[Federal Register Volume 88, Number 50 (Wednesday, March 15, 2023)]
[Proposed Rules]
[Pages 15940-15941]
[FR Doc No: 2023-05237]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 50

[EPA-HQ-OAR-2018-0279; FRL-9545-04-OAR]

Release of Draft Policy Assessment for the Reconsideration of the
Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Draft policy assessment; notice of availability.

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SUMMARY: On or about March 1, 2023, the Environmental Protection Agency
(EPA) is making available to the public a revised draft document
titled, Policy Assessment for the Reconsideration of the Ozone National
Ambient Air Quality Standards, External Review Draft Version 2 (Draft
PA). This draft document was prepared as a part of the current
reconsideration of the 2020 final decision on the national ambient air
quality standards (NAAQS) for ozone (O3). When final, the PA
is intended to ``bridge the gap'' between the scientific and technical
information assessed in the 2020 Integrated Science Assessment for
Ozone and Related Photochemical Oxidants (2020 ISA), as well as any air
quality, exposure and risk analyses available in the reconsideration,
and the judgments required of the Administrator. The primary and
secondary O3 NAAQS are set to protect the public health and
the public welfare from O3 and other photochemical oxidants
in ambient air.

DATES: Comments must be received on or before April 14, 2023.

ADDRESSES: You may send comments on the draft PA, identified by Docket
ID No. EPA-HQ-OAR-2018-0279, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Air and Radiation Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal
Holidays).
    Instructions: All submissions received must include the Docket ID
No. for this notice. Comments received may be posted without change to
https://www.regulations.gov, including any personal information
provided. For detailed instructions on sending comments, see the
SUPPLEMENTARY INFORMATION section of this document. The draft document
described here will be available on the EPA's website at https://www.epa.gov/naaqs/ozone-o3-air-quality-standards. The documents will be
accessible under ``Policy Assessments'' for the current review.

FOR FURTHER INFORMATION CONTACT: Leigh Meyer, Office of Air Quality
Planning and Standards, (Mail Code C504-06), U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711; telephone number:
919-541-5587, fax number:<PHONE_NUMBER>; or email: [email protected],
or Mary Hutson, Office of Air Quality Planning and Standards, (Mail
Code C504-06), U.S. Environmental Protection Agency, Research Triangle
Park, NC 27711; telephone number:<PHONE_NUMBER>, fax number: 919-541-
0237; or email: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-
0279, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit to
EPA's docket at https://www.regulations.gov any information you
consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. The EPA will generally not consider comments or comment

contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.

II. Information About the Documents

    Two sections of the Clean Air Act (CAA or the Act) govern the
establishment and revision of the NAAQS. Section 108 directs the
Administrator to identify and list certain air pollutants and then
issue ``air quality criteria'' for those pollutants. The air quality
criteria are to ``accurately reflect the latest scientific knowledge
useful in indicating the kind and extent of all identifiable effects on
public health or welfare which may be expected from the presence of
such pollutant in the ambient air . . .'' (CAA section 108(a)(2)).
Under section 109 of the Act, the EPA is then to establish primary
(health-based) and secondary (welfare-based) NAAQS for each pollutant
for which the EPA has issued air quality criteria. Section 109(d)(1) of
the Act requires periodic review and, if appropriate, revision of
existing air quality criteria. Revised air quality criteria are to
reflect advances in scientific knowledge on the effects of the
pollutant on public health and welfare. Under the same provision, the
EPA is also to periodically review and, if appropriate, revise the
NAAQS, based on the revised air quality criteria.
    The Act additionally requires appointment of an independent
scientific review committee that is to periodically review the existing
air quality criteria and NAAQS and to recommend any new standards and
revisions of existing criteria and standards as may be appropriate (CAA
section 109(d)(2)(A)-(B)). Since the early 1980s, the requirement for
an independent scientific review committee has been fulfilled by the
Clean Air Scientific Advisory Committee (CASAC).
    In December 2020, the EPA announced its decision to retain the
primary and secondary O3 standards, without revision (85 FR
87256, December 31, 2020). On October 29, 2021, the Agency announced
its decision to reconsider the 2020 O3 NAAQS final
action.\1\ In its announcement of the reconsideration, the Agency
explained that it would reconsider the 2020 decision to retain 2015
standards based on the existing scientific record. In support of the
reconsideration, the EPA is developing an updated PA. The PA, when
final, serves to ``bridge the gap'' between the scientific and
technical information in the 2020 ISA and any air quality, exposure and
risk analyses available in the reconsideration, and the judgements
required of the Administrator.
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    \1\ The press release for this announcement is available at
https://www.epa.gov/ground-level-ozone-pollution/epa-reconsider-previous-administrations-decision-retain-2015-ozone.
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    In April 2022, the EPA made available to the public and to the
CASAC Ozone Review Panel a prior version of this draft PA. After
receiving a briefing from the EPA on the draft document (87 FR 19501,
April 4, 2022), the Panel issued a memo indicating that the Panel would
pause its review to deliberate on whether a fuller discussion of the
science was needed prior to its review of the draft PA.\2\ Following
that deliberation, the Panel engaged in a fuller discussion of the
scientific information at a number of public meetings (87 FR 41309,
July 12, 2022; 87 FR 60394, October 5, 2022). Based on this discussion,
the CASAC determined ``that the existing scientific evidence summarized
in the 2020 ISA provides a scientifically sound foundation for the
Agency's reconsideration of the 2020 Ozone NAAQS decision'' and that it
was not recommending that the 2020 ISA be reopened or revised.\3\ The
CASAC's letter to the Agency regarding its review of the 2020 ISA
included comments that referenced the PA. Consideration of those
comments led to the development of this second version of the draft PA
for the reconsideration, which is announced in this notice of
availability. The draft PA largely builds upon the information
presented in the 2020 ISA, the 2020 PA and additional analyses that
informed the 2020 decision. This draft PA will be available on or about
March 1, 2023, on the EPA's website at https://www.epa.gov/naaqs/ozone-o3-air-quality-standards. The EPA is soliciting advice and
recommendations from the CASAC by means of a review of this draft
document in an upcoming public meeting of the CASAC. Information about
this public meeting, including the dates and location, was published as
a separate notice in the Federal Register on February 13, 2023 (88 FR
9275). Following the CASAC meeting, the EPA will consider comments
received from the CASAC and the public in preparing the final PA.
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    \2\ May 13, 2022, letter from Elizabeth A. Sheppard, Chair,
Clean Air Scientific Advisory Committee, to CASAC Ozone Review Panel
Members. Re: CASAC Ozone Review Panel Meeting. Available at: https://casac.epa.gov/ords/sab/f?p=105:19:17341438189034:::19:P19_ID:972#materials.
    \3\ November 22, 2022, letter from Elizabeth A. Sheppard, Chair,
Clean Air Scientific Advisory Committee, to Administrator Michael S.
Regan. Re: CASAC Review of the EPA's Integrated Science Assessment
(ISA) for Ozone and Related Photochemical Oxidants (Final Report--
April 2020). EPA-CASAC-23-001. Available at: https://casac.epa.gov/ords/sab/f?p=105:18:8476900499267:::RP,18:P18_ID:2614.
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    The draft document briefly described above does not represent and
should not be construed to represent any final EPA policy, viewpoint,
or determination. The EPA will consider any public comments submitted
in response to this notice when revising the document.

