[Federal Register Volume 77, Number 94 (Tuesday, May 15, 2012)]
[Rules and Regulations]
[Pages 28493-28495]
[FR Doc No: 2012-11632]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2005-0253; FRL-9346-8]
RIN 2070-ZA16

Propylene Oxide; Tolerance Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is establishing the tree nut crop group tolerance and
separate tolerances on pistachio and pine nuts for both the fumigant
propylene oxide and the reaction product from the use of propylene
oxide, known as propylene chlorohydrin, to cover all registered uses on
raw and processed nuts. Also, in accordance with current Agency
practice, EPA is making minor revisions to tolerance expressions for
propylene oxide and propylene chlorohydrin.

DATES: This regulation is effective May 15, 2012. Objections and
requests for hearings must be received on or before July 16, 2012, and
must be filed in accordance with the instructions provided in 40 CFR
part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2005-0253. All documents in the
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket Facility telephone number is (703)
305-5805.

FOR FURTHER INFORMATION CONTACT: Joseph Nevola, Pesticide Re-evaluation
Division (7508P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; 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.
Potentially affected entities may include, but are not limited to:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed under FOR FURTHER INFORMATION
CONTACT.

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

    You may access a frequently updated electronic version of 40 CFR
part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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

    Under the Federal Food, Drug, and Cosmetic Act (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-
2005-0253 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 July 16, 2012. Addresses for
mail and hand delivery of objections and hearing requests are provided
in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing that does not contain any CBI for inclusion in the public
docket. Information not marked confidential pursuant to 40 CFR part 2
may be disclosed publicly by EPA without prior notice. Submit a copy of
your non-CBI objection or hearing request, identified by docket ID
number EPA-HQ-OPP-2005-0253, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave.
NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).

Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is<PHONE_NUMBER>.

II. Background

A. What action is the agency taking?

    In the Federal Register of December 21, 2011 (76 FR 79146) (FRL-
9329-8), EPA issued a proposed rule to establish specific tolerances,
and make minor revisions to tolerance expressions and specific
tolerance nomenclatures for the fumigant propylene oxide and the
reaction product from the use of propylene oxide, known as propylene
chlorohydrin. Also, the proposed rule of December 21, 2011 provided a
60-day comment period which invited public comment for consideration.
    In this final rule, in order to cover all registered uses on raw
and processed nuts, EPA is establishing in 40 CFR 180.491(a)(1)
tolerances for propylene oxide at 300 ppm on nut, pine; nut, tree,
group 14; and pistachio; and in 40 CFR 180.491(a)(2) tolerances for
propylene chlorohydrin at 10.0 ppm on nut, pine; nut, tree, group 14;
and pistachio. Also, in accordance with current Agency practice, EPA is
making minor revisions to tolerance expressions for propylene oxide and
propylene chlorohydrin.
    However, the proposed tolerance terminology changes in 40 CFR
180.491(a)(1) and (a)(2) for crop group 19 (each from dried to dried
leaves) would have excluded a variety of herbs and spices in crop group
19 that are not leaves, such as pepper or poppy. Therefore, EPA has
decided not to amend the current tolerance terminologies in 40 CFR
180.491(a)(1) for ``herbs and spices, group 19, dried'' and in 40 CFR
180.491(a)(2) for ``herbs and spices, group 19, dried, except basil.''
    EPA is finalizing these tolerance actions in order to implement the
tolerance recommendations made in the Reregistration Eligibility
Decision (RED) for propylene oxide to establish a tree nut crop group
to address the lack of a tolerance for registered uses on raw nuts and
conform the existing tolerance on ``nutmeat, processed, except
peanuts'' with current Agency commodity terms. As part of the RED and
tolerance reassessment processes, EPA is required to determine whether
each of the amended tolerances meets the safety standard of the Federal
Food, Drug, and Cosmetic Act (FFDCA). The safety finding determination
of ``reasonable certainty of no harm'' is discussed in detail in each
RED. REDs recommend the implementation of certain tolerance actions,
including modifications, to reflect current use patterns, to meet
safety findings and change commodity names and groupings in accordance
with new EPA policy. Printed copies of many REDs may be obtained from
EPA's National Service Center for Environmental Publications (EPA/
NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone number: 1-
800-490-9198; fax number: 1-513-489-8695; Internet at http://www.epa.gov/ncepihom and from the National Technical Information
Service (NTIS), 5285 Port Royal Rd., Springfield, VA 22161; telephone
number: 1-800-553-6847 or<PHONE_NUMBER>; Internet at http://www.ntis.gov. Electronic copies of REDs are available on the Internet
at http://www.regulations.gov and http://www.epa.gov/pesticides/reregistration/status.htm.
    In response to the proposed rule published in the Federal Register
of December 21, 2011 (76 FR 79146), EPA received one comment during the
60-day public comment period, as follows:
    Comment by private citizen. The commenter expressed concerns about
pesticides on food and that only zero tolerance levels should be
acceptable.
    Agency response. The commenter did not take issue with the Agency's
specific conclusions to establish certain tolerances for propylene
oxide and propylene chlorohydrin. Also, the commenter did not refer to
any specific studies which pertain to those conclusions. The Agency has
not changed its previous determination that the tolerances in question
are safe and is therefore not making any changes in response to this
comment.

B. What is the agency's authority for taking this action?

    EPA may issue a regulation establishing, modifying, or revoking a
tolerance under FFDCA section 408(e). In this final rule, EPA is
establishing tolerances to implement the tolerance recommendations made
in the RED for propylene oxide.

C. When do these actions become effective?

    As stated in the DATES section, this regulation is effective on the
date of publication in the Federal Register. In this final rule, EPA is
establishing specific tolerances and making minor revisions to
tolerance expressions for propylene oxide and propylene chlorohydrin.

III. 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.
    The Codex has not established a MRL for propylene oxide or
propylene chlorohydrin.

