[Federal Register Volume 84, Number 56 (Friday, March 22, 2019)]
[Rules and Regulations]
[Pages 10695-10700]
[FR Doc No: 2019-05406]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2017-0671; FRL-9987-25]

Mandipropamid; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes tolerances for residues of
mandipropamid in or on multiple commodities which are identified and
discussed later in this document. Interregional Research Project Number
4 (IR-4) requested these tolerances under the Federal Food, Drug, and
Cosmetic Act (FFDCA).

DATES: This regulation is effective March 22, 2019. Objections and
requests for hearings must be received on or before May 21, 2019, and
must be filed in accordance with the instructions provided in 40 CFR
part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2017-0671, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory
Public Docket (OPP Docket) in the Environmental Protection Agency
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334,
1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the OPP
Docket is<PHONE_NUMBER>. Please review the visitor instructions and
additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Michael Goodis, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone
number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's
tolerance regulations at 40 CFR part 180 through the Government
Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2017-0671 in the subject line on the first
page of your submission. All objections and requests for a hearing must
be in writing, and must be received by the Hearing Clerk on or before
May 21, 2019. Addresses for mail and hand delivery of objections and
hearing requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing (excluding any Confidential Business Information (CBI)) for
inclusion in the public docket. Information not marked confidential
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without
prior notice. Submit the non-CBI copy of your objection or hearing
request, identified by docket ID number EPA-HQ-OPP-2017-0671, by one of
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be CBI or other
information whose disclosure is restricted by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC
20460-0001.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Summary of Petitioned-For Tolerance

    In the Federal Register of July 24, 2018 (83 FR 34968) (FRL-9980-
31), EPA issued a document pursuant to FFDCA section 408(d)(3), 21
U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP
7E8629) by IR-4, IR-4 Project Headquarters, Rutgers, The State
University of NJ, 500 College Road East, Suite 201W, Princeton, NJ
08540. The petition requested that 40 CFR part 180 be amended by
establishing tolerances for residues of mandipropamid, 4-chloro-N-[2-
(3-methoxy-4-(2-propynyloxy)phenyl]ethyl]-[alpha]-(2-propynyloxy)-
benzeneacetamide], in or on the raw agricultural commodities: Asparagus
bean, edible podded at 0.90 parts per million (ppm); Bean (Phaseolus
spp.), edible podded at 0.90 ppm; Bean (Vigna spp.), edible podded at
0.90 ppm; Brassica, leafy greens, subgroup 4-16B at 25 ppm; Catjang
bean, edible podded at 0.90 ppm; Celtuce at 20 ppm; Chinese longbean,
edible podded at 0.90 ppm; Citrus, dried pulp at 0.14 ppm; Citrus, oil
at 2.2 ppm; Cowpea, edible podded at 0.90 ppm; Florence fennel at 20
ppm; French bean, edible podded at 0.90 ppm; Fruit, citrus, group 10-10
at 0.5 ppm; Garden bean, edible podded at 0.90 ppm; Goa bean, edible
podded at 0.90 ppm; Green bean, edible podded at 0.90 ppm; Guar bean,
edible podded at 0.90 ppm; Jackbean, edible podded at 0.90 ppm; Kidney
bean, edible podded at 0.90 ppm; Kohlrabi at 3 ppm; Lablab bean, edible
podded at 0.90 ppm; Leaf petiole vegetable subgroup 22B at 20 ppm;
Leafy greens subgroup 4-16A at 25 ppm; Moth bean, edible podded at 0.90
ppm; Mung bean, edible podded at 0.90 ppm; Navy bean, edible podded at
0.90 ppm; Rice bean, edible podded at 0.90 ppm; Scarlet runner bean,
edible podded at 0.90 ppm; Snap bean, edible podded at 0.90 ppm; Sword
bean, edible podded at 0.90 ppm; Urd bean, edible podded at 0.90 ppm;
Vegetable soybean, edible podded at 0.90 ppm; Vegetable, Brassica, head
and stem, group 5-16 at

3 ppm; Velvet bean, edible podded at 0.90 ppm; Wax bean, edible podded
at 0.90 ppm; Winged pea, edible podded at 0.90 ppm; and Yardlong bean,
edible podded at 0.90 ppm.
    Additionally, the petition requested to amend 40 CFR 180.637 by
removing the tolerances for residues of mandipropamid in or on the raw
agricultural commodities Bean, snap at 0.90 ppm; Brassica, head and
stem, subgroup 5A at 3 ppm; Brassica, leafy greens, subgroup 5B at 25
ppm; and Vegetable, leafy except Brassica, group 4 at 20 ppm.
    That document referenced a summary of the petition prepared by
Syngenta Crop Protection, the registrant, which is available in the
docket, http://www.regulations.gov. There were no comments received in
response to the notice of filing.
    Based upon review of the data supporting the petition, EPA has
modified the levels at which some tolerances are being established as
well as some of the commodities in which tolerances are being
established. The reason for these changes are explained in Unit IV.C.