Panagiotis Tsirigotis,
Director, Office of Air Quality Planning and Standards.
[FR Doc. 2023-05237 Filed 3-14-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 171 (Tuesday, September 6, 2022)]
[Rules and Regulations]
[Pages 54385-54390]
[FR Doc No: 2022-19154]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 83

[Docket No. USCG-2022-0071]
RIN 1625-AC81

State Enforcement of Inland Navigation Rules

AGENCY: Coast Guard, DHS.

ACTION: Interim rule and request for comment.

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SUMMARY: The Coast Guard is issuing this interim rule to remove an
incorrect statement about field preemption of State or local
regulations regarding inland navigation. The incorrect language was
added in a 2014 rulemaking, and the error was recently discovered. By
removing the language, this rule clarifies the ability of States to
regulate inland navigation as they have historically done. This rule
does not require States to take any action.

DATES: This interim rule is effective September 6, 2022. Comments and
related material must be received by the Coast Guard on or before
December 5, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2022-0071 using the Federal Decision Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: For information about this document
call or email Jeffrey Decker, Coast Guard Office of Auxiliary and
Boating Safety (CG-BSX); telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Background
IV. Discussion of the Rule
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment
VI. Public Participation and Request for Comments

I. Abbreviations

APA Administrative Procedure Act
COLREGS International Regulations for Prevention of Collisions at
Sea, 1972
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
Inland Rules Inland Navigation Rules
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec.  Section

SFRBT Sport Fish Restoration and Boating Trust
RFA Regulatory Flexibility Act
U.S.C. United States Code

II. Basis and Purpose, and Regulatory History

    Section 303 of the Coast Guard and Maritime Transportation Act of
2004,\1\ ``Inland Navigation Rules Promulgation Authority,'' authorizes
the Secretary of the Department in which the Coast Guard is operating
to issue inland navigation regulations and technical annexes for all
vessels on the inland waters of the United States. The goal of such
regulations is to be as consistent as possible with the corresponding
International Regulations. The Secretary delegated this authority to
the Coast Guard in Department of Homeland Security (DHS) Delegation
00170.1, Revision No. 01.2, paragraph (II)(92). The purpose of this
interim rule is to correct an error in Title 33 of the Code of Federal
Regulations (CFR) part 83, specifically in paragraph (a) of Sec.
83.01, about the preemptive effect of the navigation regulations upon
State or local regulation.
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    \1\ Public Law 108-293, 118 Stat. 1028, Aug. 9, 2004. Section
303 is codified at 33 U.S.C. 2071.
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    The Coast Guard is issuing this rule without prior public notice
and opportunity to comment, based on two findings under the ``good
cause'' provision of the Administrative Procedure Act (APA). The APA's
notice and comment requirements do not apply when the agency, for good
cause, finds that the notice and comment process is ``impracticable,
unnecessary, or contrary to the public interest.'' \2\ Here, prior
notice and comment are unnecessary and contrary to the public interest
because the Coast Guard is resolving an error it introduced to the
Inland Navigation Rules (hereafter ``Inland Rules'') through a 2014
amendment. As explained below, the language being removed is an
incorrect statement regarding the preemptive effect of regulations.
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    \2\ 5 U.S.C. 553(b)(B).
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    The Coast Guard cannot leave the incorrect preemption statement in
place, so public comment on it, or on its removal, is unnecessary. The
statement was made in error. Leaving it in place could be seen as
leaving the public without the protection of any meaningful enforcement
of state and local navigation safety laws. No replacement language is
being inserted, and no entity's rights are harmed by the removal. The
rule requires no action by either the States or the public.
    Further, giving the public prior notice of the correction is
contrary to the public interest and could even cause harm. As written,
the incorrect language purports to prevent States from adopting their
own navigational safety regulations. The insertion of this incorrect
language in 2014 had no impact, however, on day-to-day enforcement by
States. State law enforcement units conduct nearly all the enforcement
of navigation rules on inland waterways. An announcement in the Federal
Register that States cannot do so would undermine the legitimacy of
safety enforcement in the time between the notice of proposed
rulemaking (NPRM) and the final rule. Violations of State and local
navigation rules, such as excessive speed and failing to maintain a
proper lookout, comprise four of the top five causal factors in
recreational boating accidents.\3\ Publishing an NPRM, which could
create the impression that State marine patrols lack the authority to
enforce State and local navigational safety laws, would undermine their
purpose and could reduce safety on inland waters.
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    \3\ ``2020 Recreational Boating Statistics,'' Commandant
Publication P16754.34 (June 29, 2021) available in the docket.
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    Therefore, the Coast Guard also finds good cause under Title 5 of
the United States Code (U.S.C.) Section 553(d) to make this interim
rule effective immediately on publication. In situations where prior
comment is contrary to the public interest, the Coast Guard's practice
is to provide a comment period after issuing the rule if doing so will
not interfere with the purpose and execution of that rule. We are
providing a 90-day period for public comment and will consider all
comments received during that time.