IV. Statutory and Executive Order Reviews

    In this final rule, EPA establishes tolerances under FFDCA section
408(e). The Office of Management and Budget (OMB) has exempted this
type of action (i.e., establishment of a tolerance) from review under
Executive Order 12866, entitled Regulatory Planning and Review (58 FR
51735, October 4, 1993). Because this rule has been exempted from
review under Executive Order 12866 due to its lack of significance,
this rule is not subject to Executive Order 13211, entitled Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does
not contain any information collections subject to OMB approval under
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose
any enforceable duty or contain any unfunded mandate as described under
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L.
104-4). Nor does it require any special considerations as required by
Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994); or OMB review or any other
Agency action under Executive Order 13045, entitled Protection of
Children from Environmental Health Risks and Safety Risks (62 FR 19885,
April 23, 1997). This action does not involve any technical standards
that would require Agency consideration of voluntary consensus
standards pursuant to section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (NTTAA), Public Law 104-13, section 12(d)
(15 U.S.C. 272 note). Pursuant to

the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency
previously assessed whether establishment of tolerances, exemptions
from tolerances, raising of tolerance levels, or expansion of
exemptions might significantly impact a substantial number of small
entities and concluded that, as a general matter, these actions do not
impose a significant economic impact on a substantial number of small
entities. This analysis for tolerance establishments and modifications
was published on May 4, 1981 (46 FR 24950), and was provided to the
Chief Counsel for Advocacy of the Small Business Administration. Taking
into account this analysis and available information concerning the
pesticide involved in this final rule, the Agency hereby certifies that
this final rule will not have a significant economic impact on a
substantial number of small entities. In addition, the Agency has
determined that this action will not have 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, as specified in Executive Order 13132,
entitled Federalism (64 FR 43255, August 10, 1999). Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive order to include regulations that have ``substantial direct
effects on the 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.'' This final
rule directly regulates growers, food processors, food handlers, and
food retailers, not States. This action does not alter the
relationships or distribution of power and responsibilities established
by Congress in the preemption provisions of FFDCA section 408(n)(4).
For these same reasons, the Agency has determined that this rule does
not have any ``tribal implications'' as described in Executive Order
13175, entitled Consultation and Coordination with Indian Tribal
Governments (65 FR 67249, November 9, 2000). Executive Order 13175,
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes.'' This rule will not have
substantial direct effects on tribal governments, 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, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.

V. Congressional Review Act

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

List of Subjects in 40 CFR Part 180

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

    Dated: April 27, 2012.
Steven Bradbury,
Director, 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. Section 180.491 is amended by revising paragraphs (a)(1) and (a)(2)
to read as follows:

Sec.  180.491  Propylene oxide; tolerances for residues.

    (a) General. (1) Tolerances are established for residues of the
fumigant propylene oxide, including its metabolites and degradates, in
or on the commodities in the table in this paragraph. Compliance with
the tolerance levels specified in this paragraph is to be determined by
measuring only propylene oxide, when used as a postharvest fumigant, in
or on the commodity.

------------------------------------------------------------------------
                                                               Parts per
                          Commodity                              million
------------------------------------------------------------------------
Cacao bean, cocoa powder.....................................        200
Cacao bean, dried bean.......................................        200
Fig..........................................................        3.0
Garlic, dried................................................        300
Grape, raisin................................................        1.0
Herbs and spices, group 19, dried............................        300
Nut, pine....................................................        300
Nut, tree, group 14..........................................        300
Nutmeat, processed, except peanuts...........................        300
Onion, dried.................................................        300
Pistachio....................................................        300
Plum, prune, dried...........................................        2.0
------------------------------------------------------------------------

     (2) Tolerances are established for residues of the reaction
product, propylene chlorohydrin, including its metabolites and
degradates, in or on the commodities in the table in this paragraph.
Compliance with the tolerance levels specified in this paragraph is to
be determined by measuring only the sum of propylene chlorohydrin (1-
chloro-2-propanol), and its isomer 2-chloro-1-propanol, calculated as
the stoichiometric equivalent of propylene chlorohydrin (1-chloro-2-
propanol), that results from the use of propylene oxide as a
postharvest fumigant, in or on the commodity.

------------------------------------------------------------------------
                                                               Parts per
                          Commodity                              million
------------------------------------------------------------------------
Basil, dried leaves..........................................       6000
Cacao bean, cocoa powder.....................................       20.0
Cacao bean, dried bean.......................................       20.0
Fig..........................................................        3.0
Garlic, dried................................................       6000
Grape, raisin................................................        4.0
Herbs and spices, group 19, dried, except basil..............       1500
Nut, pine....................................................       10.0
Nut, tree, group 14..........................................       10.0
Nutmeat, processed, except peanuts...........................       10.0
Onion, dried.................................................       6000
Pistachio....................................................       10.0
Plum, prune, dried...........................................        2.0
------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-11632 Filed 5-14-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 31 (Tuesday, February 15, 2022)]
[Notices]
[Pages 8620-8621]
[FR Doc No: 2022-03153]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34499; 812-15273]

DoubleLine ETF Trust, et al.

February 9, 2022.
AGENCY:  Securities and Exchange Commission (``Commission'').

ACTION:  Notice.

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    Notice of an application under section 6(c) of the Investment
Company Act of 1940 (the ``Act'') for an exemption from sections
2(a)(32), 5(a)(1) and 22(d) of the Act and rule 22c-1 under the Act and
under sections 6(c) and 17(b) of the Act for an exemption from sections
17(a)(1) and 17(a)(2) of the Act.

Summary of Application:  Applicants request an order (``Order'') that
permits: (a) ActiveShares ETFs (as described in the Reference Order (as
defined below)) to issue shares (``Shares'') redeemable in large
aggregations only (``creation units''); (b) secondary market
transactions in Shares to occur at negotiated market prices rather than
at net asset value; and (c) certain affiliated persons of an
ActiveShares ETF to deposit securities into, and receive securities
from, the ActiveShares ETF in connection with the purchase and
redemption of creation units. The relief in the Order would incorporate
by reference terms and conditions of the same relief of a previous
order granting the same relief sought by applicants, as that order may
be amended from time to time (``Reference Order'').\1\
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    \1\ Precidian ETFs Trust, et al., Investment Company Act Rel.
Nos. 33440 (April 8, 2019) (notice) and 33477 (May 20, 2019)
(order).