III. Aggregate Risk Assessment and Determination of Safety

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

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children.
    Subchronic and chronic studies indicate that the liver and kidney
are the primary target organs for mandipropamid. Liver effects observed
in subchronic studies with rats, mice and dogs included periportal
hypertrophy (rats), increased eosinophilia (rats and mice), increased
plasma albumin, total protein, cholesterol, and gamma-glutamyl
transferase (rats), increased liver weights (rats, mice and dogs),
increased liver enzymes (dogs), increased pigment in hepatocytes and
Kupffer cells (dogs), and centrilobular hepatocyte vacuolation (dogs).
In the chronic dog study, increases in microscopic pigment in the
liver, and increased liver enzymes were observed. In the chronic rat
and mouse studies, liver toxicity was not observed. Nephrotoxicity was
observed in the chronic rat study; however, in the chronic mouse study,
only decreased body weight and food utilization were observed. The
findings of liver toxicity and nephrotoxicity are consistent with the
results from metabolism studies, in which radioactivity levels in liver
and kidney were typically higher than other tissues. There were no
consistent sex-related differences in target organ toxicity, although
male rats appeared to be more sensitive to body weight effects.
    No evidence of neurotoxicity was observed in the database,
including rat acute or subchronic neurotoxicity studies. No systemic or
dermal toxicity was observed in the rat following dermal exposure for
28 days up to the limit dose.
    No evidence of increased pre- or postnatal quantitative or
qualitative susceptibility was observed. No fetal or maternal toxicity
was observed in developmental toxicity studies in the rat and rabbit.
Decreased pup weights were observed in the rat two-generation
reproduction study in the presence of decreased parental body weight
and food utilization.
    There was no evidence of a treatment-related increase in tumor
incidence in the mouse carcinogenicity study or the rat chronic/
carcinogenicity study. There was no evidence of genotoxicity in
bacterial reverse gene mutation, mammalian in vitro forward gene
mutation, mammalian in vivo clastogenicity, or unscheduled DNA
synthesis assays. Therefore, mandipropamid is classified as ``not
likely to be carcinogenic to humans.''
    Specific information on the studies received and the nature of the
adverse effects caused by mandipropamid as well as the no-observed-
adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-
level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled ``Mandipropamid. Aggregate
Human Health Risk Assessment Supporting Section 3 Registration of
Proposed New Uses on Citrus Fruits Group 10-10 and Succulent Beans,
Along with Various Crop Group and Subgroup Conversions'' on pages 35-39
in docket ID number EPA-HQ-OPP-2017-0671.

B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA
identifies toxicological points of departure (POD) and levels of
concern to use in evaluating the risk posed by human exposure to the
pesticide. For hazards that have a threshold below which there is no
appreciable risk, the toxicological POD is used as the basis for
derivation of reference values for risk assessment. PODs are developed
based on a careful analysis of the doses in each toxicological study to
determine the dose at which no adverse effects are observed (the NOAEL)
and the lowest dose at which adverse effects of concern are identified
(the LOAEL). Uncertainty/safety factors are used in conjunction with
the POD to calculate a safe exposure level--generally referred to as a
population-adjusted dose (PAD) or a reference dose (RfD)--and a safe
margin of exposure (MOE). For non-threshold risks, the Agency assumes
that any amount of exposure will lead to some degree of risk. Thus, the
Agency estimates risk in terms of the probability of an occurrence of
the adverse effect expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.
    A summary of the toxicological endpoints for mandipropamid used for
human risk assessment is shown in Table 1 of this unit.

 Table 1--Summary of Toxicological Doses and Endpoints for Mandipropamid for Use in Human Health Risk Assessment
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                                        Point of departure and
          Exposure/scenario               uncertainty/safety     RfD, PAD, LOC for risk  Study and toxicological
                                               factors                 assessment                effects
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Acute dietary(All populations,            No appropriate endpoint for a single exposure was identified in the
 including infants and children, and                                    database.
 females 13-49).
                                      --------------------------------------------------------------------------
Chronic dietary (All populations)....  NOAEL= 5 mg/kg/day.....  Chronic RfD = 0.05 mg/   Chronic toxicity study--
                                       UFA = 10x..............   kg/day.                  dog.
                                       UFH = 10x..............  cPAD = 0.05 mg/kg/day..  LOAEL = 40 mg/kg/day,
                                       FQPA SF = 1x...........                            based on increased
                                                                                incidence and severity
                                                                                of microscopic pigment
                                                                                in the liver, and
                                                                                increased alkaline
                                                                                phosphatase activity
                                                                                in both sexes, as well
                                                                                as increased alanine
                                                                                aminotransferase
                                                                                activity in males.
                                      --------------------------------------------------------------------------
Cancer (Oral, dermal, inhalation)....            Classified as not likely to be carcinogenic to humans.
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FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. mg/kg/day =
  milligram/kilogram/day. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c
  = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human
  (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to mandipropamid, EPA considered exposure under the
petitioned-for tolerances as well as all existing mandipropamid
tolerances in 40 CFR 180.637. EPA assessed dietary exposures from
mandipropamid in food as follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk
assessments are performed for a food-use pesticide, if a toxicological
study has indicated the possibility of an effect of concern occurring
as a result of a 1-day or single exposure. No such effects were
identified in the toxicological studies for mandipropamid; therefore, a
quantitative acute dietary exposure assessment is unnecessary.
    ii. Chronic exposure. In conducting the chronic dietary exposure
assessment, EPA used Dietary Exposure Evaluation Model software with
the Food Commodity Intake Database (DEEM-FCID) Version 3.16, which uses
food consumption data from the U.S.
    Department of Agriculture's (USDA's) National Health and Nutrition
Examination Survey, ``What We Eat in America'' (NHANES/WWEIA) from 2003
through 2008. As to residue levels in food, the chronic dietary risk
assessment assumed tolerance-level residues in all commodities with
existing tolerances except tuberous and corm vegetable subgroup 1C. For
the chronic dietary risk assessment, this subgroup was assessed at
0.115 ppm, which assumes tolerance-level residues of parent
mandipropamid (0.09 ppm), and includes metabolite SYN 500003 in parent-
equivalents (at 0.025 ppm). Tolerance-level residues associated with
the proposed new uses and crop group conversions were also used in the
assessment. The Agency's 2018 Default Processing Factors were used for
all processed commodities for which they were available. The empirical
processing factor from the grape processing study was used for grape
wine/sherry (1.5X). A processing factor was not used for grape raisin
because a tolerance is currently established in raisin. Similarly,
processing factors were not used for citrus oil and dried pulp because
the Agency is establishing separate tolerances in these commodities.
    iii. Cancer. Based on the lack of evidence of carcinogenicity or
genotoxicity, the Agency has classified mandipropamid as ``not likely
to be a human carcinogen'' and therefore, there is no concern for
cancer risk.
    iv. Anticipated residue and percent crop treated (PCT) information.
EPA did not use anticipated residue or PCT information in the dietary
assessment for mandipropamid. Tolerance level residues and 100 PCT were
assumed for all food commodities except as noted in section III.C.ii.
    2. Dietary exposure from drinking water. The Agency used screening
level water exposure models in the dietary exposure analysis and risk
assessment for mandipropamid in drinking water. These simulation models
take into account data on the physical, chemical, and fate/transport
characteristics of mandipropamid. Further information regarding EPA
drinking water models used in pesticide exposure assessment can be
found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.
    Based on the FQPA Index Reservoir Screening Tool (FIRST) and
Pesticide Root Zone Model Ground Water (PRZM GW), the estimated
drinking water concentrations (EDWCs) of mandipropamid for chronic
exposures are estimated to be 9.0 ppb for surface water and 79 ppb for
ground water.
    Modeled estimates of drinking water concentrations were directly
entered into the dietary exposure model. For the chronic dietary risk
assessment, the water concentration value of 79 ppb was used to assess
the contribution to drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., for lawn and garden pest control, indoor pest control,
termiticides, and flea and tick control on pets).
    Mandipropamid is not registered for any specific use patterns that
would result in residential exposure.
    4. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
    EPA has not found mandipropamid to share a common mechanism of
toxicity with any other substances, and mandipropamid does not appear
to produce a toxic metabolite produced by other substances. For the
purposes of this tolerance action, therefore, EPA has

