 FR 66393). We approved an earlier version of AVAQMD Rule
461 into the SIP on 10/07/96 (61 FR 52297). We approved an earlier
version of VCAPCD Rule 70 into the SIP on 05/24/04 (69 FR 29451). We
approved an earlier version of PCAPCD Rule 215 into the SIP on 05/06/96
(61 FR 20145).

C. What is the purpose of the submitted rule revisions?

    VOCs help produce ground-level ozone and smog, which harm human
health and the environment. Section 110(a) of the CAA requires States
to submit regulations that control VOC emissions.
    VCAPCD Rule 70 and SBAPCD Rule 316 impose more stringent
requirements on VOC emissions from gasoline bulk plants, terminals, and
vehicle dispensing facilities, while AVAQMD Rule 461 and PCAPCD Rule
215 impose more stringent requirements on the transfer of gasoline to
and from any tank truck, trailer or railroad tank car. EPA's technical
support documents (TSD) have more information about these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the
Act), must require Reasonably Available Control Technology (RACT) for
each category of sources covered by a Control Techniques Guidelines
(CTG) document as well as each major source in nonattainment areas (see
sections 182(a)(2) and (b)(2)), and must not relax existing
requirements (see sections 110(l) and 193). The VCAPCD, AVAQMD and
PCAPCD regulate ozone nonattainment areas (see 40 CFR part 81), so
Rules 70, 461 and 215 must fulfill RACT. SBAPCD regulates an ozone
attainment area and is not required to fulfill RACT.
    Guidance and policy documents that we use to evaluate
enforceability and RACT requirements consistently include the
following:
    1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

    3. ``Technical Guidance--Stage II Vapor Recovery Systems for
Control of Vehicle Refueling Emissions at Gasoline Dispensing
Facilities,'' (EPA-450/3-91-022).
    4. ``Control of Volatile Organic Emissions From Bulk Gasoline
Plants,'' (EPA-450/2-77-035).
    5. ``Control of Volatile Organic Emissions From Storage of
Petroleum Liquids in Fixed-Roof Tanks,'' (EPA-450/2-77-036).
    6. ``Control of Volatile Organic Emissions from Petroleum Liquid
Storage in External Floating Roof Tanks,'' (EPA-450/2-78-047).
    7. ``Stationary Sources. Liquid Storage, Bulk Terminals and Plants,
GDF Storage Tanks, Vehicle Refueling,'' (EPA-453/R-92-018(ACT)).
    8. ``Gasoline Dispensing Facilities--Stage II Vapor Recovery,''
EPA's Draft Model Rule, August 17, 1992.
    9. ``Gasoline Vapor Recovery Guidelines,'' EPA Region IX, April 24,
2000.

B. Do the rules meet the evaluation criteria?

    We believe these rules are consistent with the relevant policy and
guidance regarding enforceability, RACT, and SIP relaxations. The TSDs
have more information on our evaluations.

C. EPA Recommendations To Further Improve the Rules

    The TSDs describe additional rule revisions that we recommend for
the next time the local agencies modify the rules.

D. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully
approving the submitted rules because we believe they fulfill all
relevant requirements. We do not think anyone will object to this
approval, so we are finalizing it without proposing it in advance.
However, in the Proposed Rules section of this Federal Register, we are
simultaneously proposing approval of the same submitted rules. If we
receive adverse comments by March 2, 2011, we will publish a timely
withdrawal in the Federal Register to notify the public that the direct
final approval will not take effect and we will address the comments in
a subsequent final action based on the proposal. If we do not receive
timely adverse comments, the direct final approval will be effective
without further notice on April 1, 2011. This will incorporate these
rules into the Federally enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not interfere with Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) because EPA lacks the discretionary authority to
address environmental justice in this rulemaking.
In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 1, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the Proposed
Rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: December 21, 2010.
Keith Takata,
Acting Regional Administrator, Region IX.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(359)(i)(C)(3),
(363)(i)(B)(2), (366)(i)(C) and (377)(i)(C) to read as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (359) * * *
    (i) * * *
    (C) * * *
    (3) Rule 215, ``Transfer of Gasoline Into Trucks, Trailers, and
Railroad Tank Cars at Loading Facilities,'' adopted on June 19, 1997.
* * * * *
    (363) * * *
    (i) * * *
    (B) * * *
    (2) Rule 316, ``Storage and Transfer of Gasoline,'' adopted on
January 15, 2009.
* * * * *
    (366) * * *
    (i) * * *
    (C) Antelope Valley Air Quality Management District.
    (1) Rule 461, ``Gasoline Transfer and Dispensing,'' adopted on
October 21, 2008.
* * * * *
    (377) * * *
    (i) * * *
    (C) Ventura County Air Pollution Control District.
    (1) Rule 70, ``Storage and Transfer of Gasoline,'' adopted on March
    10, 2009.
* * * * *
[FR Doc. 2011-1926 Filed 1-28-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Notices]
[Pages 77761-77765]
[FR Doc No: 2013-30631]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71133; File No. SR-NYSEArca-2013-111]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving a
Proposed Rule Change To List and Trade Shares of Manna Core Equity
Enhanced Dividend Income Fund Under NYSE Arca Equities Rule 8.600

December 18, 2013.

I. Introduction

    On October 23, 2013, NYSE Arca, Inc. (``Exchange'' or ``NYSE
Arca'') filed

with the Securities and Exchange Commission (``Commission''), pursuant
to Section 19(b)(1) \1\ of the Securities Exchange Act of 1934
(``Exchange Act'') \2\ and Rule 19b-4 thereunder,\3\ a proposed rule
change to list and trade shares (``Shares'') of the Manna Core Equity
Enhanced Dividend Income Fund (``Fund''). The proposed rule change was
published for comment in the Federal Register on November 7, 2013.\4\
The Commission received no comments on the proposal. This order
approves the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ See Securities Exchange Act Release No. 70798 (November 1,
2013), 78 FR 66973 (``Notice'').
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares under NYSE Arca
Equities Rule 8.600, which governs the listing and trading of Managed
Fund Shares on the Exchange. The Exchange makes the following
representations and statements in describing the Fund and its
investment strategies, including portfolio holdings and limitations.
The Shares will be offered by ETF Actively Managed Trust (``Trust'').
The Trust will be registered with the Commission as an open-end
management investment company.\5\ ETF Issuer Solutions, Inc. will serve
as the investment adviser to the Fund (``Adviser''). ETF Distributors
LLC will be the principal distributor of the Fund's Shares. Manna ETFs
Management LLC (the ``Sub-Adviser'') will serve as sub-adviser for the
Fund. The Bank of New York Mellon will serve as the administrator,
accountant, custodian, and transfer agent for the Fund. The Exchange
represents that the Adviser and Sub-Adviser are each not registered as
a broker-dealer, but the Adviser is affiliated with a broker-dealer and
has implemented a fire wall with respect to its broker-dealer affiliate
regarding access to information concerning the composition of and
changes to the Fund's portfolio.\6\
---------------------------------------------------------------------------

    \5\ The Trust is registered under the 1940 Act. On April 2,
2013, the Trust filed a registration statement on Form N-1A under
the Securities Act of 1933 (the ``1933 Act'') (15 U.S.C. 77a), and
under the 1940 Act relating to the Fund (File Nos. 333-187668 and
811-22819) (the ``Registration Statement''). The Trust filed an
Amended and Restated Application for an Order under Section 6(c) of
the 1940 Act for exemptions from various provisions of the 1940 Act
and rules thereunder (File No. 812-14080), dated June 19, 2013
(``Exemptive Application''). The Commission has issued an order
granting certain exemptive relief to the Trust under the 1940 Act.
See Investment Company Act Release No. 30607 (July 23, 2013)
(``Exemptive Order''). Investments made by the Fund will comply with
the conditions set forth in the Exemptive Application and the
Exemptive Order.
    \6\ See Commentary .06 to NYSE Arca Equities Rule 8.600. The
Exchange represents that in the event (a) the Adviser or any Sub-
Adviser registers as a broker-dealer or becomes newly affiliated
with a broker-dealer, or (b) any new adviser or sub-adviser is a
registered broker-dealer or becomes affiliated with a broker-dealer,
it will implement a fire wall with respect to its relevant personnel
or its broker-dealer affiliate regarding access to information
concerning the composition of or changes to the Fund's portfolio,
and will be subject to procedures designed to prevent the misuse of
material, non-public information regarding the Fund's portfolio.
---------------------------------------------------------------------------