Applicants:  DoubleLine ETF Trust, DoubleLine ETF Adviser LP and
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Foreside Fund Services, LLC.

Filing Dates:  The application was filed on October 15, 2021, and
amended on December 30, 2021, January 31, 2022 and February 2, 2022.

Hearing or Notification of Hearing:  An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing on any application by emailing
the Commission's Secretary at [email protected] and serving
applicants with a copy of the request by

email, if an email address is listed for the relevant applicant below,
or personally or by mail, if a physical address is listed for the
relevant applicant below. Hearing requests should be received by the
Commission by 5:30 p.m. on March 7, 2022, and should be accompanied by
proof of service on applicants, in the form of an affidavit or, for
lawyers, a certificate of service. Pursuant to rule 0-5 under the Act,
hearing requests should state the nature of the writer's interest, any
facts bearing upon the desirability of a hearing on the matter, the
reason for the request, and the issues contested. Persons who wish to
be notified of a hearing may request notification by emailing the
Commission's Secretary.

ADDRESSES:  The Commission: [email protected]. Applicants: John
J. O'Brien, Morgan Lewis & Bockius LLP, [email protected];
Earl A. Lariscy, DoubleLine ETF Trust, [email protected].

FOR FURTHER INFORMATION CONTACT:  Christopher D. Carlson, Senior
Counsel, or Trace W. Rakestraw, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION:  For applicants' representations, legal
analysis, and conditions, please refer to applicants' amended
application, dated February 2, 2022, which may be obtained via the
Commission's website by searching for the file number, using the
Company name box, at http://www.sec.gov/search/search.htm, or by
calling<PHONE_NUMBER>.

    For the Commission, by the Division of Investment Management,
under delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-03153 Filed 2-14-22; 8:45 am]
BILLING CODE 8011-01-P


    Review Report for Oils, Palm Kernel (CASRN 8023-79-8) Partial Exemption

                                   May 2014

Coalition of Corn Refiners Association (CRA), the National Oilseed Processors Association (NOPA), and the Institute of Shortening and Edible Oils (ISEO)
                   Docket Identifier:  EPA-HQ-OPPT-2012-0221

Note: Supporting petition information for bentonite, acid-leached (CASRN 70131-50-9) and 1,3- propanediol (CASRN 504-63-2) are addressed in separate supporting review reports.

Summary of Decision:  The U.S. Environmental Protection Agency (hereinafter "EPA" or the "Agency") has determined that there is a low current interest in the processing and use information collected under the Chemical Data Reporting (CDR) rule (see 40 CFR Part 711) for oils, palm kernel (hereinafter referred to as "palm kernel oils") (CASRN 8023-79-8).  This determination is based on the totality of information on the chemical substance, including an evaluation of the considerations listed in 40 CFR 7l1.6(b)(2)(ii): 1) Consideration A: Current CDR information suggests that at least one site would have a production volume sufficient to trigger the need to report processing and use information under the 2016 CDR (25,000 pound threshold); 2) Consideration B: EPA noted the similarity of palm kernel oils to coconut oils, which are already on the CDR partial exemption list, and the U.S. Food and Drug Administration (FDA) acceptance of the safety of palm kernel oils when used to prepare a cocoa butter substitute approved for use as a food additive.  Adequate data was unavailable on environmental toxicity; however, EPA noted the acceptance of coconut oils as an analog for palm kernel oils and the current presence of coconut oils on the CDR partial exemption list.  Concerning environmental fate, EPA determined from submitted data that palm kernel oils have the potential to biodegrade, will not be persistent in the environment, and have a low potential for bioconcentration or bioaccumulation in aquatic organisms based on modeling data; 3) Consideration C: EPA is not aware of any currently existing unmet information needs for CDR processing and use information for this chemical substance; 4) Consideration D: The availability of complementary risk screening information was not clearly characterized in the petition for this chemical; 5) Consideration E: Other recent processing and use information is available in the European Chemical Agency's (ECHA's) database, and although it is for use of products in Europe and not the United States, it provides an indication of uses that may occur in the United States; and 6) Consideration F: EPA is unaware of any specific actions that have already been taken by other agencies or authorities to manage risks relating to this substance.

A direct final rule to add palm kernel oils to the list of chemicals substances in 40 CFR 711.6(2)(b)(iv) will be published in the Federal Register.  If the level of interest in the CDR processing and use information for this chemical substance were to change after final listing, EPA may reevaluate the listing decision and pursue amendment of the listing as appropriate.

Persons submitting information in accordance with the CDR rule can still report processing and use information even if a chemical substance is partially exempt, so that their chemicals substances may be considered for safer substitute analyses.

Background:  EPA received a petition from Keller and Heckman on behalf of a coalition of the Corn Refiners Association (CRA), the National Oilseed Processors Association (NOPA), and the Institute of Shortening and Edible Oils (ISEO) (hereinafter the "petitioner"), requesting that palm kernel oils (CASRN 8023-79-8) be added to the 40 CFR 711.6(b)(2)(iv) list of specific chemical substances that are exempt from the reporting requirements of 40 CFR 711.15(b)(4) (i.e., exempt from requirements to report industrial processing and use and commercial/consumer use information).  The chemical substances already included on this "partial exemption" list are substances for which EPA has previously determined that there is a low current interest in the CDR processing and use information.  However, as stated in the preamble to the Inventory Update Reporting Amendments (IURA) rule promulgated on January 7, 2003, "...the need for processing and use information under IURA changes over time.  The inclusion of a chemical substance under this partial exemption is not based on the potential risks of a chemical.  This partial exemption is solely intended to provide a tool to assist the Agency in better managing the collection of processing and use information..." and is also "...based on the Agency's current assessment of the need for collecting IURA processing and use information."   Additionally, the preamble states, "[i]n determining whether there is low current interest in IUR processing and use information related to a specific chemical substance, EPA will look to the specific circumstances surrounding the chemical in question, and may use one or more of the considerations identified below, and/or considerations not identified below, to make an informed decision." The considerations used by EPA in reviewing this petition and an analysis of how those considerations relate to palm kernel oils are set forth below.