III. Background

    The Inland Rules are a special body of rules defined by the
International Regulations for Prevention of Collisions at Sea, 1972,
often referred to as ``COLREGS'' or ``International Rules.'' The
President proclaimed the International Rules as United States law in
accordance with the International Navigational Rules Act of 1977.\4\
Congress subsequently set about harmonizing the inland navigation rules
that remained in use within the United States, including the Western
Rivers Rules, Great Lakes Rules, the old Inland Rules, and parts of the
Motorboat Act of 1940. These efforts culminated in the Inland
Navigational Rules Act of 1980, which codified Rules 1 through 38,
considered the main body of the Inland Rules.\5\
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    \4\ Public Law 95-75, 91 Stat. 308 (July 27, 1977).
    \5\ Public Law 96-591, 94 Stat. 3415 (Dec. 24, 1980).
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    Neither the International Navigational Rules Act of 1977 nor the
Inland Navigational Rules Act of 1980 contained express language
regarding the preemption of State law. A 2009 Sea Tow study (available
in the docket where indicated under the ADDRESSES portion of the
preamble) found that ``each State and Territory has its own version of
navigation rules recorded in different locations in State law.'' The
study further found that 37 of the 56 States and Territories had either
adopted the International Rules or Inland Rules, or enacted laws
requiring conformity with them. In April 2010, in accordance with
Congressional authorization, the Coast Guard issued regulations
effectively transferring the Inland Rules from United States Code to
the Code of Federal Regulations.\6\ The 2010 rule made no specific
statements about the preemptive effect of the Inland Rules. The section
of the preamble that discussed federalism said that there were no
implications for federalism under Executive Order 13132, which
addresses preemption.
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    \6\ 75 FR 19544, April 15, 2010; 33 CFR parts 83-90.
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    In 2012, the Coast Guard proposed routine amendments to the Inland
Rules to retain consistency with COLREGS amendments approved by the
International Maritime Organization.\7\ At that time, the Coast Guard
proposed to add a statement of preemptive effect to 33 CFR 83.01(a) in
accordance with a 2009 Presidential memorandum regarding preemption.\8\
A commenter asked the Coast Guard to clarify that the proposed
preemption language referred to field preemption rather than conflict
preemption, and in the 2014 final rule, the Coast Guard said that it
did.\9\ This erroneous statement has recently led to questions about
whether State and local governments may regulate navigation on State
waters where the Inland Navigation Rules apply. Some State agencies use
State statutes to enforce violations outside the scope of the Inland
Navigation Rules. These include prohibitions on negligent operations.
Others have continued to patrol and enforce State boating violations
under State navigation rules.
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    \7\ 77 FR 52175, August 28, 2012.
    \8\ ``Presidential Memorandum Regarding Preemption,'' May 20,
2009, available at Presidential Memorandum Regarding Preemption
[verbar] whitehouse.gov (archives.gov) (last visited Jan. 19, 2022).
    \9\ 79 FR 37897, 37900, August 1, 2014.

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    Field preemption means that State and local governments may not
regulate in that field at all. This is distinct from conflict
preemption, which allows State and local government to regulate so long
as their actions do not conflict with Federal regulations. Without
express guidance from Congress, conflict preemption is the foundation
for the relationship between the laws of the Federal government and
those of the States. See Arizona v. United States, 567 U.S. 387 (2012).
    The 2014 preemption language was not viewed as a change in
authority, and State and local enforcement continued as before. In
2019, however, the Coast Guard learned that a boater had argued that
the preemption statement in 33 CFR 83.01(a) meant that State law
enforcement could not charge a violation of State navigation rules that
were within the field of the Coast Guard's Inland Rules.
    The Coast Guard had informal discussions with State boating
administrators about the meaning of the language, and, in 2021, the
National Association of State Boating Law Administrators asked the
Coast Guard to clarify the issue. The Coast Guard revisited the
preemption language and determined that the 2014 statement of field
preemption is incorrect and undermines States' efforts to enhance
navigational safety. In particular, the Coast Guard determined that
Congress is not only aware of States' broad efforts to regulate in the
area of boating safety, but also that Congress, in part, funds these
efforts through the Sport Fish Restoration and Boating Trust (SFRBT)
Fund,\10\ which is administered by the Coast Guard. The SFRBT Fund
provides funding to States to enforce State boating laws and
investigate boating accidents and fatalities, many of which are the
direct result of navigation rules violations.
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    \10\ 46 U.S.C. Ch. 131: RECREATIONAL BOATING SAFETY (house.gov).
See Section 13107: Authorization of Appropriations. last viewed
June, 2022.
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IV. Discussion of the Rule