assumed that mandipropamid does not have a common mechanism of toxicity
with other substances. For information regarding EPA's efforts to
determine which chemicals have a common mechanism of toxicity and to
evaluate the cumulative effects of such chemicals, see EPA's website at
http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA
shall apply an additional tenfold (10X) margin of safety for infants
and children in the case of threshold effects to account for prenatal
and postnatal toxicity and the completeness of the database on toxicity
and exposure unless EPA determines based on reliable data that a
different margin of safety will be safe for infants and children. This
additional margin of safety is commonly referred to as the FQPA Safety
Factor (SF). In applying this provision, EPA either retains the default
value of 10X, or uses a different additional safety factor when
reliable data available to EPA support the choice of a different
factor.
    2. Prenatal and postnatal sensitivity. No evidence of increased
pre- or postnatal quantitative or qualitative susceptibility was
observed. No fetal or maternal toxicity was observed in developmental
toxicity studies in the rat and rabbit. Decreased pup weights were
observed in the rat two-generation reproduction study in the presence
of decreased parental body weight and food utilization.
    3. Conclusion. EPA has determined that reliable data show the
safety of infants and children would be adequately protected if the
FQPA SF were reduced to 1x. That decision is based on the following
findings:
    i. The toxicity database for mandipropamid is complete.
    ii. There is no indication that mandipropamid is a neurotoxic
chemical and there is no need for a developmental neurotoxicity study
or additional UFs to account for neurotoxicity.
    iii. There is no evidence that mandipropamid results in increased
susceptibility in in utero rats or rabbits in the prenatal
developmental studies or in young rats in the 2-generation reproduction
study.
    iv. There are no residual uncertainties identified in the exposure
databases. The dietary food exposure assessments were performed based
on 100 PCT and tolerance-level residues except as noted in section
III.C.ii. EPA made conservative (protective) assumptions in the ground
and surface water modeling used to assess exposure to mandipropamid in
drinking water. These assessments will not underestimate the exposure
and risks posed by mandipropamid.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide
exposures are safe by comparing aggregate exposure estimates to the
acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA
calculates the lifetime probability of acquiring cancer given the
estimated aggregate exposure. Short-, intermediate-, and chronic-term
risks are evaluated by comparing the estimated aggregate food, water,
and residential exposure to the appropriate PODs to ensure that an
adequate MOE exists.
    1. Acute risk. An acute aggregate risk assessment takes into
account acute exposure estimates from dietary consumption of food and
drinking water. No adverse effect resulting from a single oral exposure
was identified and no acute dietary endpoint was selected. Therefore,
mandipropamid is not expected to pose an acute risk.
    2. Chronic risk. Using the exposure assumptions described in this
unit for chronic exposure, EPA has concluded that chronic exposure to
mandipropamid from food and water will utilize 49% of the cPAD for
children 1-2 years old, the population group receiving the greatest
exposure. There are no residential uses for mandipropamid.
    3. Short- and intermediate-term risk. Short- and intermediate-term
aggregate exposure takes into account short- and intermediate-term
residential exposure plus chronic exposure to food and water
(considered to be a background exposure level). Short- and
intermediate-term adverse effects were identified; however,
mandipropamid is not registered for any use patterns that would result
in either short- or intermediate-term residential exposure. Short- and
intermediate-term risk is assessed based on short- and intermediate-
term residential exposure plus chronic dietary exposure. Because there
is no short- or intermediate-term residential exposure and chronic
dietary exposure has already been assessed under the appropriately
protective cPAD (which is at least as protective as the POD used to
assess short-term risk), no further assessment of short- or
intermediate-term risk is necessary, and EPA relies on the chronic
dietary risk assessment for evaluating short- and intermediate-term
risk for mandipropamid.
    4. Aggregate cancer risk for U.S. population. Based on the lack of
evidence of carcinogenicity in two adequate rodent carcinogenicity
studies, mandipropamid is not expected to pose a cancer risk to humans.
    5. Determination of safety. Based on these risk assessments, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population, or to infants and children from aggregate
exposure to mandipropamid residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    There is an adequate enforcement method available for the
quantitation of mandipropamid in plant commodities. Method RAM 415/01,
using high performance liquid chromatography with tandem mass
spectrometric detection (LC/MS/MS), has been adequately validated by an
independent laboratory. It has a validated limit of quantitation (LOQ)
of 0.01 ppm. An acceptable confirmatory method is also available.
    The method may be requested from: Chief, Analytical Chemistry
Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD
20755-5350; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S.
tolerances with international standards whenever possible, consistent
with U.S. food safety standards and agricultural practices. EPA
considers the international maximum residue limits (MRLs) established
by the Codex Alimentarius Commission (Codex), as required by FFDCA
section 408(b)(4). The Codex Alimentarius is a joint United Nations
Food and Agriculture Organization/World Health Organization food
standards program, and it is recognized as an international food safety
standards-setting organization in trade agreements to which the United
States is a party. EPA may establish a tolerance that is different from
a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain
the reasons for departing from the Codex level.
    There are no harmonization issues with Codex regarding the new use
on citrus fruits because Codex has not established MRLs for
mandipropamid in citrus commodities. Additionally, Codex has not
established an MRL in