    The Fund will seek long-term capital appreciation and income
primarily through purchases and short sales of U.S. and international
equity securities. To achieve its investment objective, normally \7\
the Fund will invest up to 100% (but not less than 80%) of its net
assets between its Core Position, Dividend Position and Short Position
(each as defined below). The Fund expects to invest in a portfolio of
U.S. common stocks or exchange traded funds (``ETFs'') selected by the
Sub-Adviser to reflect a broad spectrum (i.e., positions in companies
of different market capitalizations) of the U.S. equity market (the
``Core Position''). The Fund also expects to invest in a portfolio that
may contain U.S. and non-U.S. common stocks, American Depositary
Receipts (``ADRs''), participation notes, or other equity securities
listed on U.S. or non-U.S. exchanges or traded over the counter that
the Sub-Adviser expects to generate dividend income to the Fund (the
``Dividend Position''). The Fund also expects to sell short a portfolio
of common stocks, index- or sector-based ETFs, other investment
companies, exchange traded notes (``ETNs'') and other exchange traded
products (``ETPs''),\8\ other securities or index- or sector-based
futures contracts all of which trade on U.S. and non-U.S. exchanges
selected for the purpose of hedging against country or currency risk
associated with the investments in the Dividend Position, or because
they are likely to underperform the market or lose value in the near
term (the ``Short Position'').
---------------------------------------------------------------------------

    \7\ The term ``normally'' includes, but is not limited to, the
absence of extreme volatility or trading halts in the equity markets
or the financial markets generally; operational issues causing
dissemination of inaccurate market information; or force majeure
type events such as systems failure, natural or man-made disaster,
act of God, armed conflict, act of terrorism, riot or labor
disruption or any similar intervening circumstance. According to the
Registration Statement, in certain adverse market, economic,
political, or other conditions, the Fund may temporarily depart from
its normal investment policies and strategies provided that the
alternative is consistent with the Fund's investment objective and
is in the best interest of the Fund. The Fund may determine that
market conditions warrant investing in cash or cash equivalents,
such as money market instruments, and to the extent permitted by
applicable law and the Fund's investment restrictions, shares of
other investment companies. Under such circumstances, the Fund may
invest up to 100% of its assets in these investments.
    \8\ For purposes of this proposed rule change, ETPs include
Investment Company Units (as described in NYSE Arca Equities Rule
5.2(j)(3)); Index-Linked Securities (as described in NYSE Arca
Equities Rule 5.2(j)(6)); Portfolio Depositary Receipts (as
described in NYSE Arca Equities Rule 8.100); Trust Issued Receipts
(as described in NYSE Arca Equities Rule 8.200); Commodity-Based
Trust Shares (as described in NYSE Arca Equities Rule 8.201);
Currency Trust Shares (as described in NYSE Arca Equities Rule
8.202); Commodity Index Trust Shares (as described in NYSE Arca
Equities Rule 8.203); Trust Units (as described in NYSE Arca
Equities Rule 8.500); Managed Fund Shares (as described in NYSE Arca
Equities Rule 8.600). The ETPs all will be listed and traded in the
U.S. on registered exchanges. While the Funds may invest in inverse
ETPs, the Funds will not invest in leveraged or inverse leveraged
ETPs (e.g., 2X or 3X).
---------------------------------------------------------------------------