Discussion:  EPA considered information submitted with the petition, as well as other information including, but not limited to:  whether the petitioned chemical substance is listed on the Emergency Planning and Community Right to Know Act, Section 313 list of Toxic Chemicals and thus is reportable to Toxics Release Inventory (TRI); 2012 CDR submissions for the chemical substance; evaluations available through the EPA's Integrated Risk Information System (IRIS), the International Agency for Research on Cancer (IARC), the Organisation for Economic Co-operation and Development's (OECD)'s High Production Volume (HPV) Screening Information Data Set (SIDS) program, or the EPA's HPV Challenge Program; whether the substance is subject to other regulatory programs administered by EPA; and other information researched by EPA to supplement the petition.

The petitioner provided information concerning palm kernel oils from a variety of sources and linked it to specific considerations cited in 40 CFR 711.6(b)(2)(ii).

Consideration A:  Whether the chemical qualifies or has qualified in past IUR collections for the reporting of the information described in 40 CFR 711.15(b)(4).

The petitioner provided information to show that that palm kernel oils (CASRN 8023-79-8) were reported in the 2006 IUR.  EPA reviewed the 2012 CDR data for palm kernel oils and found that three companies reported domestically manufacturing and/or importing palm kernel oils with a nationally aggregated production volume of between 50,000,000 and 100,000,000 lb in 2011.

EPA has concluded that at least one manufacturing site would likely have a production volume sufficient to trigger the need to report processing and use information under the 2016 CDR (25,000 lb threshold). Thus, EPA concludes that the other considerations are ripe for evaluation.

Consideration B:  The chemical substance's chemical and physical properties or potential for persistence, bioaccumulation, health effects, or environmental effects (considered independently or together).

The major components of palm kernel oils (CASRN 8023-79-8) are saturated and unsaturated glycerides:  C12 (lauric) saturated alkyl chains (48%), C14 saturated alkyl chains (17%) and C18 unsaturated (oleic) alkyl chains with one double bond (15%).  The petitioner described glycerides, C8-18 and C18-unsaturated (CASRN 67701-28-4) as a substance identical to palm kernel oils.  EPA accepts glycerides, C8-18 and C18-unsaturated (CASRN 67701-28-4) as a suitable analogue for palm kernel oils because it includes the major saturated and unsaturated components of palm kernel oils esterified to a glycerol backbone.  The petitioner provided data summaries from ECHA's database for substances registered under the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH; Regulation European Commission (EC) No. 1907/2006) regulation for glycerides, C8-18 and C18-unsaturated (CASRN 67701-28-4).

The petitioner inferred that palm kernel oils were similar to coconut oils (CASRN 8001-31-8), which are already included on the partial exemption list at 40 CFR 711.6(b)(2)(iv), and should therefore have the same partial exemption.  EPA agrees that palm kernel oils and coconut oils are similar because the alkyl chain length composition of palm kernel oils and the degree of unsaturation are quite similar to coconut oils, although coconut oils are somewhat richer in C8-10 chains (15%) than palm kernel oils (8%), and palm kernel oils have more unsaturated chain content (17%) than coconut oils (8%).  Notwithstanding these differences, EPA concluded that coconut oils (CASRN 8001-31-8) can be considered a valid analogue for palm kernel oils.

Human Health Effects.
While EPA found the summaries referenced by the petitioner to be inadequate for evaluation of hazards, EPA took into account the inclusion of the similar coconut oils in the partial exemption list and its accepted use as a food additive.  The FDA at 21 CFR 172.861 permits a cocoa butter substitute from coconut oil, palm kernel oil, or both oils to be used as a food additive under specific conditions. EPA considered the safety determination made by FDA in listing palm kernel oil as a direct food additive sufficient for informing potential human health concerns and therefore considers palm kernel oils a low hazard to human health.

Environmental Effects. The ecotoxicity data in the ECHA dissemination database were limited and did not meet the EPA and OECD test guidelines.  EPA was unable to identify adequate substitute data on environmental toxicity.  Because of the inadequacy of the available ecological toxicity information, the environmental hazard of palm kernel oils could not be characterized.  However, EPA has accepted coconut oils as an analog for palm kernel oils.  In the partial exemption list established in 2003, EPA deemed coconut oils to be of low current interest based on its presence on a list of chemicals excluded from the HPV Challenge Program.  The list took into consideration chemical substances' "chemical and physical properties or potential for persistence, bioaccumulation, health effects, or environmental effects (considered independently or together)," and "the Agency was able to utilize these lists, along with the Agency's current knowledge and understanding of the individual chemical's structure, properties, indications of hazards and potential exposures, to inform its determination that there is a low current interest in the IURA processing and use information for these specific chemicals." Therefore, EPA considers the partial exemption of coconut oils as sufficient for inferring that palm kernel oils present a low hazard to the environment.

Environmental Fate. The petitioner submitted ECHA data summaries for glycerides, C8-18 and C18-unsaturated, which included information on the physical properties of palm kernel oils and a biodegradation summary on coconut oil-related substances. EPA determined that these data informed the potential for palm kernel oils to biodegrade and concluded that palm kernel oils will not be persistent in the environment.  The petitioner also reported an estimated bioaccumulation factor (BAF); however, the petitioner actually reported the estimated bioconcentration factor (BCF), not the bioaccumulation factor (BAF).  EPA accepted the BCF value and used the BCF/BAF model to predict a BAF value. EPA determined that the estimated BCF and BAF values suggest that palm kernel oils have a low potential for bioconcentration or bioaccumulation in aquatic organisms.