snap beans, so this is not a harmonization issue. Regarding the updated
crop group/subgroup conversions, the tolerance in leafy vegetable group
4-16 is harmonized with the corresponding Codex MRLs. The tolerance in
Brassica head and stem vegetable group 5-16, and the individual
tolerance in kohlrabi, is harmonized with the Codex MRLs in cabbage and
Chinese napa cabbage, but not the Codex MRL in broccoli. There are no
Codex MRLs in Brussels sprouts, cauliflower or kohlrabi. The EPA is not
harmonizing with the Codex MRL in broccoli because it is lower than the
U.S. tolerance in Brassica head and stem vegetable group 5-16; setting
a lower tolerance in broccoli could result in violative residues for
U.S. growers. The tolerance in leaf petiole subgroup 22B, with
individual tolerances in celtuce and Florence fennel, is harmonized
with the Codex MRL in celery.

C. Revisions to Petitioned-For Tolerances

    EPA's tolerance levels are expressed to provide sufficient
precision for enforcement purposes, and this may include the addition
of trailing zeros (0.50 ppm rather than the proposed 0.5 ppm). The
Agency does this in order to avoid the situation where rounding of an
observed violative residue to the level of precision of the tolerance
expression would result in a residue being considered non-violative
(such as 0.54 ppm being rounded to 0.5 ppm). EPA made this revision for
Fruit, citrus, group 10-10, Kohlrabi, and Vegetable, Brassica, head and
stem, group 5-16.
    Because the petitioner proposed separate tolerances in both
subgroups 4-16A and 4-16B at 25 ppm, the Agency is establishing a
single tolerance in leafy vegetable group 4-16 at 25 ppm rather than
separate tolerances in the two subgroups. In addition, the Agency
revised the commodity terminology to use the correct commodity
definition for Florence fennel, which is Fennel, Florence, fresh leaves
and stalk.
    The proposed tolerance in citrus dried pulp (0.14 ppm) was
incorrectly based on the dried pulp processing factor (2.9X) multiplied
by the lowest average field trial value (LAFT) of 0.049 ppm from the
orange field trials. However, per Office of Chemical Safety and
Pollution Prevention (OCSPP) Residue Chemistry Test Guideline 860.1520,
EPA based the tolerance on the processing factor (2.9X) multiplied by
the highest average field trial value (HAFT) of 0.231 ppm from the
lemon field trials (which had the highest HAFT of the three
representative commodities), yielding a result of 0.67 ppm. Per the
rounding protocol in the Organization for Economic Cooperation and
Development (OECD) MRL Calculator User Guide, this result was increased
to 0.70 ppm.
    Similarly, the proposed tolerance in citrus oil (2.2 ppm) was
incorrectly based on the oil processing factor (45X) multiplied by the
LAFT of 0.049 ppm from the orange field trials. As for dried pulp, EPA
based the tolerance in citrus oil on the processing factor (45X)
multiplied by the HAFT of 0.231 ppm from the lemon field trials,
yielding a result of 10.4 ppm. Per the rounding protocol in the OECD's
MRL Calculator User Guide this result was increased to 15 ppm.

V. Conclusion

    Therefore, tolerances are established for residues of mandipropamid
in or on Asparagus bean, edible podded at 0.90 ppm; Bean (Phaseolus
spp.), edible podded at 0.90 ppm; Bean (Vigna spp.), edible podded at
0.90 ppm; Catjang bean, edible podded at 0.90 ppm; Celtuce at 20 ppm;
Chinese longbean, edible podded at 0.90 ppm; Citrus, dried pulp at 0.70
ppm; Citrus, oil at 15 ppm; Cowpea, edible podded at 0.90 ppm; Fennel,
Florence, fresh leaves and stalk at 20 ppm; French bean, edible podded
at 0.90 ppm; Fruit, citrus, group 10-10 at 0.50 ppm; Garden bean,
edible podded at 0.90 ppm; Goa bean, edible podded at 0.90 ppm; Green
bean, edible podded at 0.90 ppm; Guar bean, edible podded at 0.90 ppm;
Jackbean, edible podded at 0.90 ppm; Kidney bean, edible podded at 0.90
ppm; Kohlrabi at 3.0 ppm; Lablab bean, edible podded at 0.90 ppm; Leaf
petiole vegetable subgroup 22B at 20 ppm; Moth bean, edible podded at
0.90 ppm; Mung bean, edible podded at 0.90 ppm; Navy bean, edible
podded at 0.90 ppm; Rice bean, edible podded at 0.90 ppm; Scarlet
runner bean, edible podded at 0.90 ppm; Snap bean, edible podded at
0.90 ppm; Sword bean, edible podded at 0.90 ppm; Urd bean, edible
podded at 0.90 ppm; Vegetable, Brassica, head and stem, group 5-16 at
3.0 ppm; Vegetable, leafy, group 4-16 at 25 ppm; Vegetable soybean,
edible podded at 0.90 ppm; Velvet bean, edible podded at 0.90 ppm; Wax
bean, edible podded at 0.90 ppm; Winged pea, edible podded at 0.90 ppm;
and Yardlong bean, edible podded at 0.90 ppm.
    Additionally, the existing tolerances in/on Bean, snap at 0.90 ppm;
Brassica, head and stem, subgroup 5A at 3 ppm; Brassica, leafy greens,
subgroup 5B at 25 ppm; and Vegetable, leafy except Brassica, group 4 at
20 ppm are removed as unnecessary since they are covered by the new
tolerances.

VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in
response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these types of actions from
review under Executive Order 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993). Because this action has been
exempted from review under Executive Order 12866, this action is not
subject to Executive Order 13211, entitled ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), nor is it considered a
regulatory action under Executive Order 13771, entitled ``Reducing
Regulations and Controlling Regulatory Costs'' (82 FR 9339, February 3,
2017). This action does not contain any information collections subject
to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
et seq.), nor does it require any special considerations under
Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under FFDCA section 408(d), such as the tolerances in
this final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), do not apply.
    This action directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of FFDCA section 408(n)(4). As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined that Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999) and Executive Order 13175,

entitled ``Consultation and Coordination with Indian Tribal
Governments'' (65 FR 67249, November 9, 2000) do not apply to this
action. In addition, this action does not impose any enforceable duty
or contain any unfunded mandate as described under Title II of the
Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 272 note).

VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

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

    Dated: March 14, 2019.
Michael Goodis,
Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

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

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

0
2. In Sec.  180.637, in the table to paragraph (a):
0
a. Add alphabetically the entry ``Asparagus bean, edible podded'';
0
b. Remove the entry for ``Bean, snap'';
0
c. Add alphabetically the entries ``Bean (Phaseolus spp.), edible
podded'' and ``Bean (Vigna spp.), edible podded'';
0
d. Remove the entries for ``Brassica, head and stem, subgroup 5A'' and
``Brassica, leafy greens, subgroup 5B''; and
0
e. Add alphabetically the entries ``Catjang bean, edible podded'';
``Celtuce''; ``Chinese longbean, edible podded''; ``Citrus, dried
pulp''; ``Citrus, oil''; ``Cowpea, edible podded''; ``Fennel, Florence,
fresh leaves and stalk''; ``French bean, edible podded''; ``Fruit,
citrus, group 10-10''; ``Garden bean, edible podded''; ``Goa bean,
edible podded''; ``Green bean, edible podded''; ``Guar bean, edible
podded''; ``Jackbean, edible podded''; ``Kidney bean, edible podded'';
``Kohlrabi''; ``Lablab bean, edible podded''; ``Leaf petiole vegetable
subgroup 22B''; ``Moth bean, edible podded''; ``Mung bean, edible
podded''; ``Navy bean, edible podded''; ``Rice bean, edible podded'';
``Scarlet runner bean, edible podded''; ``Snap bean, edible podded'';
``Sword bean, edible podded''; ``Urd bean, edible podded'';
``Vegetable, Brassica, head and stem, group 5-16''; and ``Vegetable,
leafy, group 4-16'';
0
f. Remove the entry for ``Vegetable, leafy except Brassica, group 4'';
and
0
g. Add alphabetically the entries ``Vegetable soybean, edible podded'';
``Velvet bean, edible podded''; ``Wax bean, edible podded''; ``Winged
pea, edible podded''; and ``Yardlong bean, edible podded''.
    The additions read as follows:

Sec.  180.637  Mandipropamid; tolerances for residues.

    (a) * * *

------------------------------------------------------------------------
                                                               Parts per
                          Commodity                             million
------------------------------------------------------------------------
Asparagus bean, edible podded...............................        0.90

                                * * * * *
Bean (Phaseolus spp.), edible podded........................        0.90
Bean (Vigna spp.), edible podded............................        0.90
Catjang bean, edible podded.................................        0.90
Celtuce.....................................................          20
Chinese longbean, edible podded.............................        0.90
Citrus, dried pulp..........................................        0.70
Citrus, oil.................................................          15
Cowpea, edible podded.......................................        0.90
Fennel, Florence, fresh leaves and stalk....................          20
French bean, edible podded..................................        0.90
Fruit, citrus, group 10-10..................................        0.50

                                * * * * *
Garden bean, edible podded..................................        0.90

                                * * * * *
Goa bean, edible podded.....................................        0.90

                                * * * * *
Green bean, edible podded...................................        0.90
Guar bean, edible podded....................................        0.90

                                * * * * *
Jackbean, edible podded.....................................        0.90
Kidney bean, edible podded..................................        0.90
Kohlrabi....................................................         3.0
Lablab bean, edible podded..................................        0.90
Leaf petiole vegetable subgroup 22B.........................          20
Moth bean, edible podded....................................        0.90
Mung bean, edible podded....................................        0.90
Navy bean, edible podded....................................        0.90

                                * * * * *
Rice bean, edible podded....................................        0.90
Scarlet runner bean, edible podded..........................        0.90
Snap bean, edible podded....................................        0.90
Sword bean, edible podded...................................        0.90
Urd bean, edible podded.....................................        0.90
Vegetable, Brassica, head and stem, group 5-16..............         3.0

                                * * * * *
Vegetable, leafy, group 4-16................................          25
Vegetable soybean, edible podded............................        0.90

                                * * * * *
Velvet bean, edible podded..................................        0.90
Wax bean, edible podded.....................................        0.90
Winged pea, edible podded...................................        0.90
Yardlong bean, edible podded................................        0.90
------------------------------------------------------------------------

* * * * *
[FR Doc. 2019-05406 Filed 3-21-19; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Notices]
[Page 32244]
[FR Doc No: 2013-12648]

