[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Notices]
[Page 16529-16533]
[DOCID:fr01ap10-128]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29192; File No. 812-13681]

Legg Mason Partners Equity Trust, et al.; Notice of Application

March 26, 2010.
AGENCY: Securities and Exchange Commission (``Commission'').

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

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SUMMARY OF THE APPLICATION: Applicants request an order that would
permit certain series of registered open-end management investment
companies to acquire shares of other registered open-end management
investment companies and unit investment trusts (``UITs'') that are
within or outside the same group of investment companies.

APPLICANTS:  Legg Mason Partners Equity Trust (``LMP Equity Trust''),
Legg Mason Partners Variable Equity Trust (``LMP Variable Equity
Trust,'' and together with LMP Equity Trust, the ``Trusts'') and Legg
Mason Partners Fund Advisor, LLC (``LMPFA'' or the ``Adviser'').

FILING DATES: The application was filed on August 7, 2009 and amended
on December 30, 2009.

HEARING OR NOTIFICATION OF HEARING: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on April 20, 2010, and should be accompanied by proof of service
on applicants in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090; Applicants: Legg Mason Partners Equity
Trust and Legg Mason Partners Variable Equity Trust, 55 Water Street,
New York, NY 10041; Legg Mason Partners Fund Advisor, LLC, 620 Eighth
Avenue, New York, NY 10018.

FOR FURTHER INFORMATION CONTACT: Lewis B. Reich, Senior Counsel, at
(202) 551-6919, or Jennifer L. Sawin, Branch Chief, at<PHONE_NUMBER>
(Office of Investment Company Regulation, Division of Investment
Management).

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

Applicants' Representations

    1. Each Trust is a Maryland business trust registered as an open-
end management investment company under the Act. Each Trust is a series
trust whose shares are registered under the Securities Act of 1933, as
amended.\1\ The series of LMP Variable Equity Trust are offered to
registered separate accounts (``Registered Separate Accounts'') and
unregistered separate accounts (``Unregistered Separate Accounts'') of
insurance companies that are not affiliates of the Adviser; those
separate accounts fund certain variable annuity and variable life
insurance contracts and qualified retirement and pension plans
(together with Registered Separate Accounts and the Unregistered
Separate Accounts, the ``Variable Accounts'').\2\
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    \1\ Applicants request that the order also extend to any future
series of the Trusts, and any other existing or future registered
open-end management investment companies and any series thereof that
are part of the same group of investment companies, as defined in
section 12(d)(1)(G) of the Act as the Trusts and that are, or in the
future are, advised by the Adviser or any other investment adviser
controlling, controlled by, or under common control with the Adviser
(together with the existing series of the Trusts, the ``Funds'').
All entities that currently intend to rely on the requested order
are named as applicants. Any other entity that relies on the order
in the future will comply with the terms and conditions of the
application.
    \2\ Each Fund that operates as a Fund of Funds as defined below,
relies on the requested order and offers its shares to Variable
Accounts, a ``Variable Fund of Funds''.
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    2. LMPFA is registered with the Commission as an investment adviser
under the Investment Advisers Act of 1940 (``Advisers Act'') and serves
as the investment adviser to each Trust. LMPFA provides administrative
and certain oversight services to the Funds, manages the Funds' cash
and short-term instruments and is responsible for the overall
management of the Funds' investment programs. All investment advisers
and subadvisers to any Fund

will be registered as investment advisers under the Advisers Act.
    3. Applicants request relief to the extent necessary to permit (a)
Any Fund (each, a ``Fund of Funds'') to acquire shares of registered
open-end management investment companies (the ``Unaffiliated Investment
Companies'') and UITs (the ``Unaffiliated Trusts'', and together with
the Unaffiliated Investment Companies, the ``Unaffiliated Funds'') that
are not part of the same ``group of investment companies'' as defined
in section 12(d)(1)(G)(ii) of the Act as the Fund of Funds; (b) the
Unaffiliated Funds or their principal underwriters and any broker or
dealer registered under the Securities Exchange Act of 1934 (``1934
Act'') (``Broker'') to sell shares of the Unaffiliated Funds to the
Fund of Funds, (c) the Funds of Funds to acquire shares of certain
other Funds in the same ``group of investment companies'' as the Fund
of Funds (the ``Affiliated Funds,'' and together with the Unaffiliated
Funds, the ``Underlying Funds''), and (d) the Affiliated Funds, or
their principal underwriters and any Broker to sell shares of the
Affiliated Funds to the Funds of Funds. Certain of the Unaffiliated
Funds may be registered under the Act as either UITs or open-end
management investment companies that have received exemptive relief to
permit their shares be listed and traded on a national securities
exchange at negotiated prices (``ETFs''). Each Fund of Funds also may
invest in securities and investments that are not issued by registered
investment companies and that are consistent with its investment
objective.

Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) of the Act prohibits a registered investment
company from acquiring shares of an investment company if the
securities represent more than 3% of the total outstanding voting stock
of the acquired company, more than 5% of the total assets of the
acquiring company, or, together with the securities of any other
investment companies, more than 10% of the total assets of the
acquiring company. Section 12(d)(1)(B) of the Act prohibits a
registered open-end investment company, its principal underwriter and
any broker or dealer from selling the shares of the investment company
to another investment company if the sale will cause the acquiring
company to own more than 3% of the acquired company's voting stock, or
if the sale will cause more than 10% of the acquired company's voting
stock to be owned by investment companies generally.
    2. Section 12(d)(1)(J) of the Act provides that the Commission may
exempt any person, security, or transaction, or any class or classes of
persons, securities or transactions, from any provision of section
12(d)(1) if the exemption is consistent with the public interest and
the protection of investors. Applicants seek an exemption under section
12(d)(1)(J) of the Act from the limitations of sections 12(d)(1)(A) and
(B) to the extent necessary to permit (a) the Funds of Funds to acquire
shares of the Underlying Funds in excess of the limits set forth in
section 12(d)(1)(A) of the Act and (b) the Underlying Funds, their
principal underwriters and any Broker to sell shares of the Underlying
Funds to the Funds of Funds in excess of the limits set forth in
section 12(d)(1)(B) of the Act.
    3. Applicants state that the proposed arrangement will not give
rise to the policy concerns underlying sections 12(d)(1)(A) and (B),
which include concerns about undue influence over underlying funds,
excessive layering of fees, and overly complex fund structures.
Accordingly, applicants believe that the requested exemption is
consistent with the public interest and the protection of investors.
    4. Applicants state that the proposed arrangement will not result
in undue influence by a Fund of Funds or its affiliated persons over
the Underlying Funds. The concern about undue influence does not arise
in connection with a Fund of Funds' investment in the Affiliated Funds,
since they are part of the same group of investment companies. To limit
the control that a Fund of Funds or its affiliated persons may have
over an Unaffiliated Fund, applicants will comply with condition 1
below, which prohibits: (a) The Adviser, any person controlling,
controlled by or under common control with the Adviser, any investment
company and any issuer that would be an investment company but for
section 3(c)(1) or section 3(c)(7) of the Act advised or sponsored by
the Adviser or any person controlling, controlled by or under common
control with the Adviser (collectively, the ``Group''), and (b) any
other investment adviser within the meaning of section 2(a)(20)(B) of
the Act to a Fund of Funds (``Sub-Adviser''), any person controlling,
controlled by or under common control with the Sub-Adviser, and any
investment company or issuer that would be an investment company but
for section 3(c)(1) or 3(c)(7) of the Act (or portion of such
investment company or issuer) advised or sponsored by the Sub-Adviser
or any person controlling, controlled by or under common control with
the Sub-Adviser (collectively, the ``Sub-Adviser Group'') from
controlling (individually or in the aggregate) an Unaffiliated Fund
within the meaning of section 2(a)(9) of the Act.
    5. Applicants further state that they propose to prevent a Fund of
Funds, the Adviser, any Sub-Adviser, promoter or principal underwriter
of a Fund of Funds, as well as any person controlling, controlled by or
under common control with any of those entities (each, a ``Fund of
Funds Affiliate'') from taking advantage of an Unaffiliated Fund, with
respect to transactions between the Fund of Funds or a Fund of Funds
Affiliate and the Unaffiliated Fund or the Unaffiliated Fund's
investment adviser(s), sponsor, promoter, principal underwriter or any
person controlling, controlled by or under common control with any of
these entities (each, an ``Unaffiliated Fund Affiliate'').
Additionally, condition 5 precludes a Fund of Funds or Fund of Funds
Affiliate (except to the extent it is acting in its capacity as an
investment adviser to an Unaffiliated Investment Company or sponsor to
an Unaffiliated Trust) from causing an Unaffiliated Fund to purchase a
security in an offering of securities during the existence of any
underwriting or selling syndicate of which a principal underwriter is
an officer, director, trustee, advisory board member, investment
adviser, Sub-Adviser, or employee of the Fund of Funds, or a person of
which any such officer, director, trustee, investment adviser, Sub-
Adviser, member of an advisory board, or employee is an affiliated
person (each, an ``Underwriting Affiliate,'' except any person whose
relationship to the Unaffiliated Fund is covered by section 10(f) of
the Act is not an Underwriting Affiliate). An offering of securities
during the existence of any underwriting or selling syndicate of which
a principal underwriter is an Underwriting Affiliate is an ``Affiliated
Underwriting.''
    6. As an additional assurance that an Unaffiliated Investment
Company understands and appreciates the implications of an investment
by a Fund of Funds under the requested order, condition 8 requires that
prior to a Fund of Funds' investment in the Unaffiliated Investment
Company in excess of the limit of section 12(d)(1)(A)(i), a Fund of
Funds and the Unaffiliated Investment Company will execute an agreement
stating, without limitation, that their boards of directors or trustees
(``Boards'') and their investment advisers understand the terms and
conditions of