Although the data provided by the petitioner on palm kernel oils and the analogues are limited or incomplete, EPA accepts FDA's determination that palm kernel oils may be used as a cocoa butter substitute food additive and the existing CDR partial exemption for coconut oils, a recognized analog of palm kernel oils, as sufficient evidence to address human health and environmental toxicity concerns.  EPA accepts that submitted biodegradation and bioconcentration data as well as modeled bioaccumulation data are sufficient to address environmental fate concerns.  Taken together, this information is sufficient to weigh in favor of partially exempting palm kernel oils from CDR reporting based on human health and environmental concerns covered under consideration B.

Consideration C:  The information needs of EPA, other federal agencies, tribes, states, and local governments, as well as members of the public.

The petitioner stated that palm kernel oils (CASRN 8023-79-8) have not been the "subject of or considered for information collection requirements by EPA under TSCA (other than the TSCA IUR), the Interagency Testing Committee (ITC) or the Agency for Toxic Substances and Disease Registry (ATSDR).  Palm kernel oils "[have] not been nor [are they] the subject of any proposed or final regulation by the EPA."  The petitioner stated that they are not aware of any unmet information needs of the EPA, other federal agencies, tribes, states, local governments, or members of the public, in light of FDA regulatory clearances currently available for palm kernel oils which acknowledge that its safe use in food applications and the extensive data on the analogue glycerides, C8-18 and C18-unsaturated (CASRN 67701-28-4) published on the ECHA database.  The petitioner asserts that there is sufficient information available, and there have been no previous information requests.

EPA is not aware of any currently existing unmet information needs respecting the processing and use of palm kernel oils and agrees that recent processing and use information for all three chemicals is available to government agencies and the public on the ECHA website. Although the uses in Europe may not be exactly the same as the uses in the United States, EPA believes they can provide an indication of potential uses on which to base further analysis, should the chemical substance be of interest.  Overall, EPA regards Consideration C as weighing in favor of establishing a partial exemption for this chemical substance.

Consideration D:  The availability of other complementary risk screening information.

The petitioner included a table which provided the status of the petitioned substances on the European Commission Annex II list of low risk substances, exemption determinations by the European Union for the REACH program, status under the voluntary EPA High Production Volume (HPV) Challenge Program and safety determinations for low toxicity pesticide inerts.  But, no discussion was provided linking the status to the availability of recent risk screening information.  Therefore, it is unclear why the petitioner believes this table relates to Consideration D, the availability of other complementary risk screening information.  EPA notes that the fact that the petitioned substances were not present on most of these lists provided no evidence of the availability of risk screening information nor were explanations given of the significance of the chemicals not being listed on the two European lists.  The petitioner indicated that palm kernel oils were sponsored through the Global HPV Initiative but provided no evidence that risk screening information is available through that program.  EPA notes that the chemical is listed by OECD as "unsponsored."

EPA determined that the petition did not provide evidence that complementary risk screening information is available for palm kernel oils. However, when considered in combination with the other substance-specific factors that weigh in favor of granting a partial reporting exemption (e.g., the evidence that the potential human health effects and/or environmental effects would be low) EPA did not regard this consideration as sufficiently weighty to alter the overall weight of evidence in favor of establishing a partial reporting exemption for this chemical substance.

Consideration E:  The availability of comparable processing and use information.

While the petitioner indicated that palm kernel oils are predominantly used in food (which is not a use subject to TSCA), the information they provided from the ECHA database indicated a broader range of uses. The petitioner asserted that TSCA-regulated exposures are comparable to, or less significant than, the food-use exposures associated with these substances, which have already been shown to be "safe."  The petitioner included a list of uses obtained from ECHA's database.

The uses in the ECHA database are for the European Union and indicate that palm kernel oils may have broader use in Europe than in the United States.  Data from the non-confidential 2012 CDR database identified the following industrial uses:  soap, cleaning compound, and toilet preparation manufacturing; food, beverage, and tobacco product manufacturing; and basic organic chemical manufacturing.  The following consumer and commercial uses were also identified:  laundry and dishwashing products as well as commercial use in other cleaning and furnishing products and non-TSCA uses.

As indicated under Consideration B, palm kernel oils and coconut oils are similar because the alkyl chain length composition of palm kernel oils and the degree of unsaturation are quite similar to coconut oils.  Coconut oils, which are already included on the list of partially exempt chemical substances at 40 CFR 711.6(b)(2)(iv), had an aggregated production volume on the 2012 CDR of between 250,000,000 and 500,000,000 lb while palm kernel oils had an aggregated production volume of between 50,000,000 and 100,000,000 lb.

Overall, the relevance of Consideration E to the disposition of the petition was mixed.  EPA agrees that other recent processing and use information, available from ECHA is sufficiently comparable to CDR processing and use information to favor granting a partial reporting exemption for this chemical substance.  While the ECHA information may not be completely representative of use in the United States, EPA concluded in this case (in view of all relevant considerations) that the ECHA information is a reasonable surrogate indicator of possible United States processing and use.  EPA also recognizes that the ECHA database does not specify the amounts of palm kernel oils to each use.  But when considered in combination with the other substance-specific factors that weigh in favor of granting a partial reporting exemption (e.g., the evidence that the potential human health effects and/or environmental effects would be low) EPA does not regard the lack of use-by-use volume information as sufficiently weighty to alter its overall decision to establish a partial reporting exemption for this substance.

Consideration F: Whether the potential risks of the chemical substance are adequately managed by EPA or another agency or authority.

The petitioner generally indicated that the manufacturing and use of palm kernel oils primarily falls within the jurisdiction and authority of the FDA.  The petitioner also stated that EPA, the Occupational Safety and Health Administration (OSHA), the National Institute for Occupational Safety and Health (NIOSH), and the Consumer Product Safety Commission (CPSC) regulate the manufacture and use of palm kernel oils.  However, the petitioner did not specifically identify which uses of palm kernel oils are regulated by the foregoing governmental bodies or regulations, except for FDA [FDA Regulation at 21 CFR 172.861 - Multipurpose Additives (Based on the listing for Cocoa Butter Substitute from Coconut Oils, Palm kernel oils or Both, 85665-33-4)].