    The Fund will be an actively managed ETF and thus does not seek to
replicate the performance of a specific index. Instead, the Fund will
use an active investment strategy to meet its investment objective. The
Sub-Adviser, subject to the oversight of the Adviser and the Board of
Trustees of the Trust, will have discretion on a daily basis to manage
the Fund's portfolio in accordance with the Fund's investment objective
and investment policies.
    The Sub-Adviser will typically seek to invest the Core Position in
a portfolio of common stocks and ETPs selected by the Sub-Adviser to
reflect a broad spectrum (i.e., positions in companies of different
market capitalizations) of the U.S. equity market. The Core Position
may invest in the common stock of issuers of any market capitalization
and there are no requirements as to the number of securities the Core
Position must hold.
    The Fund may invest in any type of ETF, including index based ETFs,
sector based ETFs, and fixed-income ETFs. The Fund may hold ETFs with
portfolios comprised of domestic or foreign stocks or bonds or any
combination thereof. However, due to legal limitations, the Fund will
be prevented from purchasing more than 3% of an ETF's outstanding
shares unless: (i) the ETF or the Fund has received an order for
exemptive relief from the 3% limitation from the Commission that is
applicable to the Fund; and (ii) the ETF and the Fund take appropriate
steps to comply with any conditions in such order.
    According to the Exchange, to implement the Dividend Position's
strategy, the Sub-Adviser will seek to maximize the level of dividend
income that the Dividend Position receives,

through the purchase of U.S. and non-U.S. securities that the Sub-
Adviser expects to generate dividend income for the Dividend Position.
To participate in non-U.S. developed or emerging markets, the Dividend
Position may invest in debt or equity securities, ADRs, participation
notes, and other securities listed on U.S. or non-U.S. exchanges or
U.S. securities traded over the counter. The Fund will invest only in
foreign securities and ADRs that are traded on an exchange that is a
member of the Intermarket Surveillance Group (``ISG'') or with which
the Exchange has in place a comprehensive surveillance sharing
agreement.
    The Sub-Adviser expects to seek to participate in special dividend
situations and engage in dividend capture trading. Special dividend
situations may include those where issuers decide to return large cash
balances to shareholders as one-time dividend payments.
    The Fund expects to establish Short Positions, representing up to
30% of the Fund's principal investments, in securities selected by the
Sub-Adviser for the purpose of hedging against country, currency,
sector or other risk associated with the investments in the Dividend
Position, in an attempt to establish, between the Dividend Position and
the Short Positions, a market neutral position with respect to the
countries and currency in which the Dividend Position is invested. The
Fund may also invest in Short Positions in securities that the Sub-
Adviser believes are likely to underperform the market or lose value in
the near term. To implement the Short Positions, the Sub-Adviser
expects to typically sell short a portfolio of equities, index- or
sector-based ETF's, other investment companies, index- or sector-based
futures contracts or other securities that trade on U.S. and non-U.S.
exchanges.\9\ According to the Registration Statement, the proceeds
from the Short Positions (i.e., cash received from selling securities
short) will typically be used to fund the acquisition of the Fund's
investments in the Dividend Position.
---------------------------------------------------------------------------

    \9\ To participate in non-U.S. developed or emerging markets,
the Fund may invest in ETFs, ADRs, futures contracts and other
securities listed on U.S. or non-U.S. exchanges or traded over the
counter that are intended to track the non-U.S. equity markets or
market sectors in which the Sub-Adviser seeks exposure.
---------------------------------------------------------------------------

    Although the Fund expects to invest not less than 80% of its assets
as described above, the Fund has flexibility to invest in other types
of securities when the Sub-Adviser believes they offer more attractive
opportunities or to meet liquidity, redemption, and short term
investing needs. The Fund may invest up to 20% of its assets in
securities convertible into common stock. Convertible securities
eligible for purchase by the Fund include convertible bonds,
convertible preferred stocks, and warrants. The Fund will not invest
directly in real estate, but may invest in readily marketable
securities issued by companies that invest in real estate or interests
therein. The Fund may also invest in readily marketable interests in
real estate investment trusts.