the order and agree to fulfill their responsibilities under the order
(``Participation Agreement''). Applicants note that an Unaffiliated
Fund (other than an ETF whose shares are purchased by a Fund of Funds
in the secondary market) will retain the right to reject an investment
by a Fund of Funds.\3\
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    \3\ An Unaffiliated Underlying Fund (including an ETF) would
retain its right to reject any initial investment by a Fund of Funds
in excess of the limits in section 12(d)(1)(A)(i) of the Act by
declining to execute the Participation Agreement with the Fund of
Funds.
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    7. Applicants do not believe that the proposed arrangement will
involve excessive layering of fees. With respect to investment advisory
fees, applicants state that, in connection with the approval of any
investment advisory contract under section 15 of the Act, the Board of
each Fund of Funds, including a majority of the trustees who are not
``interested persons,'' as defined in section 2(a)(19) of the Act
(``Independent Trustees''), will find that the management or advisory
fees charged under a Fund of Funds' advisory contract(s) are based on
services provided that are in addition to, rather than duplicative of,
services provided pursuant to any Underlying Fund's advisory
contract(s). Applicants further state that the Adviser will waive fees
otherwise payable to it by a Fund of Funds in an amount at least equal
to any compensation (including fees received pursuant to any plan
adopted by an Unaffiliated Investment Company pursuant to rule 12b-1
under the Act) received from an Unaffiliated Fund by the Adviser, or an
affiliated person of the Adviser, other than any advisory fees paid to
the Adviser or an affiliated person of the Adviser by the Unaffiliated
Fund, in connection with the investment by the Fund of Funds in the
Unaffiliated Fund.
    8. Applicants state that with respect to Registered Separate
Accounts that invest in a Variable Fund of Funds, no sales load will be
charged at the Fund of Funds level or at the Underlying Fund level, and
other sales charges and service fees, as defined in Rule 2830 of the
Conduct Rules of the National Association of Securities Dealers (``NASD
Conduct Rule 2830''),\4\ if any, will only be charged at the Fund of
Funds level or at the Underlying Fund level, not both. With respect to
other investments in Funds, any sales charges and/or service fees
charged with respect to shares of a Fund of Funds will not exceed the
limits applicable to funds of funds as set forth in NASD Conduct Rule
2830.
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    \4\ Any references to NASD Conduct Rule 2830 include any
successor or replacement rule to Conduct Rule 2830 that may be
adopted by the Financial Industry Regulatory Authority, Inc.
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    9. Applicants represent that each Variable Fund of Funds will
represent in the Participation Agreement that no insurance company
sponsoring a Registered Separate Account funding variable insurance
contracts will be permitted to invest in the Variable Fund of Funds
unless the insurance company has certified to such Fund of Funds that
the aggregate of all fees and charges associated with each contract
that invests in the Fund of Funds, including fees and charges at the
separate account, Fund of Funds, and Underlying Fund levels, are
reasonable in relation to the services rendered, the expenses expected
to be incurred, and the risks assumed by the insurance company.
    10. Applicants state that the proposed arrangement will not create
an overly complex fund structure. Applicants note that an Underlying
Fund will be prohibited from acquiring securities of any investment
company or company relying on section 3(c)(1) or 3(c)(7) of the Act in
excess of the limits contained in section 12(d)(1)(A), except in
certain circumstances identified in condition 12 below.

B. Section 17(a)

    1. Section 17(a) of the Act generally prohibits sales or purchases
of securities between a registered investment company and its
affiliated persons or affiliated persons of such persons. Section
2(a)(3) of the Act defines an ``affiliated person'' of another person
to include (a) Any person directly or indirectly owning, controlling,
or holding with power to vote, 5% or more of the outstanding voting
securities of the other person; (b) any person 5% or more of whose
outstanding voting securities are directly or indirectly owned,
controlled, or held with power to vote by the other person; and (c) any
person directly or indirectly controlling, controlled by, or under
common control with the other person.
    2. Applicants state that the Funds of Funds and the Affiliated
Funds may be deemed to be under common control and therefore affiliated
persons of one another. Applicants also state that the Funds of Funds
and the Underlying Funds may be deemed to be affiliated persons of one
another if a Fund of Funds acquires 5% or more of an Underlying Fund's
outstanding voting securities. In light of these possible affiliations,
section 17(a) could prevent an Underlying Fund from selling shares to
and redeeming shares from a Fund of Funds.\5\
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    \5\ Applicants acknowledge that receipt of any compensation by
(a) an affiliated person of a Fund of Funds, or an affiliated person
of such person, for the purchase by the Fund of Funds of shares of
an Underlying Fund or (b) an affiliated person of an Underlying
Fund, or an affiliated person of such person, for the sale by the
Underlying Fund of its shares to a Fund of Funds may be prohibited
by section 17(e)(1) of the Act. The Participation Agreement also
will include this acknowledgement.
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    3. Section 17(b) of the Act authorizes the Commission to grant an
order permitting a transaction otherwise prohibited by section 17(a) if
the Commission finds that (a) the terms of the proposed transaction are
fair and reasonable and do not involve overreaching on the part of any
person concerned; (b) the proposed transaction is consistent with the
policies of each registered investment company involved; and (c) the
proposed transaction is consistent with the general purposes of the
Act. Section 6(c) of the Act permits the Commission to exempt any
person or transactions from any provision of the Act if such exemption
is necessary or appropriate in the public interest and consistent with
the protection of investors and the purposes fairly intended by the
policy and provisions of the Act.
    4. Applicants submit that the proposed transactions satisfy the
standards for relief under sections 17(b) and 6(c) of the Act, as the
terms are fair and reasonable and do not involve overreaching.
Applicants state that the terms upon which an Underlying Fund will sell
its shares to or purchase its shares from a Fund of Funds will be based
on the net asset value of each Underlying Fund.\6\ Applicants also
state that the proposed transactions will be consistent with the
policies of each Fund of Funds and Underlying Fund, and with the
general purposes of the Act.
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    \6\ Applicants note that a Fund of Funds generally would
purchase and sell shares of an Unaffiliated Fund that operates as an
ETF through secondary market transactions at market prices rather
than through principal transactions with the Unaffiliated Fund at
net asset value. Applicants would not rely on the requested relief
from Section 17(a) for such secondary market transactions. A Fund of
Funds could seek to transact in ``Creation Units'' directly with an
ETF that is an Unaffiliated Fund pursuant to the requested section
17(a) relief. Certain of the Affiliated Funds also may operate as
ETFs; however, no Fund of Funds will be an ETF. Applicants are not
requesting, and the Commission is not granting, any relief from
section 17(a) to purchase and redeem Creation Units of any ETF that
is an Affiliated Fund.
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Applicants' Conditions