Overall, although the petition included the general claim that this substance is already "controlled adequately under other regulatory regimes," it did not identify how any particular agency or authority was managing any particular risk relating to this substance, let alone how such risk management actions should bear on EPA's level of current interest in processing and use information.

EPA is unaware of any specific actions that have already taken by other agencies or authorities to manage risks relating to this substance.  However, given the evidence that the potential human health effects and/or environmental effects would be low, EPA does not therefore assume that this substance would likely be the subject of risk management actions in the future.  Thus in this case, EPA believes this consideration weighs neither in favor of nor against adding the substance to the CDR partial exemption list.


[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)]
[Notices]
[Page 12377]
[FR Doc No: 2018-05683]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP18-419-000]

Dominion Energy Cove Point LNG, LP; Notice of Technical
Conference

    Take notice that a technical conference will be held on Tuesday,
April 17, 2018 at 10:00 a.m. (Eastern Standard Time), in a room to be
designated at the offices of the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426.
    At the technical conference, the Commission staff and the parties
to the proceeding should be prepared to discuss all issues in this
proceeding as established in the March 5, 2018 Order.\1\
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    \1\ Dominion Energy Cove Point LNG, LP, 162 FERC 61,199 (2018).
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    Federal Energy Regulatory Commission conferences are accessible
under section 508 of the Rehabilitation Act of 1973. For accessibility
accommodations please send an email to [email protected] or call
toll free<PHONE_NUMBER> (voice) or<PHONE_NUMBER> (TTY), or send a fax
to<PHONE_NUMBER> with the required accommodations.
    All interested persons and staff are permitted to attend. For
further information please contact Alex Schroeder at<PHONE_NUMBER> or
email [email protected].

    Dated: March 15, 2018.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2018-05683 Filed 3-20-18; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 88, Number 237 (Tuesday, December 12, 2023)]
[Rules and Regulations]
[Pages 86048-86050]
[FR Doc No: 2023-27090]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0843]
RIN 1625-AA00

Safety Zone; Fireworks Display; Hood River, Hood River, Oregon

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
certain waters of the Columbia River. This action is necessary to
provide for the safety of life on these navigable waters near Hood
River, Oregon, during a fireworks display on December 31, 2023. This
regulation prohibits persons and vessels from entering the safety zone
unless authorized by the Captain of the Port Sector Columbia River or a
designated representative.

DATES: This rule is effective from 7:30 to 9 p.m. on December 31, 2023.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0843 in the search box and click ``Search.'' Next, in the Document
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
call or email Lieutenant Carlie Gilligan, Waterways Management
Division, Sector Columbia River, Coast Guard; telephone<PHONE_NUMBER>,
email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Columbia River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On August 15, 2023, the Hood River Fireworks, LLC notified the
Coast Guard that it will be conducting a fireworks display from 8 to
8:30 p.m. on December 31, 2023. The fireworks are to be launched from
Hood River Spit, approximately 1,000 feet south of the Columbia River
in Hood River, OR. In response, on November 2, 2023, the Coast Guard
published a notice of proposed rulemaking (NPRM) titled Safety Zone;
Fireworks Display; Hood River, Hood River, OR (88 FR 75244). There we
stated why we issued the NPRM and invited comments on our proposed
regulatory action related to this fireworks display. During the comment
period that ended December 4, 2023, we received 8 comments, that are
discussed in section IV below.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable because immediate action is needed to
respond to the potential safety hazards associated with the fireworks
display that will impact navigation along the Hood River.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Columbia River (COTP) has
determined that potential hazards associated with the fireworks to be
used in this December 31, 2023, display will be a safety concern for
anyone within a 1,000-foot radius of the barge. The purpose of this
rule is to ensure safety of vessels and the navigable waters in the
safety zone before, during, and after the scheduled event.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received eight comments on our NPRM published
November 2, 2023. Of them, six were in support of the proposed rule
while the remaining two were unrelated to the establishment of the
safety zone. There are no changes in the regulatory text of this rule
from the proposed rule in the NPRM.
    This rule establishes a safety zone from 7:30 to 9 p.m. on December
31, 2023. The safety zone will cover all navigable waters within 1,000
feet of the fireworks launch site in Hood River, OR. The duration of
the zone is intended to ensure the safety of vessels and these
navigable waters before, during, and after the scheduled 8 to 8:30 p.m.
fireworks display. No vessel or person will be permitted to enter the
safety zone without obtaining permission from the COTP or a designated
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 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. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866, as
amended by Executive Order 14094 (Modernizing Regulatory Review).
Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB).
    This regulatory action determination is based on the size,
location, duration and time of day of the regulated area. The safety
zone impacts approximately a 1,000-foot area at the intersection of the
Columbia and Hood Rivers and is not anticipated to exceed 1.5 hours in
duration. Thus, restrictions on vessel movement within that particular
area are expected to be minimal. Moreover, under certain conditions
vessels may still transit through the safety zone when permitted by the
COTP. The Coast Guard will issue a Notice to Mariners about the zone,
and the rule will allow vessels to seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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. The Coast Guard received no comments from the Small Business
Administration

on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b)
that this rule will not have a significant economic impact on a
substantial number of small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    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). 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.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the 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 have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does 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.

E. Unfunded Mandates Reform Act

    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. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
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 determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves a
safety zone lasting 1.5 hours that will prohibit entry within 1,000
feet of a launch site in Hood River, OR. It is categorically excluded
from further review under paragraph L60(a) of Appendix A, Table 1 of
DHS Instruction Manual 023-01-001-01, Rev. 1. 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.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section to coordinate protest activities so
that your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T13-0843 to read as follows:

Sec.  165.T13-0843  Safety Zone; Fireworks Display, Hood River, Hood
River, OR.