    This rule removes the final sentence of 33 CFR 83.01(a), which
states that regulations in 33 CFR parts 83 through 90 have preemptive
effect over State or local regulation within the same field. Removing
the final sentence clarifies the original statutory language of Rule 1.
This rule does not insert any other statement about preemption. This is
consistent with prior versions of the Inland Rules, which were also
silent on the subject and were historically viewed as conflict
preemptive.
    Generally, under the Supremacy Clause of the U.S. Constitution,
States are precluded from regulating conduct in a certain field (i.e.,
field preemption applies) where a statute contains an express
preemption provision, or when Congress has determined that conduct in a
particular field must be regulated by its exclusive governance.
Arizona, 567 U.S. at 399. ``The intent to displace state law altogether
can be inferred from a framework of regulation so pervasive . . . that
Congress left no room for the States to supplement it, or where there
is a federal interest . . . so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same subject.''
Id. (internal quotations omitted).
    In the case of inland navigation, nothing in the relevant statutory
enactments by Congress has ever expressly stated or otherwise implied
that the States are preempted from regulating in the field. Rather, the
appropriate analysis is one of conflict preemption. Under conflict
preemption, State law is preempted by Federal law only when compliance
with both the State law and a Federal law is impossible, or the State
law stands as an obstacle to the accomplishment and execution of the
full purposes and objective of Congress. See Arizona, 567 U.S. 387.
State regulation in the field of inland navigation is clearly evidenced
by the longstanding existence of many State navigation laws and rules
around the country, and by Congress' demonstrated awareness of such
laws and rules and its lack of action to preempt them.
    State and local marine patrols play a significant role in ensuring
safety on our waterways by enforcing navigational safety rules. State
and local marine patrols outnumber Coast Guard patrols and conduct
almost all the on-water safety enforcement interactions with the
boating public. Operator inattention, improper lookout, unsafe speed,
and other navigation rules violations, such as operating at night
without navigation lights, are contributing factors in many boating
accidents. The Coast Guard fully supports the efforts of State and
local marine patrols to prevent unsafe operations in accordance with
the Inland Rules. While Congress has legislated in this area, it has
not created a pervasive or dominant framework that indicates any intent
to preclude states from regulating or enforcing their own laws and
rules. Accordingly, state and local rules are preempted only in the
instances described above: where compliance with both a State
requirement and a federal requirement is impossible, or where the State
law stands as an obstacle to the accomplishment and execution of the
full purposes and objective of Congress.
    We believe that most vessel operators, and State boating law
administrators, assigned no meaning to the 2014 preemption language.
Their ongoing operations will be unchanged by this interim rule.
Removing the incorrect language about field preemption does not alter
the obligations of the boating public. They have always been required
to comply with the Inland Rules in 33 CFR parts 83 through 90. It also
does not impose obligations on State and local government: no State or
local government is required to enact its own navigation rules, and
that will not change with removal of this language. This interim rule
merely allows State and local governments to continue to regulate local
navigation in a way that is consistent with longstanding practice.

V. Regulatory Analyses

    We developed this interim rule after considering numerous statutes
and Executive orders related to rulemaking. Below, we summarize our
analyses based on these statutes or Executive orders.

A. Regulatory Planning and Review

             Table 1--Summary of Impacts of the Interim Rule
------------------------------------------------------------------------
             Category                              Summary
------------------------------------------------------------------------
Applicability.....................  The interim rule will remove the
                                     final sentence in 33 CFR 83.01(a),
                                     ``The regulations in this
                                     subchapter (subchapter E, 33 CFR
                                     parts 83 through 90) have
                                     preemptive effect over State or
                                     local regulation within the same
                                     field.''
Affected Population...............  State and local Governments and
                                     vessel operators on the Inland
                                     Waterways.
Costs.............................  No estimated costs.

Unquantified Benefits.............  Removes incorrect regulatory
                                     language. This removal provides
                                     regulatory clarity to State and
                                     local governments to enforce their
                                     own regulations. The regulatory
                                     clarity will ensure the continued
                                     safety of the boating public.
------------------------------------------------------------------------

    Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
    The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. A regulatory analysis follows.
    This interim rule removes incorrect language from 33 CFR 83.01(a).
This rule will clarify that State and local governments are free to
continue to regulate navigation consistent with longstanding practice.
We believe that most vessel operators, and many local governments, were
unaware of the 2014 error and that their ongoing operations,
consequently, will be unchanged by this rule. No State has changed its
inland navigation rules since 2014, and our conversations with state
regulators suggest they did not understand the preemption language to
alter their enforcement ability. Other than the 2019 challenge
mentioned earlier, we know of no boaters asserting that the preemption
language prevents State enforcement. Removing the incorrect language
about field preemption does not alter the obligations of the boating
public, who have always been required to comply with the Inland Rules
in 33 CFR parts 83 through 90. This rule does not impose any additional
burdens on vessel operators or impose obligations on State and local
government: no State or local government is required to enact its own
navigation rules. This rule will clarify that State and local
governments are free to continue to regulate local navigation
consistent with longstanding practice. Based on our analysis, this rule
will not impose any new requirements or regulatory costs on vessel
operators, or on State and local governments. Many State and local
governments were already enforcing navigation safety regulations, and
the boating public has always been required to comply with the Inland
Rules.
Affected Population
    This rule will affect all State and local navigational law
enforcement patrols whose laws or regulations were purported to have
been preempted by 33 CFR 83.01(a).
    Although vessel operators on the inland waterways are a part of the
affected population of this interim rule, they will not incur any new
regulatory costs because they were already required by Federal law to
comply with State and local navigation rules. This rule creates legal
clarity about the States' ability to enforce their own navigational
rules, which will maintain safe boating conditions for vessel
operators. This interim rule only confirms the States' ability to
retain and enforce navigational safety laws within the field of the
Inland Rules. We are not aware that any State altered its navigational
rules in response to the 2014 preemption statement, so we do not expect
any State will alter its navigational rules in response to the
statement's removal.
Cost Analysis of the Interim Rule
    This interim rule will not impose any new costs on vessel
operators, or on State and local governments. State and local
governments were already enforcing State and local regulations, and the
boating public has always been required to comply with the Inland
Rules. The economic baseline is that all potentially affected vessel
operators and States are already in compliance with State and local
rules, and therefore, will not incur any costs from this rule.
Benefits Analysis of the Interim Rule
    The primary benefit of the interim rule is to clarify the Inland
navigation rules by removing the incorrect regulatory language and
therefore removing any potential question about whether States and
local jurisdictions can enforce navigational rules on vessel operators
who navigate the inland waterways. Without this interim rule, the
regulatory text applied as written would purport to prevent State and
local marine patrols from enforcing the navigation laws or regulations.
Continued State and local enforcement of State and local navigational
safety rules is essential, because four of the top five factors in
recreational boating accidents, as reported in the 2020 Recreational
Boating Statistics (Commandant Publication P16754.34),\11\ involve
violations of navigation rules. Further, this interim rule will clarify
that field preemption was never intended to be a valid legal defense in
State enforcement proceedings.
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    \11\ Recreational-Boating-Statistics-2020.pdf
(menlosecurity.com), last viewed March, 2022.
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Alternatives Considered
    1. No action. The Coast Guard could leave the field preemption
statement in 33 CFR 83.01(a). However, the Coast Guard's current
regulatory statement, that the Inland Rules are field preemptive, is
legally incorrect. Moreover, if applied as written, it would mean that
the thousands of State and local marine patrols, often working
cooperatively with the Coast Guard, have no legal authority to enforce
their own navigation laws. If applied as written, the 2014 preemption
language would constrain the authority of State and local marine
patrols, effectively reducing navigational safety. This alternative, to
retain the existing regulatory language in 33 CFR part 83.01(a), would
expose vessels in the affected populations to an operational
environment that has reduced navigational safety. The decrease in
safety would increase the risk of future boating accidents. This
alternative would not impose costs on State and local governments. This
alternative would also undermine Congressional intent of supporting
such State regulation via the SFRBT Fund.
    2. Provide notice and opportunity to comment prior to issuing an
enforceable rule. The Coast Guard considered providing public notice
and opportunity to comment before issuing the rule. Publication of an
NPRM is our preferred method in most circumstances and could provide an
opportunity for the Coast Guard to obtain new insights about the
project in advance of issuing an effective rule. The drawback to
issuing an NPRM for this action is that doing so could create a public
safety issue. Publication of an NPRM would