    Applicants agree that the order granting the requested relief shall
be subject to the following conditions:

    1. The members of the Group will not control (individually or in
the aggregate) an Unaffiliated Fund within the meaning of section
2(a)(9) of the Act. The members of a Sub-Adviser Group will not control
(individually or in the aggregate) an Unaffiliated Fund within the
meaning of section 2(a)(9) of the Act. If, as a result of a decrease in
the outstanding voting securities of an Unaffiliated Fund, the Group or
a Sub-Adviser Group, each in the aggregate, becomes a holder of more
than 25% of the outstanding voting securities of the Unaffiliated Fund,
then the Group or the Sub-Adviser Group will vote its shares of the
Unaffiliated Fund in the same proportion as the vote of all other
holders of the Unaffiliated Fund's shares. This condition will not
apply to a Sub-Adviser Group with respect to an Unaffiliated Fund for
which the Sub-Adviser or a person controlling, controlled by, or under
common control with the Sub-Adviser acts as the investment adviser
within the meaning section 2(a)(20)(A) of the Act (in the case of an
Unaffiliated Investment Company) or the sponsor (in the case of an
Unaffiliated Trust). With respect to each Variable Fund of Funds, a
Registered Separate Account will seek voting instructions from its
contract holders and will vote its shares of an Unaffiliated Fund in
accordance with the instructions received and will vote those shares
for which no instructions were received in the same proportion as the
shares for which instructions were received. An Unregistered Separate
Account will either (a) vote its shares of the Unaffiliated Fund in the
same proportion as the vote of all other holders of the Unaffiliated
Fund's shares or (b) seek voting instructions from its contract holders
and vote its shares in accordance with the instructions received and
vote those shares for which no instructions were received in the same
proportion as the shares for which instructions were received.
    2. No Fund of Funds or Fund of Funds Affiliate will cause any
existing or potential investment by the Fund of Funds in an
Unaffiliated Fund to influence the terms of any services or
transactions between the Fund of Funds or a Fund of Funds Affiliate and
the Unaffiliated Fund or an Unaffiliated Fund Affiliate.
    3. The Board of each Fund of Funds, including a majority of the
Independent Trustees, will adopt procedures reasonably designed to
assure that its Adviser and any Sub-Adviser to the Fund of Funds are
conducting the investment program of the Fund of Funds without taking
into account any consideration received by the Fund of Funds or Fund of
Funds Affiliate from an Unaffiliated Fund or an Unaffiliated Fund
Affiliate in connection with any services or transactions.
    4. Once an investment by a Fund of Funds in the securities of an
Unaffiliated Investment Company exceeds the limit of section
12(d)(1)(A)(i) of the Act, the Board of the Unaffiliated Investment
Company, including a majority of the Independent Trustees, will
determine that any consideration paid by the Unaffiliated Investment
Company to a Fund of Funds or a Fund of Funds Affiliate in connection
with any services or transactions: (a) Is fair and reasonable in
relation to the nature and quality of the services and benefits
received by the Unaffiliated Investment Company; (b) is within the
range of consideration that the Unaffiliated Investment Company would
be required to pay to another unaffiliated entity in connection with
the same services or transactions; and (c) does not involve
overreaching on the part of any person concerned. This condition does
not apply with respect to any services or transactions between an
Unaffiliated Investment Company and its investment adviser(s), or any
person controlling, controlled by, or under common control with such
investment adviser(s).
    5. No Fund of Funds or Fund of Funds Affiliate (except to the
extent it is acting in its capacity as an investment adviser to an
Unaffiliated Investment Company or sponsor to an Unaffiliated Trust)
will cause an Unaffiliated Fund to purchase a security in any
Affiliated Underwriting.
    6. The Board of an Unaffiliated Investment Company, including a
majority of the Independent Trustees, will adopt procedures reasonably
designed to monitor any purchases of securities by the Unaffiliated
Investment Company in an Affiliated Underwriting once an investment by
a Fund of Funds in the securities of the Unaffiliated Investment
Company exceeds the limit of section 12(d)(1)(A)(i) of the Act,
including any purchases made directly from an Underwriting Affiliate.
The Board of the Unaffiliated Investment Company will review these
purchases periodically, but no less frequently than annually, to
determine whether or not the purchases were influenced by the
investment by the Fund of Funds in the Unaffiliated Investment Company.
The Board of the Unaffiliated Investment Company will consider, among
other things: (a) whether the purchases were consistent with the
investment objectives and policies of the Unaffiliated Investment
Company; (b) how the performance of securities purchased in an
Affiliated Underwriting compares to the performance of comparable
securities purchased during a comparable period of time in
underwritings other than Affiliated Underwritings or to a benchmark
such as a comparable market index; and (c) whether the amount of
securities purchased by the Unaffiliated Investment Company in
Affiliated Underwritings and the amount purchased directly from an
Underwriting Affiliate have changed significantly from prior years. The
Board of the Unaffiliated Investment Company will take any appropriate
actions based on its review, including, if appropriate, the institution
of procedures designed to assure that purchases of securities in
Affiliated Underwritings are in the best interests of shareholders.
    7. Each Unaffiliated Investment Company will maintain and preserve
permanently in an easily accessible place a written copy of the
procedures described in the preceding condition, and any modifications
to such procedures, and will maintain and preserve for a period of not
less than six years from the end of the fiscal year in which any
purchase from an Affiliated Underwriting occurred, the first two years
in an easily accessible place, a written record of each purchase of
securities in an Affiliated Underwriting once an investment by a Fund
of Funds in the securities of an Unaffiliated Investment Company
exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth
(1) The party from whom the securities were acquired, (b) the identity
of the underwriting syndicate's members, (c) the terms of the purchase,
and (d) the information or materials upon which the determinations of
the Board of the Unaffiliated Investment Company were made.
    8. Prior to its investment in shares of an Unaffiliated Investment
Company in excess of the limit set forth in section 12(d)(1)(A)(i) of
the Act, the Fund of Funds and the Unaffiliated Investment Company will
execute a Participation Agreement stating, without limitation, that
their Boards and their investment advisers understand the terms and
conditions of the order and agree to fulfill their responsibilities
under the order. At the time of its investment in shares of an
Unaffiliated Investment Company in excess of the limit set forth in
section 12(d)(1)(A)(i), a Fund of Funds will notify the Unaffiliated
Investment Company of the investment. At such time, the Fund of Funds
will also transmit to the Unaffiliated Investment Company a list of the
names