Investment Limitations

    The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
including Rule 144A securities deemed to be illiquid by the Sub-
Adviser. The Fund will monitor its portfolio liquidity on an ongoing
basis to determine whether, in light of current circumstances, an
adequate level of liquidity is being maintained, and will consider
taking appropriate steps in order to maintain adequate liquidity if,
through a change in values, net assets, or other circumstances, more
than 15% of the Fund's net assets are held in illiquid assets. Illiquid
assets include assets subject to contractual or other restrictions on
resale and other instruments that lack readily available markets as
determined in accordance with Commission staff guidance.
    The Fund may lend portfolio securities in an amount equal to up to
33% of its total assets to broker-dealers, major banks, or other
recognized domestic institutional borrowers of securities that the Sub-
Adviser has determined are creditworthy under guidelines established by
the Board of Trustees. The Fund may not lend securities to any company
affiliated with the Sub-Adviser. Each loan of securities will be
collateralized by cash, securities, or letters of credit.
    The Fund will not purchase the securities of issuers conducting
their principal business activity in the same industry if, immediately
after the purchase and as a result thereof, the value of the Fund's
investments in that industry would equal or exceed 25% of the current
value of the Fund's total assets, provided that this restriction does
not limit the Fund's: (i) Investments in securities of other investment
companies, (ii) investments in securities issued or guaranteed by the
U.S. government, its agencies or instrumentalities, or (iii)
investments in repurchase agreements collateralized by U.S. government
securities.
    The Fund will not invest in swaps, and no more than 10% of the net
assets of the Fund will be invested in unsponsored ADRs. Additional
information regarding the Fund; the Shares; the Fund's investment
objective, strategies, methodology, and restrictions; the Adviser; the
distributor; the administrator; the custodian; the transfer agent;
risks; fees and expenses; creations and redemptions of Shares;
availability of information; trading rules and halts; and surveillance
procedures, among other things, can be found in the Notice and
Registration Statement, as applicable.\10\
---------------------------------------------------------------------------

    \10\ See supra notes 4 and 5 respectively.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    After careful review, the Commission finds that the Exchange's
proposal to list and trade the Shares is consistent with the Exchange
Act and the rules and regulations thereunder applicable to a national
securities exchange.\11\ In particular, the Commission finds that the
proposed rule change is consistent with Section 6(b)(5) of the Exchange
Act,\12\ which requires, among other things, that the Exchange's rules
be designed to prevent fraudulent and manipulative acts and practices,
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 Commission notes that the Fund and the Shares must
comply with the requirements of NYSE Arca Equities Rule 8.600 to be
listed and traded on the Exchange.
---------------------------------------------------------------------------

    \11\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition and
capital formation. See 15 U.S.C. 78c(f).
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission finds that the proposal to list and trade the Shares
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the
Exchange Act,\13\ which sets forth Congress' finding that it is in the
public interest and appropriate for the protection of investors and the
maintenance of fair and orderly markets to assure the availability to
brokers, dealers, and investors of information with respect to
quotations for and transactions in securities. Quotation and last-sale
information for the Shares and any underlying ETPs, sponsored ADRs, and
common stock will be available via the Consolidated Tape Association
high-speed line, and price information for futures and non-exchange
traded securities held by the Fund will be available from publicly-
available pricing