create confusion about State and local authority to enforce the Inland
Rules and could lead to unsafe and otherwise prohibited conduct during
the period in which vessel operators believe that States are unable to
enforce their own navigation rules. Hence, this alternative would
increase risk of accidents. This may also result in litigation between
boaters and States if waterway incidents occur, with associated legal
costs.
    3. Amend 33 CFR 83.01(a) by issuing an interim rule that is
immediately effective, followed by public comment period and final
rule. This is the preferred alternative. The Coast Guard will remove
the reference to field preemption in 33 CFR 83.01(a) without requesting
public comment first. Instead, the Coast Guard invites the public to
comment on the interim rule and will respond to those comments in a
subsequent final rule. We present the costs and benefits of this
alternative in this preamble.

B. Small Entities

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, we
have considered whether this rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
    There are two affected populations for this interim rule, States or
State Governments and vessel operators on the inland waterways. The
North American Industry Classification System (NAICS) codes list State
governments under the classification of ``Public Administration'' with
a NAICS sector code of ``92.'' Although State governments would be
affected by this interim rule, they are not considered small entities
under the RFA because they have populations of 50,000 or more. Local
governments and vessel operators may be small entities under the RFA;
however, this interim rule does not impose any new regulatory
requirements or costs on them. As a result, there are no small entities
affected by this interim rule. Our analysis shows that this interim
rule will not impose any regulatory costs on States and recreational
boaters. The primary benefit of this interim rule is to clarify
existing regulatory text; therefore, the Coast Guard certifies under 5
U.S.C. 605(b) that this interim rule will not have a significant
economic impact on a substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we offer to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).

D. Collection of Information

    This rule interim rule calls for no new or revised collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

E. Federalism

    A rule has implications for federalism under Executive Order 13132
(Federalism) if it has a substantial direct effect on States, on the
relationship between the National government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We analyzed this interim rule under Executive Order 13132
and determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132. Our analysis follows.
    States may not regulate in categories reserved by Congress for the
exclusive regulation by the Coast Guard. For example, the categories
covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction,
alteration, repair, maintenance, operation, equipping, personnel
qualification, and manning of vessels), as well as the reporting of
casualties and any other category in which Congress intended the Coast
Guard to be the sole source of a vessel's obligations, are within the
field foreclosed from regulation by the States. See United States v.
Locke, 529 U.S. 89 (2000). This interim rule, however, is correcting a
misstatement in the Inland Rules to clarify that the Inland Rules are
not field preemptive of State regulation of categories touching upon
navigational safety. Therefore, this rule is consistent with the
fundamental federalism principles and preemption requirements described
in Executive Order 13132.
    While it is well settled that States may not regulate in categories
in which Congress intended the Coast Guard to be the sole source of a
vessel's obligations, the Coast Guard recognizes the key role that
State and local governments may have in making regulatory
determinations. Additionally, for rules with federalism implications
and preemptive effect, Executive Order 13132 specifically directs
agencies to consult with State and local governments during the
rulemaking process. If you believe this rule has implications for
federalism under Executive Order 13132, please call or email the person
listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

F. Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Although this rule will not result
in such expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

G. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630 (Governmental
Actions and Interference with Constitutionally Protected Property
Rights).

H. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988 (Civil Justice Reform) to minimize litigation,
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this rule under Executive Order 13045 (Protection
of Children from Environmental Health Risks and Safety Risks). This
rule is not an economically significant rule and will not create an
environmental risk to health or risk to safety that might
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175 (Consultation and Coordination

with Indian Tribal Governments), because it will not have a substantial
direct effect on one or more Indian tribes, on the relationship between
the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
tribes.