=======================================================================
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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER11-3326-003.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Midcontinent Independent System Operator, Inc. submits
05-17-2013 SA 2165 Ameren-Settlers GIA Comp to be effective 4/9/2011.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5141.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER11-3330-003.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Midcontinent Independent System Operator, Inc. submits
05-17-2013 SA 2325 MPFCA Ameren-Settlers Comp to be effective 4/12/
2011.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5143.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER11-3576-009.
    Applicants: Golden Spread Electric Cooperative, Inc.
    Description: Golden Spread Electric Cooperative, Inc. submits
Updated Market Power Analysis--Second Revision to be effective 12/28/
2012.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5109.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER12-1772-001.
    Applicants: Southwest Power Pool, Inc.
    Description: Southwest Power Pool, Inc. submits Compliance Filing
in ER12-1772--Attachment O to be effective 7/26/2010.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5155.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1519-000.
    Applicants: Arizona Public Service Company
    Description: Arizona Public Service Company submits Edison Navajo
Transmission Agreement as APS Rate Schedule No. 267 to be effective 7/
1/2013.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5145.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1520-000.
    Applicants: Arizona Public Service Company
    Description: Arizona Public Service Company submits tariff filing
per 35.13(a)(2)(iii: Amendment of Shiprock Four Corners Project
Interconnection Agreement, SA 209 to be effective 7/1/2013.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5149.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1521-000.
    Applicants: Arizona Public Service Company
    Description: Arizona Public Service Company submits Amendments to
reflect APS acquisition of portions of Four Corners Units 4-5 to be
effective 7/1/2013.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5152.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1522-000.
    Applicants: Massachusetts Electric Company
    Description: Massachusetts Electric Company submits:
Interconnection Agreement Between MECO and French River Land Co. re
Tannery Pond to be effective 7/17/2013.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5153.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1523-000.
    Applicants: Blythe Energy, LLC.
    Description: Blythe Energy, LLC submits Blythe Energy Inc. MBR
Tariff to be effective 5/18/2013.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5154.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1524-000.
    Applicants: Massachusetts Electric Compan.y
    Description: Massachusetts Electric Company submits Interconnection
Agreement Between MECO and MM Lowell Energy LLC to be effective 7/17/
2013.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5159.
    Comments Due: 5 p.m. ET 6/7/13.

    Docket Numbers: ER13-1525-000.
    Applicants: PPL Electric Utilities Corporation.
    Description: Notice of Cancellation of PPL Electric Utilities
Corporation.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5174.
    Comments Due: 5 p.m. ET 6/7/13.

    Take notice that the Commission received the following PURPA
210(m)(3) filings:

    Docket Numbers: QM13-2-000.
    Applicants: PPL Electric Utilities Corporation.
    Description: Application to Terminate Purchase Obligation of PPL
Electric Utilities Corporation.
    Filed Date: 5/17/13.
    Accession Number: 20130517-5183.
    Comments Due: 5 p.m. ET 6/14/13.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: May 20, 2013.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2013-12648 Filed 5-28-13; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: March 6, 2009 (Volume 74, Number 43)]
[Notices]
[Page 9864-9867]
[DOCID:fr06mr09-71]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59464; File No. SR-NYSE-2006-92]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Proposed Rule Change, as Modified by Amendment No.
4, To Amend NYSE Rule 452 and Listed Company Manual Section 402.08 To
Eliminate Broker Discretionary Voting for the Election of Directors and
Codify Two Previously Published Interpretations That Do Not Permit
Broker Discretionary Votes for Material Amendments to Investment
Advisory Contracts

February 26, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby
given that on October 24, 2006, the New York Stock Exchange LLC
(``Exchange'' or ``NYSE'') filed with the Securities and Exchange
Commission (``Commission'' or ``SEC'') the proposed rule change as
described in items I, II and III below, which items have been prepared
by the self-regulatory organization. On May 23, 2007, the Exchange
filed Amendment No. 1 to the proposed rule change. On June 28, 2007,
the Exchange filed Amendment No. 2 to the proposed rule change. On
February 26, 2009, the Exchange filed and withdrew Amendment No. 3 to
the proposed rule change. On February 26, 2009, the Exchange filed
Amendment No. 4.\3\ The Commission is publishing this notice to solicit
comments on the proposed rule change, as modified by Amendment No. 4,
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 4 supersedes and replaces the Exchange's
original Form 19b-4 and Amendment Nos. 1 and 2.
---------------------------------------------------------------------------

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

    The NYSE is proposing to amend NYSE Rule 452 to eliminate broker
discretionary voting for the election of directors. Rule 452, titled
Giving Proxies by Member Organizations, allows brokers to vote on
``routine'' proposals if the beneficial owner of the stock has not
provided specific voting instructions to the broker at least 10 days
before a scheduled meeting. The proposed amendment will be applicable
to proxy voting for shareholder meetings held on or after January 1,
2010. Notwithstanding the foregoing, in the event the proposed
amendment is not approved by the Commission until after August 31,
2009, the effective date shall be delayed to a date which is at least
four months after the approval date, and which does not fall within the
first six months of the calendar year. In addition, in any case the
proposed amendment will not apply to a meeting that was originally
scheduled to be held prior to the effective date but was properly
adjourned to date on or after the effective date.\4\
---------------------------------------------------------------------------

    \4\ The Commission notes that the proposal also codifies two
previously published interpretations that do not permit broker votes
for material amendments to investment advisory contracts. See infra
notes 10-11 and accompanying text.
---------------------------------------------------------------------------

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 self-regulatory organization
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 and is set forth in Sections A, B
and C below. The NYSE has prepared summaries, set forth in Sections A,
B and C below, of the most significant aspects of such statements.
    The text of the proposed rule change is available on the Exchange's
Web site (http://www.nyse.com), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

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

1. Purpose
    The NYSE is proposing to amend NYSE Rule 452 to eliminate broker
discretionary voting for the election of directors. Rule 452, titled
Giving Proxies by Member Organizations, allows brokers to vote on
``routine'' proposals if the beneficial owner of the stock has not
provided specific voting instructions to the broker at least 10 days
before a scheduled meeting. The proposed amendment will be applicable
to proxy voting for shareholder meetings held on or after January 1,
2010. Notwithstanding the foregoing, in the event the proposed
amendment is not approved by the Commission until after August, 31,
2009, the effective date shall be delayed to a date which is at least
four months after the approval date, and which does not fall within the
first six months of the calendar year. In addition, in any case the
proposed amendment will not apply to a meeting that was originally
scheduled to be held prior to the effective date but was properly
adjourned to a date on or after the effective date.
    The NYSE originally filed these proposed amendments on October 24,
2006. The first amendment to the rule filing was filed on May 23, 2007.
The most significant difference being proposed in that amendment was to
provide that the proposed amendment to Rule 452 is not applicable to
companies registered under the Investment Company Act of 1940. The
second amendment to the rule filing was filed on June 27, 2007
[sic].\5\ It reflected minor SEC staff comments to Amendment No. 1 and
added another non-routine item to the list enumerated in Rule 452.11
relating to amendments to investment contracts. That proposed change
codified a NYSE interpretation that was published in 1992. This
amendment is being filed to update the provision regarding the
effective date and to reflect minor SEC staff comments on Amendment No.
2. Amendment No. 3 was withdrawn for technical reasons.
---------------------------------------------------------------------------