sources, including Bloomberg, IDC, and Reuters. The Exchange will
disseminate the Indicative Optimized Portfolio Value (``IOPV''), which
is the Portfolio Indicative Value as defined in NYSE Arca Equities Rule
8.600(c)(3), at least every 15 seconds during the Core Trading Session
through one or more major market data vendors.\14\ The net asset value
(``NAV'') of the Fund will be determined as of the close of the regular
trading session on the Exchange (ordinarily 4:00 p.m., Eastern time) on
each day that the Exchange is open. The Fund's Web site will include a
form of the prospectus for the Fund and additional quantitative
information updated on a daily basis, including, (1) the prior business
day's reported closing price, NAV, and mid-point of the bid/ask spread
at the time of calculation of such NAV (``Bid/Ask Price''),\15\ and a
calculation of the premium and discount of the Bid/Ask Price against
the NAV, and (2) data in chart format displaying the frequency
distribution of discounts and premiums of the daily Bid/Ask Price
against the NAV, within appropriate ranges, for each of the four
previous calendar quarters.\16\ Information regarding market price and
trading volume of the Shares will be continually available on a real-
time basis throughout the day on brokers' computer screens and other
electronic services.\17\ NYSE Arca expects that information regarding
the previous day's closing price and trading volume information for the
Shares will be published daily in the financial section of
newspapers.\18\
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \14\ See Notice, supra note 4, 78 FR at 66977. The IOPV
calculations will be estimates of the value of the Fund's NAV per
Share using market data converted into U.S. dollars at the current
currency rates. The IOPV price will be based on quotes and closing
prices from the securities' local market and may not reflect events
that occur subsequent to the local market's close. The quotations of
certain Fund holdings may not be updated during U.S. trading hours
if such holdings do not trade in the United States. See id.
    \15\ The Bid/Ask Price of the Fund will be determined using the
mid-point of the highest bid and the lowest offer on the Exchange as
of the time of calculation of the Fund's NAV. The records relating
to Bid/Ask Prices will be retained by the Fund and its service
providers. See id.
    \16\ See id.
    \17\ See id.
    \18\ See id.
---------------------------------------------------------------------------

    Further, the Commission believes that the proposal to list and
trade the Shares is reasonably designed to promote fair disclosure of
information that may be necessary to price the Shares appropriately and
to prevent trading when a reasonable degree of transparency cannot be
assured. The Fund will make available on its Web site on each business
day before commencement of the Core Trading Session the Disclosed
Portfolio, as defined in NYSE Arca Equities Rule 8.600(c)(2), that will
form the basis for the Fund's calculation of NAV at the end of the
business day.\19\ The Commission notes that the Exchange will obtain a
representation from the Fund that the NAV per Share will be calculated
daily and that the NAV and the Disclosed Portfolio will be made
available to all market participants at the same time.\20\ In addition,
a basket composition file, which will include the security names and
share quantities required to be delivered in exchange for the Fund's
Shares, together with estimates and actual cash components, will be
publicly disseminated daily prior to the opening of the New York Stock
Exchange via the National Securities Clearing Corporation.\21\ The
basket will represent one Creation Unit of Shares of the Fund. The
Exchange will halt trading in the Shares under the specific
circumstances set forth in NYSE Arca Equities Rule 8.600(d)(2)(D), and
may halt trading in the Shares if trading is not occurring in the
securities or financial instruments constituting the Disclosed
Portfolio of the Fund, or if other unusual conditions or circumstances
detrimental to the maintenance of a fair and orderly market are
present.\22\ Further, if the IOPV is not being disseminated as
required, the Exchange may halt trading during the day in which the
interruption occurs; if the interruption persists past the day in which
it occurred, the Exchange will halt trading no later than the beginning
of the trading day following the interruption.\23\ The Exchange will
consider the suspension of trading in or removal from listing of the
Shares if the IOPV is no longer calculated or available or the
Disclosed Portfolio is not made available to all market participants at
the same time.\24\ Further, the Commission notes that the Reporting
Authority that provides the Disclosed Portfolio must implement and
maintain, or be subject to, procedures designed to prevent the use and
dissemination of material non-public information regarding the actual
components of the portfolio.\25\ The Exchange represents that the
Adviser is affiliated with a broker-dealer and has implemented a fire
wall with respect to such broker-dealer regarding access to information
concerning the composition and/or changes to the portfolio, and will be
subject to procedures designed to prevent the use and dissemination of
material non-public information regarding the portfolio.\26\ The
Exchange has a general policy prohibiting the distribution of material,
non-public information by its employees. Finally, the Exchange states
that, on its behalf, the Financial Industry Regulatory Authority
(``FINRA'') will communicate as needed with other markets that are
members of the ISG regarding trading in the Shares and exchange-traded
securities held by the Fund.\27\
---------------------------------------------------------------------------