of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of
Funds will notify the Unaffiliated Investment Company of any changes to
the list as soon as reasonably practicable after a change occurs. The
Unaffiliated Investment Company and the Fund of Funds will maintain and
preserve a copy of the order, the Participation Agreement and the list
with any updated information for the duration of the investment and for
a period of not less than six years thereafter, the first two years in
an easily accessible place.
    9. Before approving any advisory contract under section 15 of the
Act, the Board of each Fund of Funds, including a majority of the
Independent Trustees, shall find that the advisory fees charged under
the advisory contract are based on services provided that are in
addition to, rather than duplicative of, services provided under the
advisory contract(s) of any Underlying Fund in which the Fund of Funds
may invest. Such finding, and the basis upon which the finding was
made, will be recorded fully in the minute books of the appropriate
Fund of Funds.
    10. The Adviser will waive fees otherwise payable to it by a Fund
of Funds in an amount at least equal to any compensation (including
fees received pursuant to any plan adopted by an Unaffiliated
Investment Company pursuant to rule 12b-1 under the Act) received from
an Unaffiliated Fund by the Adviser, or an affiliated person of the
Adviser, other than any advisory fees paid to the Adviser or its
affiliated person by the Unaffiliated Fund, in connection with the
investment by the Fund of Funds in the Unaffiliated Fund. Any Sub-
Adviser will waive fees otherwise payable to the Sub-Adviser, directly
or indirectly, by the Fund of Funds in an amount at least equal to any
compensation received by the Sub-Adviser, or an affiliated person of
the Sub-Adviser, from an Unaffiliated Fund, other than any advisory
fees paid to the Sub-Adviser or its affiliated person by the
Unaffiliated Investment Company, in connection with the investment by
the Fund of Funds in the Unaffiliated Investment Company made at the
direction of the Sub-Adviser. In the event that the Sub-Adviser waives
fees, the benefit of the waiver will be passed through to the Fund of
Funds.
    11. With respect to Registered Separate Accounts that invest in a
Variable Fund of Funds, no sales load will be charged at the Fund of
Funds level or at the Underlying Fund level, and other sales charges
and service fees, as defined in NASD Conduct Rule 2830, if any, will
only be charged at the Fund of Funds level or at the Underlying Fund
level, not both. With respect to other investments in a Fund of Funds,
any sales charges and/or service fees charged with respect to shares of
a Fund of Funds will not exceed the limits applicable to funds of funds
set forth in NASD Conduct Rule 2830.
    12. No Underlying Fund will acquire securities of any other
investment company or company relying on section 3(c)(1) or 3(c)(7) of
the Act in excess of the limits contained in section 12(d)(1)(A) of the
Act, except to the extent that such Underlying Fund: (a) Receives
securities of another investment company as a dividend or as a result
of a plan of reorganization of a company (other than a plan devised for
the purpose of evading section 12(d)(1) of the Act); or (b) acquires
(or is deemed to have acquired) securities of another investment
company pursuant to exemptive relief from the Commission permitting
such Underlying Fund to: (i) acquire securities of one or more
affiliated investment companies for short-term cash management
purposes, or (ii) engage in interfund borrowing and lending
transactions.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-7290 Filed 3-31-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 79, Number 209 (Wednesday, October 29, 2014)]
[Notices]
[Pages 64445-64447]
[FR Doc No: 2014-25667]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73413; File No. SR-BATS-2014-051]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to Related
to Fees for Use of BATS Exchange, Inc.

October 23, 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 October 16, 2014, BATS Exchange, Inc. (the ``Exchange'' or ``BATS
'') 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

    The Exchange filed a proposal to amend the fee schedule applicable
to Members \3\ and non-members of the Exchange pursuant to BATS Rules
15.1(a) and (c). Changes to the fee schedule pursuant to this proposal
are effective upon filing.
---------------------------------------------------------------------------

    \3\ A Member is defined as ``any registered broker or dealer
that has been admitted to membership in the Exchange.'' See Exchange
Rule 1.5(n).
---------------------------------------------------------------------------

    The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.com/, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    On April 17, 2014, the Exchange filed a proposal to adopt rules to
create a Lead Market Maker Program (the ``Program'') on an immediately
effective basis.\4\ The Exchange then filed a proposal to adopt pricing
related to the Program on May 28, 2014.\5\ The Program was implemented
on June 2, 2014.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 72020 (April 25,
2014) 79 FR 24807 (May 1, 2014) (SR-BATS-2014-015).
    \5\ See Securities Exchange Act Release No. 72333 (June 5, 2014)
79 FR 33630 (June 11, 2014) (SR-BATS-2014-019).
---------------------------------------------------------------------------

    The Program provides enhanced rebates to market makers registered
with the Exchange (``Market Makers'') \6\ that are also registered as a
lead market maker (``LMM'') in an LMM Security \7\ and meet certain
minimum quoting standards (``Minimum Performance Standards'') \8\ in
BATS-listed ETPs \9\ based on the consolidated average daily volume
(``CADV'') of the security. The annual listing fee for an ETP is also
based on the CADV of the security and was designed to offset the
enhanced rebates paid to LMMs in the security. The Program was intended
to strengthen market quality for BATS-listed ETPs. The Program,
however, has not been adopted by issuers and market participants as
readily as the Exchange had originally anticipated and there are
currently no BATS-listed ETPs participating in the Program. The purpose
of this filing is to eliminate such enhanced rebates and to make
corresponding clarifying changes to the fee schedule. In coordination
with this filing to eliminate the enhanced rebates for LMMs in LMM
Securities, the Exchange has filed a separate filing to eliminate all
annual listing fees for BATS-listed ETPs.\10\
---------------------------------------------------------------------------

    \6\ See BATS Rule 11.5.
    \7\ As defined in Rule 11.8(e)(1)(C), LMM Security means an ETP
that has an LMM.
    \8\ As defined in Rule 11.8(e)(1)(D), Minimum Performance
Standards means a set of standards applicable to an LMM that may be
determined from time to time by the Exchange.
    \9\ As defined in Rule 11.8(e)(1)(A), ETP means any security
listed pursuant to Exchange Rule 14.11.
    \10\ See SR-BATS-2014-050, filed October 16, 2014, available at:
http://www.batstrading.com/regulation/rule_filings/bzx/.
---------------------------------------------------------------------------

    The Exchange proposes to modify its pricing for orders that add
displayed liquidity in LMM Securities entered by LMMs that meet the
Minimum Performance Standards (a ``Qualified LMM''). The Exchange is
proposing to eliminate its existing tiered rebate structure that is
based on the CADV of the LMM Security.\11\ Currently, unless an LMM
otherwise qualifies for a higher rebate, a Qualified LMM shall receive
the following rebates for each share of added displayed liquidity:
where the CADV is 10,000 or less, $0.0070; where the CADV is between
10,001 and 40,000, $0.0050; where the CADV is between 40,001 and
80,000, $0.0045; where the CADV is between 80,001 and 150,000, $0.0040;
and where the CADV is greater than 150,000, $0.0035. While not possible
under the current pricing structure, in the event that a Qualified LMM
is ever eligible to receive a higher per share rebate under non-LMM
pricing, the Qualified LMM will receive such higher non-LMM rebate. As
currently implemented, LMM rebates are not eligible for additional
rebates like the NBBO Setter or NBBO Joiner rebates currently offered
by the Exchange. The Exchange is proposing to eliminate enhanced
rebates for Qualifying LMMs that add liquidity in LMM securities and
instead apply the standard fees and rebates to all Members in all
securities, including BATS-listed securities.
---------------------------------------------------------------------------