    (a) Location. The following area is a safety zone: All navigable
waters within 1,000 feet of a fireworks launch site in Hood River, OR.
The fireworks launch site will be at the approximate point of
45[deg]42'51.20'' N 121[deg]30'32.18'' W.
    (b) Definitions. As used in this section--
    Designated representative means a Coast Guard Patrol Commander,
including a Coast Guard coxswain, petty officer, or other officer
operating a Coast Guard vessel and a Federal, State, and local officer
designated by or assisting the Captain of the Port Columbia River
(COTP) in the enforcement of the safety zone.
    Participant means all persons and vessels registered with the event
sponsor as a participant in the fireworks display.
    (c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, all non-participants may not enter the safety
zone described in paragraph (a) of this section unless authorized by
the COTP or the COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's
representative by calling<PHONE_NUMBER> or the Sector Columbia River
Command Center on Channel 16 VHF-FM. Those in the safety zone must
comply with all lawful orders or directions given to them by the COTP
or the COTP's designated representative.
    (3) The COTP will provide notice of the regulated area through
advanced notice via broadcast notice to mariners and by on-scene
designated representatives.
    (d) Enforcement period. This section will be enforced from 7:30 to
9 p.m. on December 31, 2023. It will be subject to enforcement this
entire period unless the COTP determines it is no longer needed, in
which case the Coast Guard will inform mariners via Notice to Mariners.

    Dated: December 5, 2023.
J.W. Noggle,
Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2023-27090 Filed 12-11-23; 8:45 am]
BILLING CODE 9110-04-P


Revised Clean Air Interstate Rule PM2.5 Contribution Modeling for Minnesota U. S. Environmental Protection Agency Office of Air Quality Planning and Standards November 2005 1In addition to using corrected utility emissions in Minnesota, the revised 2010 Base Case also included updated ( lowered) emissions for a refinery in Delaware, based on comments received on the proposal to include Delaware and New Jersey in CAIR.

2Technical Support Document for the Final Clean Air Interstate Rule: Air Quality Modeling ( Docket No. OAR 2003 0053 2151).

3Clean Air Interstate Rule Emissions Inventory Technical Support Document ( Docket No. OAR 2003 0053 2047).

4Appendix N to 40 CFR Part 50.

5Modeled plus monitored nonattainment refers to those monitoring sites that are currently measuring nonattainment, using data for 2001 2003, and are also projected to be nonattainment in the 2010 Base Case.

6The contribution values are truncated at one place to the right of the decimal before they are compared to the significance criterion. For example, a contribution of 0.19 : g/ m3 is below the significance threshold.

1 EPA received a petition for reconsideration of the Clean Air Interstate Rule ( CAIR) that claimed that EPA's PM2.5 significant contribution analysis overstated the 2010 emissions from certain utilities in Minnesota and thereby overstated the contribution from Minnesota to PM2.5 nonattainment in other ( downwind) States. As described in the CAIR Notice of Reconsideration ( December 2005), EPA agreed to remodel the PM2.5 contributions from Minnesota using corrected utility emissions for this State. This modeling relied on the same PM2.5 modeling platform as EPA used for the final CAIR contribution modeling1, as described in the CAIR air quality modeling technical support document2 and the emissions inventory technical support document3. The revised Minnesota modeling analysis included model simulations using the Community Multiscale Air Quality ( CMAQ) model for a 2001 Base Year, a 2010 Base Case with the corrected emissions, and a 2010 run in which all anthropogenic emissions of sulfur dioxide and nitrogen oxides were removed from Minnesota ( i. e., Minnesota Zero Out Case). The CMAQ model predictions were used to determine PM2.5 concentrations at Federal Reference Method ( FRM) monitoring sites in the Eastern U. S. for the revised 2010 Base Case and Minnesota Zero Out Case. The projected PM2.5 concentrations were calculated using the same methodology as EPA used for the CAIR PM2.5 contribution modeling, which is referenced in the air quality modeling TSD. The PM2.5 values were truncated after two places to the right of the decimal in a manner consistent with the calculation methods for annual average PM2.5 design values used to determine attainment/ nonattainment of the annual PM2.5 National Ambient Air Quality Standard4. EPA then determined the contributions to PM2.5 at each " modeled plus monitored" nonattainment site5 by calculating the difference in PM2.5 between the 2010 Base Case and the Zero Out Case. EPA's CAIR significant contribution criterion for PM2.5 is 0.2 : g/ m3 such that contributions of 0.2 : g/ m3 or greater are significant6. 2 The revised contributions from Minnesota to PM2.5 nonattainment in other States are provided by county in Table 1 along with the corresponding 2010 Base Case and Minnesota Zero Out Case PM2.5 concentrations used to calculate the contributions. Note that, for counties with more than one modeled plus monitored nonattainment site, the data for the site with the highest contribution from Minnesota are shown in the table. The results of the revised Minnesota modeling show that emissions in Minnesota make a significant contribution to PM2.5 nonattainment in Cook County, Illinois.

Table 1. Revised 2010 Base Case " modeled plus monitored" PM2.5 nonattainment concentrations (: g/ m3), Minnesota Zero Out concentrations, and the contributions from emissions in Minnesota to PM2.5 nonattainment in other States.