K. Energy Effects

    We have analyzed this rule under Executive Order 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use). We have determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' under Executive Order 12866 and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

L. Technical Standards

    The National Technology Transfer and Advancement Act, codified as a
note to 15 U.S.C. 272, directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through OMB, with an explanation of why using these standards
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are developed or adopted by voluntary consensus standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01, Rev. 1, associated implementing
instructions, and Environmental Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
a determination that this action is one of a category of actions that
do not individually or cumulatively have a significant effect on the
human environment. A Record of Environmental Consideration supporting
this determination is available in the docket. For instructions on
locating the docket, see the ADDRESSES section of this preamble. This
rule meets the criteria for categorical exclusions A3 and L54 in
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev 1.
Categorical exclusion A3 pertains to ``promulgation of rules of a
strictly administrative or procedural nature;'' and those that
``interpret or amend an existing regulation without changing its
environmental effect.'' Categorical exclusion L54 pertains to
regulations that are editorial or procedural. This rule is a standalone
action to delete an incorrect statement about field preemption of State
or local regulations on the topic of inland navigation, the legal
implications of which were recently recognized. This rule is not part
of a larger action, and it will not result in significant impacts to
the human environment. Removing the incorrect language will affirm the
ability of States to legally regulate inland navigation as they long
have done, well before the Inland Rules were established.

VI. Public Participation and Request for Comments

    The Coast Guard views public participation as essential to
effective rulemaking, and will consider all comments and material
received on this interim rule during the comment period. If you submit
a comment, please include the docket number for this interim rule,
indicate the specific section of this document to which each comment
applies, and provide a reason for each suggestion or recommendation.
    Submitting comments. We encourage you to submit comments through
the Federal Decision Making Portal at https://www.regulations.gov. To
do so, go to https://www.regulations.gov, type USCG-2022-0071 in the
search box, and click ``Search.'' Next, look for this document in the
Search Results column, and click on it. Then click on the Comment
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER
INFORMATION CONTACT section of this interim rule for alternate
instructions.
    Viewing material in the docket. To view documents mentioned in this
interim rule as being available in the docket, find the docket as
described in the previous paragraph, and then select ``Supporting &
Related Material'' in the Document Type column. Public comments will
also be placed in our online docket and can be viewed by following
instructions on the https://www.regulations.gov Frequently Asked
Questions web page. We review all comments received, but we will only
post comments that address the topic of the interim rule. We may choose
not to post off-topic, inappropriate, or duplicate comments that we
receive.
    Personal information. We accept anonymous comments. Comments we
post to https://www.regulations.gov will include any personal
information you have provided. For more about privacy and submissions
to the docket in response to this document, see DHS's eRulemaking
System of Records notice (85 FR 14226, March 11, 2020).
    Public meeting. We are not planning to hold a public meeting, but
we will consider doing so if we determine from public comments that a
meeting would be helpful. We would issue a separate Federal Register
notice to announce the date, time, and location of such a meeting.

List of Subjects in 33 CFR Part 83

    Navigation (water); Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 83 as follows:

PART 83--NAVIGATION RULES

0
1. The authority citation for 33 CFR part 83 is revised to read as
follows:

    Authority: 33 U.S.C. 2071; DHS Delegation No. 00170.1, Revision
No. 01.2.

0
2. Amend Sec.  83.01 by revising paragraph (a) to read as follows:

Sec.  83.01   Application (Rule 1).

    (a) These Rules apply to all vessels upon the inland waters of the
United States, and to vessels of the United States on the Canadian
waters of the Great Lakes to the extent that there is no conflict with
Canadian law.
* * * * *

    Dated: August 31, 2022.
W.R. Arguin,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Prevention
Policy.
[FR Doc. 2022-19154 Filed 9-2-22; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Notices]
[Pages 38741-38743]
[FR Doc No: 2013-15363]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69831; File No. TP 13-03]

Order Granting Limited Exemptions From Exchange Act Rule 10b-17
and Rules 101 and 102 of Regulation M to ALPS ETF Trust, the
VelocityShares Tail Risk Hedged Large Cap ETF, and the VelocityShares
Volatility Hedged Large Cap ETF

June 21, 2013.
    By letter dated June 21, 2013 (the ``Letter''), as supplemented by
conversations with the staff of the Division of Trading and Markets,
counsel for ALPS ETF Trust (the ``Trust'') on behalf of the Trust, the
VelocityShares Tail Risk Hedged Large Cap ETF and the VelocityShares
Volatility Hedged Large Cap ETF (each a ``Fund'' and, collectively, the
``Funds''), any national securities exchange on or through which shares
issued by the Funds (``Shares'') may subsequently trade, ALPS
Distributors, Inc., and persons or entities engaging in transactions in
Shares (collectively, the ``Requestors'') requested exemptions, or
interpretive or no-action relief, from Rule 10b-17 of the Securities
Exchange Act of 1934, as amended (``Exchange Act'') and Rules 101 and
102 of Regulation M in connection with secondary market transactions in
Shares and the creation or redemption of aggregations of Shares of at
least 50,000 shares (``Creation Units'').
    The Trust is registered with the Commission under the Investment
Company Act of 1940, as amended (``1940 Act''), as an open-end
management investment company. Each Fund seeks to track the performance
of a particular underlying index (``Index''), which for each Fund is
comprised of shares of exchange traded products (``ETPs''). Each Fund's
underlying index reflects the performance of a portfolio consisting of
an exposure to a large cap equity portfolio, consisting of three
underlying ETFs which track the S&P 500 index (``Underlying Large-Cap
ETFs'') and a volatility strategy to hedge ``tail risk'' events (which
are market events that occur rarely but may have severe consequences
when they do occur), consisting of two underlying ETFs which reflect
leveraged or inverse positions on the S&P 500 VIX Short-Term Futures
Index (``Underlying Volatility ETFs''). The underlying index, at each
monthly rebalance, consists of an 85% allocation to the Underlying
Large-Cap ETFs and a 15% allocation to the Underlying Volatility ETFs.
The Funds intend to operate as ``ETFs of ETFs'' by seeking to track the
performance of the respective underlying Index by investing at least
80% of their assets in the ETPs that comprise each Index. Each Fund
also intends to enter into swap agreements designed to provide exposure
to (a) the Underlying Volatility ETFs and/or (b) leveraged and/or
inverse positions on the S&P 500 VIX Short-Term Futures Index directly.
Except for the fact that the Funds will operate as ETFs of ETFs and
intend to enter into swaps to obtain the leveraged and/or inverse
exposure to the Underlying Volatility ETFs and/or the S&P 500 VIX
Short-Term Futures Index, the Funds will operate in a manner identical
to the ETPs that comprise each Index.
    The Requestors represent, among other things, the following:
     Shares of the Funds will be issued by the Trust, an open-
end management investment company that is registered with the
Commission;
     The Trust will continuously redeem Creation Units at net
asset value (``NAV'') and the secondary market price of the Shares
should not vary substantially from the NAV of such Shares;
     Shares of the Funds will be listed and traded on the NYSE
Arca (the ``Exchange'') or other exchange in accordance with exchange
listing standards that are, or will become, effective pursuant to
Section 19(b) of the Exchange Act;
     All ETPs that are invested in by the Funds will meet all
conditions set forth in a relevant class relief letter,\1\ will have
received individual relief from the Commission, or will be able to rely
on individual relief even though they are not named parties;
---------------------------------------------------------------------------