    \19\ See id. On a daily basis, the Adviser will disclose for
each portfolio security or other financial instrument of the Fund
the following information on the Fund's Web site: ticker symbol (if
applicable), name of security and financial instrument, number of
shares or dollar value of financial instruments held in the
portfolio, and percentage weighting of the security and financial
instrument in the portfolio. The Web site information will be
publicly available at no charge. Under accounting procedures to be
followed by the Fund, trades made on the prior business day (``T'')
will be booked and reflected in NAV on the current business day
(``T+1''). Accordingly, the Fund 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. See id.
    \20\ See id. at 66978.
    \21\ See id. at 66977.
    \22\ With respect to trading halts, the Exchange may consider
all relevant factors in exercising its discretion to halt or suspend
trading in the Shares of a Fund. Trading in Shares of a Fund will be
halted if the circuit breaker parameters in NYSE Arca Equities Rule
7.12 have been reached. Trading may also be halted because of market
conditions or for reasons that, in the view of the Exchange, make
trading in the Shares inadvisable.
    \23\ See NYSE Arca Equities Rule 8.600(d)(2)(D).
    \24\ See NYSE Arca Equities Rule 8.600(d)(2)(C)(ii).
    \25\ See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii).
    \26\ See supra note 6 and accompanying text.
    \27\ See Notice, supra note 4, 78 FR at 66979.
---------------------------------------------------------------------------

    The Exchange has represented that the Shares are equity securities
subject to the Exchange's rules governing the trading of equity
securities.\28\ In support of this proposal, the Exchange has made
representations, including:
---------------------------------------------------------------------------

    \28\ See id. at 66978.
---------------------------------------------------------------------------

    (1) The Shares will conform to the initial and continuing listing
criteria under NYSE Arca Equities Rule 8.600.
    (2) The Exchange's surveillance procedures are adequate to properly
monitor Exchange trading of the Shares in all trading sessions and to
deter and detect violations of Exchange rules and applicable federal
securities laws.\29\
---------------------------------------------------------------------------

    \29\ FINRA surveils trading on the Exchange pursuant to a
regulatory services agreement. The Exchange is responsible for
FINRA's performance under this regulatory services agreement.
---------------------------------------------------------------------------

    (3) FINRA, on behalf of the Exchange, will communicate as needed
regarding trading in the Shares and exchange-traded securities held by
the Fund with other markets that are members of the ISG and FINRA, on
behalf of the Exchange, may obtain trading information regarding
trading in the Shares and exchange-traded securities held by the Fund
from such markets or

other entities. In addition, the Exchange may obtain information
regarding trading in the Shares and exchange-traded securities held by
the Fund from markets and other entities that are members of ISG or
with which the Exchange has in place a comprehensive surveillance
sharing agreement.\30\ The Fund will invest only in foreign securities
and ADRs that are traded on an exchange that is a member of the ISG or
with which the Exchange has in place a comprehensive surveillance
sharing agreement.
---------------------------------------------------------------------------

    \30\ For a list of the current members of ISG, see
www.isgportal.org. The Exchange notes that not all components of the
Disclosed Portfolio for the Fund may trade on markets that are
members of ISG or with which the Exchange has in place a
comprehensive surveillance sharing agreement.
---------------------------------------------------------------------------

    (4) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions.
    (5) Prior to the commencement of trading, the Exchange will inform
its Equity Trading Permit Holders (``ETP Holders'') in an Information
Bulletin of the special characteristics and risks associated with
trading the Shares. Specifically, the Information Bulletin will discuss
the following: (a) The procedures for purchases and redemptions of
Creation Unit Aggregations and that Shares are not individually
redeemable; (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of
due diligence on its ETP Holders to learn the essential facts relating
to every customer prior to trading the Shares; (c) the risks involved
in trading the Shares during the Opening and Late Trading Sessions when
an updated IOPV will not be calculated or publicly disseminated; (d)
how information regarding the IOPV is disseminated; (e) the requirement
that ETP Holders deliver a prospectus to investors purchasing newly
issued Shares prior to or concurrently with the confirmation of a
transaction; and (f) trading information.
    (6) For initial and continued listing, the Fund will be in
compliance with Rule 10A-3 under the Exchange Act,\31\ as provided by
NYSE Arca Equities Rule 5.3.\32\
---------------------------------------------------------------------------