    \11\ As defined in the proposed fee schedule, ``CADV'' means
consolidated average daily volume calculated as the average daily
volume reported for a security by all exchanges and trade reporting
facilities to a consolidated transaction reporting plan for the
three calendar months preceding the month for which the fees apply.
---------------------------------------------------------------------------

    The Exchange is not proposing to make any other changes to its
existing price structure. The Exchange is also not proposing to
terminate operation of the Program. Thus, while LMMs will not receive
enhanced rebates in BATS-listed ETPs, Market Makers may continue to
register as LMMs in such BATS-listed ETPs in accordance with BATS Rule
11.8(e).
Corresponding Changes
    Finally, the Exchange proposes to make several non-substantive
changes to the fee schedule, including removal of the text of footnote
3, which defines the term CADV, and reserving the footnote in order to
maintain the current numbering of footnotes in the fee schedule.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder that are applicable to a national securities exchange, and,
in particular, with the requirements of Section 6 of the Act.\12\
Specifically, the Exchange believes that the proposed rule change is
consistent with Section 6(b)(4) and 6(b)(5) of the

Act,\13\ in that it provides for the equitable allocation of reasonable
dues, fees and other charges among members and other persons using any
facility or system which the Exchange operates or controls and it does
not unfairly discriminate between customers, issuers, brokers or
dealers. The Exchange notes that it operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f.
    \13\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Exchange believes that the proposal to eliminate LMM rebates is
reasonable, equitable, and not unfairly discriminatory because it will
result in standard fees and rebates being applied equally to all
Members of the Exchange. Further, the potential decrease in rebates to
LMMs in LMM Securities is reasonable, equitable, and not unfairly
discriminatory because there are not currently any LMM Securities
listed on the Exchange.
    The Exchange further believes that the proposal, especially when
considered in conjunction with a separate proposal filed today that
will eliminate annual listing fees for ETPs listed on the Exchange,\14\
will encourage the development of new financial products, provide a
better trading environment for investors in ETPs, and generally
encourage greater competition between listing venues by allowing the
Exchange to provide issuers with a venue on which they are able to list
ETPs without having to pay annual fees.
---------------------------------------------------------------------------

    \14\ See supra note 10.
---------------------------------------------------------------------------

    Based on the foregoing, the Exchange believes that the proposed
amendments to the fee schedule provides for the equitable allocation of
reasonable dues, fees and other charges among members and other persons
using any facility or system which the Exchange operates or controls
and it does not unfairly discriminate between customers, issuers,
brokers or dealers. Further, the Exchange believes that, combined with
the amendment to eliminate annual listing fees, [sic] will enhance the
Exchange's ability to compete as a listing venue in ETPs by allowing
the Exchange to provide listing services without annual fees that it
would otherwise not be able to provide if it continued to offer
enhanced rebates. Accordingly, by allowing the Exchange to better
compete as a listing venue, the Exchange believes that the proposal is
designed 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. Further, the Exchange
believes that the proposal will enhance the Exchange's program for
listing securities on the Exchange, which will, in turn, provide
issuers with another option for raising capital in the public markets,
thereby promoting the principles discussed in Section 6(b)(5) of the
Act.\15\
---------------------------------------------------------------------------

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

Corresponding Changes
    Finally, the Exchange believes that the clarifying change that
deletes the text of footnote 3 and designates it as being reserved is
reasonable as it will help to avoid confusion for those that review the
Exchange's fee schedule. The Exchange notes that this proposed change
is not designed to amend any fee or rebate, nor alter the manner in
which it assesses fees or calculates rebates. The Exchange believes
that the proposed amendment is intended to make the fee schedule
clearer and less confusing for investors and eliminate potential
investor confusion, thereby removing impediments to and perfecting the
mechanism of a free and open market and a national market system, and,
in general, protecting investors and the public interest.

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

    The Exchange 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. The
Exchange does not believe that the changes burden competition, but
instead, enhance competition, as they are made in conjunction with the
elimination of annual fees for ETPs listed on the Exchange,\16\ as
described above, which the Exchange believes will increase the
competitiveness of the Exchange's listings program. As stated above,
the Exchange notes that it operates in a highly competitive market in
which market participants can readily direct order flow to competing
venues if the [sic] deem fee structures to be unreasonable or
excessive. As such, the proposal is a competitive proposal that is
intended to enhance the Exchange's ability to compete as a listing
venue for ETPs, which will, in turn, benefit the Exchange, ETP issuers,
and all Exchange participants. In addition, the Exchange believes that
the proposed non-substantive changes to the footnotes on the fee
schedule would not affect intermarket nor intramarket competition
because the changes do not alter any fees or rebates on the Exchange or
the criteria associated therewith.
---------------------------------------------------------------------------

    \16\ See supra note 10.
---------------------------------------------------------------------------

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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any written comments from members or other interested parties.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \17\ and paragraph (f) of Rule 19b-4
thereunder.\18\ 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.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78s(b)(3)(A).
    \18\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

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-BATS-2014-051 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-BATS-2014-051. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule

change that are filed with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for Web site viewing and printing in the Commission's Public
Reference Room, 100 F Street NE., Washington, DC 20549 on official
business days between the hours of 10:00 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-BATS-2014-051, and should be submitted on or before
November 19, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O' Neill,
Deputy Secretary.
[FR Doc. 2014-25667 Filed 10-28-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: February 13, 2008 (Volume 73, Number 30)]
[Notices]
[Page 8395-8396]
[DOCID:fr13fe08-163]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Notice of 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) has received a request for a temporary waiver of compliance from
certain requirements of Federal railroad safety regulations. 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 argument in favor of relief.

South Carolina Public Railways

[Docket Number FRA-2008-0004]

    South Carolina Public Railways (SCPR) has submitted a request for a
temporary waiver from the requirements of 49 CFR Part 236, Subpart H,
in order to allow SCPR to utilize Railsoft System, Inc.'s TrackAccess
Electronic Block Register System in the autonomous mode on
approximately 15.3 miles of track belonging to its subsidiary, the East
Cooper & Berkeley Railroad (ECBR), until a Railroad Safety Program Plan
(RSPP) and a Product Safety Plan (PSP) are completed, submitted to FRA,
and approved. The TrackAccess system is presently utilized on ECBR in
the assisted mode. Maximum speed on TrackAccess controlled track will
be 20 mph.
    Neither an RSPP, PSP, or an Informational Filing to allow testing,
as are required under 49 CFR 236.905, 236.907, or 236.913 respectively,
have yet been submitted. SCPR anticipates the necessary RSPP and PSP
will be completed and submitted to FRA no later than June 2008.
    As described by SCPR, the TrackAccess system is a computer
application that is capable of electronically generating and/or
delivering exclusive track occupancy permission for both trains and
roadway workers on designated track. TrackAccess may be operated in one
of two modes-assisted or autonomous. In

the assisted mode, a track authority is obtained from the system and
electronically issued to the individual requesting the authority by a
controller or dispatcher. In the autonomous mode, the authority is
electronically obtained directly from TrackAccess by the individual
requesting the authority, and no dispatcher is involved. TrackAccess is
designed for low traffic shortline, branchline, and yard rail
operations. In the view of the petitioner, TrackAccess protects train
movements, it does not direct train movements.
    According to SCPR, safety features of TrackAccess include: (1)
protection against the issuance of overlapping permissions; (2)
positive identification and verification of individuals requesting and
receiving permissions; (3) verification of receipt of safety bulletins
prior to issuance of permissions; and (4) required ``three-part
communication'' procedures for telephony transactions.
    Although the current petition is from the named party, FRA
anticipates that, should relief be granted to the named petitioner,
other petitioners may step forward. In order to avoid duplicative
publications and filings related to this request for temporary relief,
FRA also requests comments regarding whether, and under what
conditions, FRA should permit other parties similarly situated to
subscribe to any relief provided in this docket.
    FRA notes that the instant petition was not accompanied by
supporting safety data. However, FRA is advised that such data will be
filed. Accordingly, potential commenters are requested to monitor the
docket status and respond when such data is filed.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. All communications
concerning these proceedings should identify the appropriate docket
number (e.g., Waiver Petition Docket Number FRA-2008-0004) and may be
submitted by one 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.
    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.
    Communications received within 30 days of the date of this notice
or within 30 days following the filing of supporting safety data,
whichever is later, will be considered by FRA before final action being
taken. Comments received after this period 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
on behalf of an association, business, labor union, etc.). You may
review the 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 February 8, 2008.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program
Development.
 [FR Doc. E8-2660 Filed 2-12-08; 8:45 am]