    \1\ Letter from Catherine McGuire, Esq., Chief Counsel, Division
of Market Regulation, to the Securities Industry Association
Derivative Products Committee (November 21, 2005); Letter from
Racquel L. Russell, Branch Chief, Division of Market Regulation, to
George T. Simon, Esq., Foley & Lardner LLP (June 21, 2006); Letter
from James A. Brigagliano, Acting Associate Director, Division of
Market Regulation, to Stuart M. Strauss, Esq., Clifford Chance US
LLP (October 24, 2006); Letter from James A. Brigagliano, Associate
Director, Division of Market Regulation, to Benjamin Haskin, Esq.,
Willkie. Farr & Gallagher LLP (April 9, 2007); or Letter from
Josephine Tao, Assistant Director, Division of Trading and Markets,
to Domenick Pugliese, Esq., Paul, Hastings, Janofsky and Walker LLP
(June 27, 2007).
---------------------------------------------------------------------------

     At least 70% of each Fund is comprised of component
securities that meet the minimum public float and minimum average daily
trading volume thresholds under the ``actively-traded securities''
definition found in Regulation M for excepted securities during each of
the previous two months of trading prior to formation of the

relevant Fund; provided, however, that if the Fund has 200 or more
component securities, then 50% of the component securities must meet
the actively-traded securities thresholds;
     All the components of each Index will have publicly
available last sale trade information;
     The intra-day proxy value of each Fund per share and the
value of each Index will be publicly disseminated by a major market
data vendor throughout the trading day;
     On each business day before the opening of business on the
Exchange, the Funds' custodian, through the National Securities
Clearing Corporation, will make available the list of the names and the
numbers of securities and other assets of each Fund's portfolio that
will be applicable that day to creation and redemption requests;
     The Exchange or other market information provider will
disseminate every 15 seconds throughout the trading day through the
facilities of the Consolidated Tape Association an amount representing
on a per-share basis, the current value of the securities and cash to
be deposited as consideration for the purchase of Creation Units;
     The arbitrage mechanism will be facilitated by the
transparency of the Funds' portfolio and the availability of the intra-
day indicative value, the liquidity of securities and other assets held
by the Funds, the ability of the Funds and arbitrageurs to acquire such
securities, as well as the arbitrageurs' ability to create workable
hedges;
     The Funds will invest solely in liquid securities;
     The Funds will invest in securities that will facilitate
an effective and efficient arbitrage mechanism and the ability to
create workable hedges;
     The Requestors believe that arbitrageurs are expected to
take advantage of price variations between each Fund's market price and
its NAV; and
     A close alignment between the market price of Shares and
each Fund's NAV is expected.

Regulation M

    While redeemable securities issued by an open-end management
investment company are excepted from the provisions of Rule 101 and 102
of Regulation M, the Requestors may not rely upon that exception for
the Shares.\2\
---------------------------------------------------------------------------

    \2\ ETFs operate under exemptions from the definitions of
``open-end company'' under Section 5(a)(1) of the 1940 Act and
``redeemable security'' under Section 2(a)(32) of the 1940 Act. The
ETFs and their securities do not meet those definitions.
---------------------------------------------------------------------------

Rule 101 of Regulation M

    Generally, Rule 101 of Regulation M is an anti-manipulation rule
that, subject to certain exceptions, prohibits any ``distribution
participant'' and its ``affiliated purchasers'' from bidding for,
purchasing, or attempting to induce any person to bid for or purchase
any security which is the subject of a distribution until after the
applicable restricted period, except as specifically permitted in the
rule. Rule 100 of Regulation M defines ``distribution'' to mean any
offering of securities that is distinguished from ordinary trading
transactions by the magnitude of the offering and the presence of
special selling efforts and selling methods. The provisions of Rule 101
of Regulation M apply to underwriters, prospective underwriters,
brokers, dealers, and other persons who have agreed to participate or
are participating in a distribution of securities. The Shares are in a
continuous distribution and, as such, the restricted period in which
distribution participants and their affiliated purchasers are
prohibited from bidding for, purchasing, or attempting to induce others
to bid for or purchase extends indefinitely.
    Based on the representations and facts presented in the Letter,
particularly that the Trust is a registered open-end management
investment company that will continuously redeem at the NAV Creation
Units of Shares of the Funds and that a close alignment between the
market price of Shares and the Funds' NAV is expected, the Commission
finds that it is appropriate in the public interest, and consistent
with the protection of investors, to grant the Trust an exemption from
Rule 101 of Regulation M, pursuant to paragraph (d) of Rule 101 of
Regulation M with respect to transactions in the Funds as described in
the Letter, thus permitting persons who may be deemed to be
participating in a distribution of Shares of the Funds to bid for or
purchase such Shares during their participation in such
distribution.\3\
---------------------------------------------------------------------------