    \5\ The Commission notes that the Exchange filed Amendment No. 2
on June 28, 2007.
---------------------------------------------------------------------------

Current Requirements of NYSE Rule 452
    Under the current NYSE and SEC proxy rules, brokers must deliver
proxy materials to beneficial owners and request voting instructions in
return. If voting instructions have not been received by the tenth day
preceding the meeting date, Rule 452 provides that brokers may vote on
certain matters deemed ``routine'' by the NYSE. One of the most
important results of broker votes of uninstructed shares is their use
in establishing a quorum at shareholder meetings.
    Among the other matters which the current NYSE Rule 452 treats as
routine is an ``uncontested'' election for a

company's board of directors.\6\ Such elections remain the general
practice in corporate America today, with contested elections occurring
relatively infrequently. According to ADP, there were only thirty-four
officially contested elections in calendar year 2004.
---------------------------------------------------------------------------

    \6\ Rule 452.11(2) defines a ``contest'' as a matter that ``is
the subject of a counter-solicitation, or is part of a proposal made
by a stockholder which is being opposed by management.''
---------------------------------------------------------------------------

    However in recent years the definition of a ``contested election''
has been questioned by a number of parties and interest groups.\7\ This
is because of the rise of a number of new types of proxy campaigns,
including ``just vote no'' campaigns. Because these campaigns often do
not result in competing solicitations, historically these efforts have
not been considered ``contests'' for purposes of NYSE Rule 452, and
thus broker votes have been counted. This has drawn the ire of some
investor groups since generally brokers vote uninstructed shares in
accordance with the incumbent board's recommendations.
---------------------------------------------------------------------------

    \7\ For example, in 2002, the Council of Institutional Investors
publicly criticized in the media the NYSE's definition of
``contests'' as ``problematic'' because it fails to classify as
contests ``just vote no'' campaigns, it fails to recognize the use
of the Internet as a means of contesting management, it puts ADP in
an inappropriate and conflicted role, and it is inconsistent with
securities laws which recognize the validity of exempt
solicitations. In a letter to the SEC dated June 13, 2003,
Institutional Shareholders Services expressed concern that because
``the NYSE classifies the election of directors as a routine voting
item unless a full-blown proxy contest has erupted,'' the efforts of
shareholders to express disapproval of board actions at companies
like Sprint and Tyco in the 2003 proxy season were ``watered down by
broker votes.'' Moreover, in their presentations to the Working
Group, several groups recommended that the definition of a contest
be expanded or changed, including the AFL-CIO and the American
Business Conference.
---------------------------------------------------------------------------

    On ``non-routine'' matters, which generally speaking are those
involving a contest or any matter which may affect substantially the
rights or privileges of stockholders, NYSE rules prohibit brokers from
voting without receiving instructions from the beneficial owners. At
present, the NYSE Rule 452.11 lists by way of example eighteen such
``non-routine'' matters, including items such as stockholder proposals
opposed by management, and mergers or consolidations.
NYSE Proxy Working Group
    The Proxy Working Group was created by the NYSE in April 2005 to
review the NYSE rules regulating the proxy voting process, and more
specifically to review and make recommendations with respect to NYSE
Rules 450-460 (with a particular focus on Rule 452) and 465. In
creating the Working Group, the NYSE sought to obtain a wide diversity
of views as well as a broad range of expertise. As a result, the
Working Group contains representatives from a number of different
constituencies, all of whom have significant experience with the proxy
voting process.
    In June 2006, the Proxy Working Group prepared a draft report and a
series of recommendations relating to their findings. In this report,
the Proxy Working Group expressed its belief that the election of
directors should no longer be viewed as routine under Rule 452 and thus
that brokers should no longer be permitted to cast uninstructed shares
for the election of directors.
    The Proxy Working Group report notes that this proposed change
could significantly impact the director election process. For example,
it is likely to increase the costs of uncontested elections, as issuers
will have to spend more money and effort to reach shareholders who
previously did not vote. These costs may increase substantially with
the rise of majority voting for directors, as issuers have to obtain
the votes from shareholders who may not realize that their failure to
vote constitutes a ``no'' vote. Such a change may also increase the
influence of special interest groups or others with a particular agenda
to challenge an incumbent board, at the expense of smaller
shareholders. These consequences could fall most dramatically on
smaller issuers, who have a smaller proportion of institutional
investors and/or have greater difficulty in contacting shareholders and
convincing them to vote in uncontested elections.
    Despite these potential difficulties, the Proxy Working Group
stated in its report that it is important to recognize that the
election of a director, even where the election is uncontested, is not
a routine event in the life of a corporation. While this is likely to
result in some greater costs and difficulties for issuers, it is a cost
required to be paid for better corporate governance and transparency of
the election process.
    Following the issuance of the draft Proxy Working Group Report, in
June 2006, the NYSE circulated the report to its listed companies and
certain other entities and asked for comment on all of the proposed
recommendations. The NYSE received approximately 46 comment letters or
emails on the proposed recommendations; 39 of these letters related to
amending Rule 452 to make the election of directors a non-routine
matter. 15 of these comment letters strongly supported the proposed
change to Rule 452, 8 letters expressed the view that the SEC should
undertake an extensive review of shareholder communications before Rule
452 is amended, and 16 letters expressed concern regarding the proposed
amendment. Among the primary concerns expressed with respect to the
proposed amendment to Rule 452 was the potential difficulty in
obtaining a quorum in uncontested elections without the use of the
broker discretionary vote pursuant to existing Rule 452. This issue was
raised by a number of operating companies, especially representatives
of small and mid-size companies.
    The investment company community raised similar issues, emphasizing
the cost and difficulties of obtaining a quorum as well as general
problems in getting fund shareholders to vote.\8\ In addition, the
investment companies emphasized the different and unique regulatory and
statutory regime governing their actions, which provides additional
protections to investors. The Investment Company Institute (``ICI'')
provided detailed information to the Proxy Working Group, including
analyses about the additional costs that would be incurred by
investment companies if such companies would not be allowed to count
broker-votes in uncontested elections for directors, as well as the
different shareholder profiles of investment companies and operating
companies, and the differing regulatory regimes of investment
companies.\9\
---------------------------------------------------------------------------