BILLING CODE 4910-06-P


[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Rules and Regulations]
[Pages 75445-75446]
[FR Doc No: 2011-30530]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2011-0748; Airspace Docket No. 11-ACE-13]

Amendment of Class E Airspace; Olathe, KS

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: This action removes Class E airspace designated as an
extension to Class D, and amends Class E airspace for Olathe, KS.
Decommissioning of the Johnson County VHF Omnidirectional Range/
Distance Measuring Equipment (VOR/DME) at Johnson County Executive
Airport, Olathe, KS, has made this action necessary to enhance the
safety and management of Instrument Flight Rule (IFR) operations at the
airport.

DATES: Effective date: 0901 UTC, February 9, 2012. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and
publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 321-
7716.

SUPPLEMENTARY INFORMATION:

History

    On August 26, 2011, the FAA published in the Federal Register a
notice of proposed rulemaking to amend Class E airspace for Olathe, KS,
reconfiguring controlled airspace at Johnson County Executive Airport
(76 FR 53361) Docket No. FAA-2011-0748. Interested parties were invited
to participate in this rulemaking effort by submitting written comments
on the proposal to the FAA. No comments were received. Class E airspace
designations are published in paragraph 6005 of FAA Order 7400.9V dated
August 9, 2011, and effective September 15, 2011, which is incorporated
by reference in 14 CFR Part 71.1. The Class E airspace designations
listed in this document will be published subsequently in the Order.

The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR)
Part 71 by removing Class E airspace designated as an extension to a
Class D or Class E surface area, and modifying Class E airspace
extending upward from 700 feet above the surface, for standard
instrument approach procedures at Johnson County Executive Airport,
Olathe, KS. Decommissioning of the Johnson County VOR/DME and
cancellation of the VOR approach at Johnson County Executive Airport
has made reconfiguration of the airspace necessary for the safety and
management of IFR operations at the airport.
    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation: (1) Is not a ``significant regulatory
action'' under Executive Order 12866; (2) is not a ``significant rule''
under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a regulatory evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it amends controlled airspace at Johnson County Executive Airport,
Olathe, KS.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR Part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR Part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9V, Airspace Designations and
Reporting Points, dated August 9, 2011, and effective September 15,
2011 is amended as follows:
* * * * *

Paragraph 6004 Class E airspace areas designated as an extension to
a Class D or Class E surface area.

* * * * *

ACE KS E4 Olathe, Johnson County Executive Airport, KS [Removed]

Paragraph 6005 Class E Airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

ACE KS E5 Olathe, Johnson County Executive Airport, KS [Amended]

Olathe, Johnson County Executive Airport, KS.
    (Lat. 38[deg]50'51'' N., long. 94[deg]44'15'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.4-mile radius of Johnson County Executive Airport.

    Issued in Fort Worth, Texas, on November 9, 2011.
Gail L. Kasson,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2011-30530 Filed 12-1-11; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: October 16, 2009 (Volume 74, Number 199)]
[Proposed Rules]
[Page 53193-53197]
[DOCID:fr16oc09-21]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0704; FRL-8969-5]

Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Volatile Organic Compound Emission Control Measures for Lake
and Porter Counties in Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On September 4, 2009, the Indiana Department of Environmental
Management (IDEM) submitted several volatile organic compound (VOC)
rules for approval into its State Implementation Plan (SIP). The
purpose of these rules is to satisfy the VOC reasonably available
control technology (RACT) requirements for the Lake and Porter portion
of the Chicago-Gary-Lake County, IL-IN, 8-hour ozone nonattainment
area. These rules are approvable because they satisfy the

control and enforceability requirements of the Clean Air Act (Act),
including Indiana's requirement to adopt VOC RACT rules for the Control
Technique Guideline (CTG) documents issued by EPA in 2006, 2007 and
2008.

DATES: Comments must be received on or before November 16, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0704, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0704. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters and any form of encryption, and be free
of any defects or viruses. For additional instructions on submitting
comments, go to Section I of the SUPPLEMENTARY INFORMATION section of
this document.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays. We recommend that you telephone Steven Rosenthal at (312)
886-6052 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:

I. What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Taking Today?
III. What Is the Purpose of This Action?
IV. What Is EPA's Analysis of Indiana's Submitted VOC Rules and
Negative Declaration?
V. Statutory and Executive Order Reviews

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

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline
identified.

II. What Action Is EPA Taking Today?

    EPA is proposing to approve several new VOC rules into Indiana's
SIP because they are consistent with the Act, including its VOC RACT
requirements. These include source categories for which IDEM had
previously indicated it had no sources (negative declarations) and
rules intended to satisfy CTGs issued in 2006, 2007 and 2008. EPA is
also approving a negative declaration for the 2008 CTG ``Control
Technique Guidelines for Fiberglass Boat Manufacturing Materials'' in
which IDEM documents that it has no sources subject to this CTG.

III. What Is the Purpose of This Action?

    The primary purpose of these rules is to satisfy the requirement in
section 182(b) of part D of title I of the Act that VOC RACT rules be
adopted for ozone nonattainment areas. This would include the Chicago-
Gary-Lake County, IL-IN, 8-hour ozone nonattainment area. These rules
satisfy the requirement for VOC RACT rules for existing, pre-2006, CTG
and major non-CTG source categories which were due on September 15,
2006, as well as the requirement to adopt VOC RACT rules for the CTG
documents issued by EPA in 2006, 2007 and 2008. Section 182(b)(2)(A) of
the Act provides that for nonattainment areas classified as moderate or
above, States must revise their SIPs to include RACT for each category
of VOC sources covered by a CTG document issued between November 15,
1990, and the date of attainment.
    On March 24, 2008 (73 FR 15416), EPA made a finding that Indiana
failed to submit those VOC RACT rules which were due on September 15,
2006, for the Chicago-Gary-Lake County, IL-IN, 8-hour ozone
nonattainment area. Indiana submitted the fully adopted required

VOC RACT rules to EPA on September 4, 2009. Failure to submit a
complete VOC RACT submittal would have triggered the offset sanction
identified in section 179(b)(2) of the Act on September 24, 2009, and
the highway funding sanction in accordance with section 179(b)(1) of
the Act on March 24, 2010.
    EPA would be required by section 110(c) of the Act to promulgate a
Federal Implementation Plan (FIP) if it has not approved these VOC RACT
rules into Indiana's SIP by March 24, 2010. Finalization of the action
proposed here would end any obligation for EPA to promulgate a FIP
addressing this VOC RACT requirement.