    \3\ Additionally, we confirm the interpretation that a
redemption of Creation Units of Shares of the Funds and the receipt
of securities in exchange by a participant in a distribution of
Shares of the Funds would not constitute an ``attempt to induce any
person to bid for or purchase, a covered security during the
applicable restricted period'' within the meaning of Rule 101 of
Regulation M and therefore would not violate that rule.
---------------------------------------------------------------------------

Rule 102 of Regulation M

    Rule 102 of Regulation M prohibits issuers, selling security
holders, and any affiliated purchaser of such person from bidding for,
purchasing, or attempting to induce any person to bid for or purchase a
covered security during the applicable restricted period in connection
with a distribution of securities effected by or on behalf of an issuer
or selling security holder.
    Based on the representations and facts presented in the Letter,
particularly that the Trust is a registered open-end management
investment company that will redeem at the NAV Creation Units of Shares
of the Funds and that a close alignment between the market price of
Shares and the Funds' NAV is expected, the Commission finds that it is
appropriate in the public interest, and consistent with the protection
of investors, to grant the Trust an exemption from Rule 102 of
Regulation M, pursuant to paragraph (e) of Rule 102 of Regulation M
with respect to transactions in the Funds as described in the Letter,
thus permitting the Funds to redeem Shares of the Funds during the
continuous offering of such Shares.

Rule 10b-17

    Rule 10b-17, with certain exceptions, requires an issuer of a class
of publicly traded securities to give notice of certain specified
actions (for example, a dividend distribution) relating to such class
of securities in accordance with Rule 10b-17(b). Based on the
representations and facts in the Letter, in particular that the
concerns that the Commission raised in adopting Rule 10b-17 generally
will not be implicated if exemptive relief, subject to the conditions
below, is granted to the Trust because market participants will receive
timely notification of the existence and timing of a pending
distribution,\4\ we find that it is appropriate in the public interest,
and consistent with the protection of investors, to grant the Trust a
conditional exemption from Rule 10b-17.
---------------------------------------------------------------------------

    \4\ We also note that timely compliance with Rule 10b-
17(b)(1)(v)(a) and (b) would be impractical in light of the nature
of the Funds. This is because it is not possible for the Funds to
accurately project ten days in advance what dividend, if any, would
be paid on a particular record date.
---------------------------------------------------------------------------

Conclusion

    It is hereby ordered, pursuant to Rule 101(d) of Regulation M, that
the Trust is exempt from the requirements of Rules 101 with respect to
transactions in the Shares of the Funds as described in the Letter,
thus permitting persons who may be deemed to be participating in a
distribution of Shares of the Funds to bid for or purchase such Shares
during their participation in such distribution as described in the
Letter.
    It is further ordered, pursuant to Rule 102(e) of Regulation M,
that the Trust is exempt from the requirements of Rule

102 with respect to transaction in the Shares of the Funds as described
in the Letter, thus permitting the Funds to redeem Shares of the Funds
during the continuous offering of such Shares as described in the
Letter.
    It is further ordered, pursuant to Rule 10b-17(b)(2), that the
Trust, subject to the conditions contained in this order, is exempt
from the requirements of Rule 10b-17 with respect to transactions in
the Shares of the Funds as described in the Letter.
    This exemption from Rule 10b-17 is subject to the following
conditions:
     The Trust will comply with Rule 10b-17 except for Rule
10b-17(b)(1)(v)(a) and (b); and
     The Trust will provide the information required by Rule
10b-17(b)(1)(v)(a) and (b) to the Exchange as soon as practicable
before trading begins on the ex-dividend date, but in no event later
than the time when the Exchange last accepts information relating to
distributions on the day before the ex-dividend date.
    This exemption is subject to modification or revocation at any time
the Commission determines that such action is necessary or appropriate
in furtherance of the purposes of the Exchange Act. Persons relying
upon this exemption shall discontinue transactions involving the Shares
of the Funds under the circumstances described above and in the Letter
in the event that any material change occurs with respect to any of the
facts presented or representations made by the Requestors. In addition,
persons relying on this exemption are directed to the anti-fraud and
anti-manipulation provisions of the Exchange Act, particularly Sections
9(a) and 10(b), and Rule 10b-5 thereunder. Responsibility for
compliance with these and any other applicable provisions of the
federal securities laws must rest with the persons relying on this
exemption. This order should not be considered a view with respect to
any other question that the proposed transactions may raise, including,
but not limited to the adequacy of the disclosure concerning, and the
applicability of other federal or state laws to, the proposed
transactions.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\5\
---------------------------------------------------------------------------

    \5\ 17 CFR 200.30-3(a)(6) and (9).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2013-15363 Filed 6-26-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 87, Number 152 (Tuesday, August 9, 2022)]
[Notices]
[Page 48557]
[FR Doc No: C1-2022-16151]

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DEPARTMENT OF TRANSPORTATION

[Docket No. DOT-OST-2022-0047]

Construction Materials Used in Federal Financial Assistance
Projects for Transportation Infrastructure in the United States Under
the Build America, Buy America Act; Request for Information

Correction

    In notice document 2022-16151, appearing on pages 45396-45399, in
the Issue of Thursday, July 28, 2022, make the following correction.
    On page 45396, in the DATES: section, the date ``August 12, 2022''
should read ``August 18, 2022''.

[FR Doc. C1-2022-16151 Filed 8-5-22; 4:15 pm]
BILLING CODE 0099-10-D