    \8\ The ICI submitted a report to the Proxy Working Group titled
``Costs of Eliminating Discretionary Broker Voting on Uncontested
Elections of Investment Company Directors,'' which found, among
other things, that if ``discretionary broker voting is eliminated,
typical proxy costs [for investment companies] are estimated to more
than double'' and that therefore ``fund expense ratios could rise by
approximately 1 to 2 basis points owing to higher proxy costs''.
    \9\ The ICI Report made the point that eliminating discretionary
broker voting will have a disproportionate impact on funds as
compared to operating companies because funds have a higher
proportion of retail investors. The Report also noted that funds
already have a high number of re-solicitations and adjournments of
shareholder meetings when there are non-routine items on the agenda.
---------------------------------------------------------------------------

    These issues were discussed at length by and among the members of
the Proxy Working Group. In particular, the Proxy Working Group
considered the heightened problems that investment companies face
because of their disproportionately large retail shareholder base. In
addition, the Proxy Working Group reviewed the types of issues often
presented to shareholders of investment companies, and noted that such
companies often do not include other ``routine'' matters on their
ballot,

which would allow broker discretionary voting for quorum purposes.
    The Proxy Working Group reviewed the materials submitted by the ICI
and other representatives of investment companies concerning the
difficulties such companies would have if they were subject to the
amendment to Rule 452 making director elections ``non-routine.''
Additionally, the Proxy Working Group reviewed and considered the fact
that investment companies are subject to regulation under the
Investment Company Act of 1940 (which also regulates shareholder
participation in key decisions affecting such regulated funds), while
operating companies are not subject to this Act.
    The Proxy Working Group also had a number of discussions about the
difficulties faced by smaller issuers, and recognizes that smaller
issuers may be subject to some of the very same problems that
investment companies are subject to, including a high percentage of
shares held by ``retail'' investors, and an increased cost in obtaining
a quorum as a result of the proposed changes to Rule 452. There was
considerable concern and discussion about the potential problems facing
smaller issuers as a result of the potential rule change, as well as
discussion about the similarities and differences between smaller
operating companies and investment companies.
    Ultimately, the Working Group concluded that the unique regulatory
regime governing investment companies made such companies sufficiently
different from operating companies (regardless of size) that it was
appropriate to treat such companies differently. Accordingly, the Proxy
Working Group determined to amend its initial recommendation to the
NYSE with respect to Rule 452 to recommend that such changes to Rule
452 not apply to any company registered under the Investment Company
Act of 1940.

Conclusion

    In light of the recommendations of the Proxy Working Group and
based on the NYSE's own conclusion that the election of directors
should no longer be deemed to be a ``routine matter,'' the NYSE
proposes to amend NYSE Rule 452, and corresponding NYSE Listed Company
Manual Section 402.08, to eliminate broker discretionary voting for the
election of directors, but to except from that amendment companies
registered under the Investment Company Act of 1940.

Effective Date

    The proposed amendment will be applicable to proxy voting for
shareholder meetings held on or after January 1, 2010. Notwithstanding
the foregoing, in the event the proposed amendment is not approved by
the Commission until after August, 31, 2009, the effective date shall
be delayed to a date which is at least four months after the approval
date, and which does not fall within the first six months of the
calendar year. In addition, in any case the proposed amendment will not
apply to a meeting that was originally scheduled to be held prior to
the effective date but was properly adjourned to a date on or after the
effective date.

Material Amendments to Investment Contracts

    In addition to the current 18 specific actions set out in
Supplementary Material .11 to Rule 452, the Exchange has long
interpreted Rule 452 to preclude member organizations from voting
without instructions in certain other situations, including on any
material amendment to the investment advisory contract with an
investment company.\10\
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    \10\ See Exchange Act Release No. 30697 (May 13, 1992) (SR-NYSE-
1992-05).
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    In addition, in 2005, the NYSE published an interpretation,\11\
pursuant to a request from the SEC's Trading and Markets [sic] \12\
Investment Management, that provided that any proposal to obtain
shareholder approval of an investment company's investment advisory
contract with a new investment adviser, which approval is required by
the Investment Company Act of 1940, as amended (the ``1940 Act''), and
the rules thereunder, will be deemed to be a ``matter which may affect
substantially the rights or privileges of such stock'' for purposes of
Rule 452 so that a member organization may not give a proxy to vote
shares registered in its name absent instruction from the beneficial
holder of the shares. As a result, for example, a member organization
may not give a proxy to vote shares registered in its name, absent
instruction from the beneficial holder of the shares, on any proposal
to obtain shareholder approval required by the 1940 Act of an
investment advisory contract between an investment company and a new
investment adviser due to an assignment of the investment company's
investment advisory contract, including an assignment caused by a
change in control of the investment adviser that is party to the
assigned contract.
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    \11\ See Exchange Act Release No. 52569 (November 6, 2005) [sic]
(SR-NYSE-2005-61). The Commission notes that the Release was dated
October 6, 2005.
    \12\ The Commission notes that the correct reference is to the
Commission's Division of Investment Management, as stated in the
Form 19b-4.
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    The NYSE proposes to amend Rule 452 to specifically codify these
interpretations.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is
the requirement under Section 6(b)(5) \13\ that an exchange have rules
that are designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market
and, in general, to protect investors and the public interest.
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    \13\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act.

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

    Comment letters received on the proposed amendments are discussed
above.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (a) By order approve the proposed rule change, or
    (b) Institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as modified by Amendment No. 4, 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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2006-92 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2006-92. This file
number should be included on the subject line if e-mail 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 inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office 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-NYSE-2006-92 and should be
submitted on or before March 27, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-4754 Filed 3-5-09; 8:45 am]

BILLING CODE 8011-01-P