    \31\ 17 CFR 240.10A-3.
    \32\ See Notice, supra note 4, 78 FR at 66978.
---------------------------------------------------------------------------

    (7) The Fund will not invest in swaps.
    (8) The Fund's investments will be consistent with its investment
objective and will not be used to enhance leverage.
    (9) The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
including Rule 144A securities. The Fund will monitor its portfolio
liquidity on an ongoing basis to determine whether, in light of current
circumstances, an adequate level of liquidity is being maintained, and
will consider taking appropriate steps in order to maintain adequate
liquidity if, through a change in values, net assets, or other
circumstances, more than 15% of the Fund's net assets are held in
illiquid assets.
    (10) A minimum of 100,000 Shares for the Fund will be outstanding
at the commencement of trading on the Exchange.
    This order is based on the Exchange's representations.
    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with the Exchange Act.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Exchange Act,\33\ that the proposed rule change (SR-NYSEArca-2013-111),
be, and it hereby is, approved.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\34\
---------------------------------------------------------------------------

    \34\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-30631 Filed 12-23-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: April 1, 2009 (Volume 74, Number 61)]
[Notices]
[Page 14841-14842]
[DOCID:fr01ap09-88]

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

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Petition for Waiver of Compliance

    In accordance with Part 211 of Title 49 Code of Federal Regulations
(CFR), notice is hereby given that the Federal Railroad Administration
(FRA) received a request for a waiver of compliance with certain
requirements of its safety standards. The individual petition is
described below, including the party seeking relief, the regulatory
provisions involved, the nature of the relief being requested, and the
petitioner's arguments in favor of relief.

Railserve Inc.

[Docket Number FRA-2008-0138]

    The Railserve Inc. (RASX) of Atlanta, Georgia, has petitioned for a
permanent waiver of compliance for fifteen (15) locomotives from the
requirements of the Railroad Safety Glazing Standards, Title 49 CFR
Part 223, which requires certified glazing in all windows. The
reporting marks on these locomotives are RASX 5487, RASX 1078, RASX
2460, RASX 2558, RASX 8959, RASX 5489, RASX 5077, RASX 1037, RASX 356,
RASX 4487, RASX 4489, RASX 8999, RASX 103, RPRY 2402, and LTEX 2503.
    These locomotives are used in switching operations inside the DOW A
& B Chemical Plants in Freeport, Texas. The switching operations
involve interchange with the Union Pacific Railroad Company for
inbounds and outbounds only on the trackage that is less than \1/4\
mile long. RASX states that there is no history of vandalism at the DOW
A & B Chemical Plants in Freeport, Texas, and that all of the
locomotives are parked inside the plants at all times. The top speed of
operations is 5 miles per hour. RASX has stated that to install glass
at FRA specifications would be cost prohibitive.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested party
desires an opportunity for oral comment, they should notify FRA, in
writing, before the end of the comment period and specify the basis for
their request.
    All communications concerning these proceedings should identify the
appropriate docket number (e.g., Waiver Petition Docket Number FRA-
2008-0138) and may be submitted by any of the following methods:
     Web site: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue, SE., Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Communications received within 45 days of the date of this notice
will be considered by FRA before final action is taken. Comments
received after that date will be considered as far as practicable. All
written communications concerning these proceedings are available for
examination during regular business hours (9 a.m.--5 p.m.) at the above
facility. All documents in the public docket are also available for
inspection and copying on the Internet at the docket facility's Web
site at http://www.regulations.gov.
    Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the comment (or signing the comment,
if submitted on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70; Pages
19477-78).

    Issued in Washington, DC on March 26, 2009.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program
Development.
[FR Doc. E9-7247 Filed 3-31-09; 8:45 am]

BILLING CODE 4910-06-P