IV. What Is EPA's Analysis of Indiana's Submitted VOC Rules and
Negative Declaration?

    Indiana's VOC rules for Lake and Porter Counties are consistent
with the Act and EPA VOC RACT guidance, and are all approvable. A brief
description of the rules that IDEM has submitted is provided below.
This description contains information on the applicability cutoffs,
control requirements and the relevant EPA VOC RACT guidance. These
rules all have appropriate compliance test methods and recordkeeping
requirements. Compliance with these rules is required by April 11,
2011.

(A) 326 IAC 8-2-2--Automobile and Light Duty Truck Coating Operations

    This rule requires application of new coating limits, development
of work practice plans for coating and cleaning operations, and is
applicable to facilities with uncontrolled emissions exceeding 15
pounds per day of VOC. These revised requirements are based on and
consistent with the 2008 CTG document ``Control Techniques Guidelines
for Automobile and Light-Duty Truck Assembly Coatings.'' IDEM's
Compliance methods, in 326 IAC 8-1-2, have also been revised to
reference EPA's 2008 revised Automobile Topcoat Protocol in the
document ``Protocol for Determining the Daily Volatile Organic Compound
Emission Rate of Automobile and Light-Duty Truck Primer-Surfacer and
Topcoat Operations.''

(B) 326 IAC 8-2-5--Paper Coating

    This rule has been revised to add more stringent coating limits
that apply to individual coating lines with potential emissions of at
least 25 tons per year. The new limits can either be achieved through
the use of low VOC compliant coatings or installation of VOC control
devices to achieve a 90 percent overall VOC control efficiency, or a
combination of the two options that is equivalent to the low VOC
coating limit. Additional solvent cleaning work practices apply to
facilities emitting at least 15 pounds per day of uncontrolled VOC
emissions from all coating lines and related cleaning activities at the
facility. These revisions are based on and consistent with EPA's 2007
CTG ``Control Techniques Guidelines for Paper, Film and Foil
Coatings.''

(C) 326 IAC 8-2-6 Metal Furniture Coating Operations

    This rule has been revised to add more stringent coating limits by
coating type for metal furniture coating facilities in which actual VOC
emissions equal or exceed 15 pounds per day, before add-on controls. As
an alternative to complying with low VOC coating limits, compliance can
be achieved with a capture and control device that achieves an overall
control efficiency of at least 90 percent or by using a combination of
lower VOC coatings and add-on control that is equivalent to the low VOC
coating limit. There are also application equipment standards,
including the use of high volume low-pressure (HVLP) spray equipment
and other application methods equivalent to or better than HVLP. Work
practices must be implemented that minimize VOC emissions from mixing
operations and storage tanks and handling operations for cleaning and
coating related materials. These revisions are based on and consistent
with EPA's 2007 ``Control Techniques Guidelines for Metal Furniture
Coatings.''

(D) 326 IAC 8-2-7 Large Appliance Coating Operations

    This rule has been revised to add more stringent coating limits by
coating type for large appliance coating facilities in which actual VOC
emissions equal or exceed 15 pounds per day, before add-on controls. As
an alternative to complying with low VOC coating limits, compliance can
be achieved with a capture and control device that achieves an overall
control efficiency of at least 90 percent or by using a combination of
lower VOC coatings and add-on control that is equivalent to the low VOC
coating limit. There are also application equipment standards,
including the use of HVLP spray equipment and other application methods
equivalent to or better than HVLP. Work practices must be implemented
that minimize VOC emissions from mixing operations and storage tanks
and handling operations for cleaning and coating related materials.
These revisions are based on and consistent with EPA's 2007 ``Control
Techniques Guidelines for Large Appliance Coatings.''

(E) 326 IAC 8-2-9 Miscellaneous Metal and Plastic Parts Coating
Operation

    This rule has been revised to add VOC limits for a number of
different miscellaneous metals and plastic parts coating limitations at
facilities in which actual VOC emissions equal or exceed 15 pounds per
day, before add-on controls, from all such coating operations. The
categories covered include metal parts and products (not covered by
another metal coating rule for a specific source category, e.g. can
coating), plastic parts and products, automotive/transportation
coatings, business machines, motor vehicle materials, and pleasure
craft surface coating. As alternatives to complying with low VOC
coating limits, compliance can be achieved with a capture and control
device that achieves an overall control efficiency of at least 90
percent or by using a combination of lower VOC coatings and add-on
control that is equivalent to the low VOC coating limit. The two low-
VOC options also require the use of specific application methods,
including the use of HVLP spray equipment and other application methods
equivalent to or better than HVLP. Work practices must be implemented
that minimize VOC emissions from mixing operations and storage tanks
and handling operations for cleaning and coating related materials.
These revisions are based on and consistent with EPA's 2008 ``Control
Techniques Guidelines for Miscellaneous Metal and Plastic Parts
Coatings.''

(F) 326 IAC 8-2-10 Flat Wood Panel

    This rule has been revised to add more stringent coating limits by
coating type for flat wood panel manufacturing facilities in which
actual VOC emissions equal or exceed 15 pounds per day, before add-on
controls. As an alternative to complying with low VOC coating limits,
compliance can be achieved with a capture and control device that
achieves an overall control efficiency of at least 90 percent or by
using a combination of lower VOC coatings and add-on control that is
equivalent to the low VOC coating limit. Work practices must be
implemented that minimize VOC emissions from mixing operations and
storage tanks and handling operations for cleaning and coating related
materials. These revisions are based on and consistent with EPA's 2006
``Control Techniques Guidelines for Flat Wood Paneling Coatings.''

(G) 326 IAC 8-5-5 Flexible Package Printing

    IDEM's Graphic Arts rule has been revised to include work practices
to minimize VOC emissions from cleaning operations from all sources in
which the total VOC emissions from all flexible printing lines equal or
exceed 15 pounds per day, before add-on controls. This rule has also
been revised to include more stringent capture and control systems for
flexible packaging printing presses at facilities with potential
emissions of 25 tons or greater per year, prior to controls, from inks,
coatings, and adhesives combined. The overall control requirements vary
from 65 percent to 80 percent depending on the installation date of the
press and by the first installation date of the add-on control device
controlling the flexible packaging printing press. This rule is based
on and consistent with EPA's 2006 ``Control Techniques Guidelines for
Flexible Package Printing.''

(H) 326 IAC 8-16 Offset Lithographic Printing and Letterpress Printing

    This new rule applies to offset lithographic and letterpress
printing operations that emit three tons or more of VOC per 12-month
rolling average before controls. Those lithographic presses that exceed
this cutoff must control the fountain solution by reducing the VOC
content and alcohol content of the fountain solution. Also, both
lithographic and letterpresses that exceed this cutoff must restrict
the use of cleaning materials that exceed both a 70 percent VOC content
and a VOC composite pressure vapor pressure of 10 millimeters of
Mercury (mmHg). Individual heatset web offset lithographic printing
presses and heatset web letterpresses with potential emissions from the
dryer ink of 25 tons of VOC per year or greater must operate a control
system that reduces emissions from each dryer by 90 percent or 95
percent, if installed on or after January 1, 2010, or maintain a
maximum VOC outlet concentration of 20 parts per million by volume. Any
presses that are claimed to be exempt must keep records documenting
that their emissions are below the applicability cutoffs. These
revisions are based on and consistent with EPA's 2006 CTG ``Control
Techniques Guidelines for Offset Lithographic Printing and Letterpress
Printing.''

(I) 326 IAC 8-17 Industrial Solvent Cleaning Operations

    This new rule applies to sources that emit three tons of VOC (or
more) per 12-month rolling average from all solvent cleaning
operations. This rule limits the VOC content of specific solvent
cleaning operations, including a general product cleaning limit of 0.42
pounds per gallon. As an alternative to these VOC content limits,
sources may use solvents for industrial cleaning operations that have a
VOC composite partial vapor pressure at or below 8 mmHG. This rule also
specifies the types of cleaning devices and methods that can be used,
including wipe cleaning, the use of closed containers as well as
nonatomized solvent flow. Atomizing any solvent is generally
prohibited. Work practices are required to minimize VOC emissions from
the use, handling, storage, and disposal of cleaning solvents and shop
towels. This rule is based on and consistent with EPA's 2006 ``Control
Techniques Guidelines for Industrial Cleaning Solvents.''

(J) 326 IAC 8-22 Miscellaneous Industrial Adhesives

    This new rule applies to sources that emit three tons of VOC (or
more) per 12-month rolling average from all miscellaneous industrial
adhesive application processes and related cleaning activities, before
consideration of controls. This rule contains VOC content limits for
adhesives and adhesive primers and specific limits based upon the
substrate. Compliance with these adhesive and adhesive primer limits
can also be achieved by the use of add-on control equipment if it
achieves an overall capture and control efficiency of at least 85
percent and if the add-on control equipment is continuously monitored.
This rule also specifies work practices to minimize VOC emissions from
mixing operations, storage tanks and handling operations for adhesives,
adhesive primers and cleaning materials. Specific application methods,
including the use of HVLP spray equipment and other application methods
equivalent to or better than HVLP, are also required. There are also
specific recordkeeping requirements for sources subject to the coating
limits and add-on control requirements and for exempt sources. This
rule is based on and consistent with EPA's 2008 ``Control Techniques
Guidelines for Miscellaneous Industrial Adhesives.''

(K) 326 IAC 8-18 Synthetic Organic Chemical Manufacturing Industry
(SOCMI) Air Oxidation, Distillation, and Reactor Processes

    This new rule applies to (1) any vent stream originating from an
air oxidation process unit that produces one or more of the chemicals
listed in 40 CFR 60.617, which is a list of chemicals affected by the
New Source Performance Standards (NSPS) for SOCMI Air Oxidation Unit
Processes and (2) any vent stream originating from a reactor or
distillation process unit that produces one or more of the chemicals
listed in Appendix A of the 1993 CTG ``Control of VOC Emissions from
Reactor Processes and Distillation Operations in (SOCMI).'' SOCMI
refers to those facilities which produce organic compounds through
industrial synthesis. The control measures in this rule largely involve
the destruction of VOC emissions by combustion devices such as boilers,
incinerators or flares. EPA has issued both NSPS and CTGs for the
control of VOCs from SOCMI air oxidation, distillation and reactor
operations. IDEM has incorporated portions of the NSPS SOCMI
requirements into its rule because they reflect the requirements in the
CTGs and are already in a regulatory framework. This rule is based on
and consistent with the 1984 CTG ``Control of VOC Emissions from Air
Oxidation Processes in Synthetic Organic Chemical Manufacturing
Industry'' and the 1993 CTG ``Control of VOC Emissions from Reactor
Processes and Distillation Operations in (SOCMI).''

(L) 326 IAC 8-19 Control of VOC Emissions From Process Vents in Batch
Operations

    This new rule applies to process vents associated with batch
operations at sources identified by specified standard industrial
classification codes at sources that have the potential to emit greater
than or equal to 100 tons per year of VOC from batch processing
operations and any other non-CTG source category combined. Unit
operations with uncontrolled total annual emissions of less than or
equal to 500 pounds per year of VOCs and batch process trains
containing process vents that have, in the aggregate, uncontrolled
total annual emissions of less than 30,000 pounds per year of VOCs from
all products manufactured in the batch process train are exempt from
the control requirements in this rule. Any unit operations and batch
process trains with an average flow rate (the lower the flow rate the
lower the control cost) below the value calculated by the applicability
equations in this rule must reduce uncontrolled VOC emissions from such
unit operations and process trains by at least 90 percent or to 20
parts per million volume. This rule is based on and consistent with the
1994 ``Control of VOC Emissions from Batch Process Alternative Control
Techniques (ACT)'' document.

(M) 326 IAC 8-20 Industrial Wastewater

    This new rule applies to sources that have potential VOC emissions
greater than or equal to 100 tons per year from industrial wastewater
operations and any other non-CTG source category without a final CTG,
such as batch operations. The VOC emissions from industrial wastewater
collection and treatment processes evaporate from the waste stream when
exposed to the ambient air. Consequently, the VOC RACT requirements
consist of implementing technologies and work practice standards that
combine to substantially suppress the exposure of the VOC-laden waste
stream to the ambient air. More specifically, the requirements include:
    (1) Oil-water separators must be provided with either a floating
cover equipped with seals or a fixed cover, equipped with a closed vent
system vented to a pollution control device;
    (2) All sewer lines must be completely enclosed so that no liquid
surface is exposed to the air;
    (3) All process drains must be equipped with water seal controls or
a cover or vented to a process or through a closed vent system to a
control device; and
    (4) All junction boxes must be equipped with a tightly fitting
solid cover or vented to a process or to a control device.
    This rule is based on and consistent with EPA's 1992 draft CTG
``Control of VOC Emissions from Industrial Wastewater'' and EPA's 1994
``Industrial Wastewater ACT.''

(N) 326 IAC 8-21 Aerospace Manufacturing and Rework Operations

    This new rule applies to coating application and cleaning at
aerospace manufacturing and rework operations at sources that have the
potential to emit 25 tons of VOC per year from all coating and cleaning
operations combined. This rule consists primarily of aerospace coating
limits for primers, topcoats, chemical milling maskants and for a
number of specialty coatings, including adhesives and maskants. There
are also application equipment standards, including the use of HVLP
spray equipment and other application methods equivalent to or better
than HVLP as well as solvent cleaning work practices. Air pollution
control equipment with an overall capture and control efficiency of 81
percent can be used as an alternative to the VOC content coating
limits. This rule is based on and consistent with EPA's 1997 CTG
``Control of VOC Emissions from Coating Operations at Aerospace
Manufacturing and Rework Operations.''

(O) Negative Declaration for Fiberglass Boat Manufacturing Materials

    On May 26, 2009, Indiana submitted a Negative Declaration for
Fiberglass Boat Manufacturing Materials. This source category is the
subject of a 2008 CTG. IDEM has determined that there are no subject
sources (i.e., that construct the molds or tools that are used to build
the separate parts of fiberglass boats) from this source category in
Lake and Porter Counties. In order to determine if any such sources
were located within the two-county area, IDEM reviewed the following
sources of information:
    (1) Indiana's inventory of sources in Lake and Porter Counties
subject to the Boat Manufacturing National Emission Standards for
Hazardous Air Pollutants.
    (2) The emission inventory database that identifies companies and
emission units within the two county area.
    (3) Indiana's Computer Assisted Approval and Tracking System that
identifies companies within Lake and Porter Counties that are
registered in IDEM's permitting system.
    (4) The Harris Directory that provides Standard Industrial
Classification information for Boat Building and Repairing.
    (5) Two business search engines, Websters Online and Manta.
    After reviewing all of the above sources of information, Indiana
did not find any company that would be subject to the 2008 CTG
``Control Technique Guidelines for Fiberglass Boat Manufacturing
Materials.'' EPA agrees that IDEM did a thorough evaluation of whether
there were any potentially subject sources and is proposing to approve
the negative declaration for this source category.

V. Statutory and Executive Order Reviews

    Under the 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 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 Act; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: October 7, 2009.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. E9-24925 Filed 10-15-09; 8:45 am]

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