State County Revised 2010 Base PM2.5 Revised 2010 Minnesota Zero Out PM2.5 Revised Contribution to PM2.5 Alabama Jefferson Co 18.57 18.55 0.02 Alabama Russell Co 16.17 16.16 0.01 Delaware New Castle Co 16.53 16.51 0.02 District of Columbia District of Columbia 15.83 15.82 0.01 Georgia Bibb Co 16.26 16.26 0.00 Georgia Clarke Co 16.38 16.38 0.00 Georgia Clayton Co 17.39 17.39 0.00 Georgia Cobb Co 16.57 16.56 0.01 Georgia DeKalb Co 16.75 16.74 0.01 Georgia Floyd Co 16.87 16.86 0.01 Georgia Fulton Co 18.02 18.01 0.01 Georgia Walker Co 15.43 15.42 0.01 Illinois Cook Co 16.60 16.40 0.20 Illinois Madison Co 16.66 16.54 0.12 Illinois St. Clair Co 16.24 16.12 0.12 Indiana Clark Co 16.51 16.47 0.04 Indiana Dubois Co 15.73 15.69 0.04 Indiana Lake Co 15.33 15.15 0.18 Indiana Marion Co 16.83 16.74 0.09 Indiana Vanderburgh Co 15.54 15.48 0.06 Kentucky Fayette Co 15.95 15.92 0.03 Kentucky Jefferson Co 16.28 16.24 0.04 Maryland Anne Arundel Co 15.25 15.23 0.02 Maryland Baltimore City 16.05 16.03 0.02 Michigan Wayne Co 17.66 17.56 0.10 State County Revised 2010 Base PM2.5 Revised 2010 Minnesota Zero Out PM2.5 Revised Contribution to PM2.5 3 New York New York Co 16.18 16.16 0.02 North Carolina Catawba Co 15.48 15.47 0.01 North Carolina Davidson Co 15.76 15.76 0.00 Ohio Butler Co 16.45 16.41 0.04 Ohio Cuyahoga Co 16.75 16.69 0.06 Ohio Franklin Co 16.99 16.94 0.05 Ohio Hamilton Co 17.12 17.08 0.04 Ohio Jefferson Co 17.94 17.91 0.03 Ohio Lawrence Co 16.11 16.09 0.02 Ohio Mahoning Co 15.39 15.35 0.04 Ohio Montgomery Co 15.41 15.36 0.05 Ohio Scioto Co 18.13 18.11 0.02 Ohio Stark Co 17.14 17.10 0.04 Ohio Summit Co 16.47 16.42 0.05 Pennsylvania Allegheny Co 16.84 16.79 0.05 Pennsylvania Beaver Co 15.78 15.74 0.04 Pennsylvania Berks Co 15.86 15.84 0.02 Pennsylvania Cambria Co 15.14 15.12 0.02 Pennsylvania Dauphin Co 15.15 15.13 0.02 Pennsylvania Delaware Co 15.58 15.56 0.02 Pennsylvania Lancaster Co 16.52 16.50 0.02 Pennsylvania Philadelphia Co 16.62 16.60 0.02 Pennsylvania Washington Co 15.23 15.19 0.04 Pennsylvania Westmoreland Co 15.16 15.13 0.03 Pennsylvania York Co 16.47 16.45 0.02 Tennessee Hamilton Co 16.90 16.89 0.01 Tennessee Knox Co 15.89 15.88 0.01 West Virginia Berkeley Co 15.68 15.67 0.01 West Virginia Brooke Co 16.63 16.60 0.03 West Virginia Cabell Co 17.03 17.02 0.01 West Virginia Hancock Co 17.07 17.04 0.03 West Virginia Kanawha Co 17.56 17.55 0.01 West Virginia Marion Co 15.32 15.30 0.02 West Virginia Marshall Co 15.81 15.78 0.03 West Virginia Ohio Co 15.14 15.11 0.03 West Virginia Wood Co 16.67 16.65 0.02


[Federal Register: July 20, 2009 (Volume 74, Number 137)]
[Notices]
[Page 35211-35215]
[DOCID:fr20jy09-83]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28818; File No. 812-13200]

Reaves Utility Income Fund, et al.; Notice of Application

July 14, 2009.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 19(b) of
the Act and rule 19b-1 under the Act.

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Summary of Application: Applicants request an order to permit a
registered closed-end investment company to make periodic distributions
of long-term capital gains with respect to its common shares as often
as monthly in any one taxable year, and as frequently as distributions
are specified by or in accordance with the terms of its preferred
shares.

Applicants: Reaves Utility Income Fund (``UTG'') and W.H. Reaves & Co.,
Inc. (``Investment Adviser'').

DATES: Filing Dates: June 14, 2005, and amended on February 14, 2007,
October 15, 2008, April 20, 2009, and July 10, 2009.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on August 10, 2009, and should be accompanied by proof of service
on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090; Applicants: Reaves Utility Income Fund,
1290 Broadway, Suite 1100, Denver, CO 80203, and W.H. Reaves & Co.,
Inc., 10 Exchange Place, 18th Floor, Jersey City, NJ 07302.

FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel,
at<PHONE_NUMBER>, or Mary Kay Frech, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

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

Applicants' Representations

    1. UTG is a registered closed-end management investment company
organized as a Delaware statutory trust.\1\ UTG's primary investment
objective is to provide a high level of after-tax income and total
return consisting primarily of tax-advantaged dividend income and
capital appreciation. The common shares issued by UTG are listed on the
NYSE Amex. UTG currently has three series of preferred shares
outstanding, which are not listed or traded on any stock exchange.
Applicants believe that the shareholders of UTG are generally
conservative, dividend-sensitive investors who desire current income
periodically and may favor a fixed distribution policy.
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    \1\ UTG is the only closed-end investment company that currently
intends to rely on the order. Applicants request that the order also
apply to any registered closed-end investment company that in the
future: (a) Is advised by the Investment Adviser (including any
successor in interest) or by any entity controlling, controlled by,
or under common control (within the meaning of section 2(a)(9) of
the Act) with the Investment Adviser; and (b) complies with the
terms and conditions of the requested order (collectively with UTG,
``Funds''). A successor in interest is limited to entities that
result from a reorganization into another jurisdiction or a change
in the type of business organization.
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    2. The Investment Adviser is a Delaware corporation registered
under the Investment Advisers Act of 1940 (``Advisers Act''). The
Investment Adviser serves as investment adviser to

UTG and may in the future serve as investment adviser to one or more
additional Funds. Each Fund will be advised by an investment adviser
that is registered under the Advisers Act.
    3. Applicants state that on December 12, 2006, the Board of
Trustees (the ``Board'') of UTG, including a majority of the members of
the Board who are not ``interested persons'' of UTG as defined in
section 2(a)(19) of the Act (the ``Independent Trustees''), reviewed
information regarding the purpose and terms of a proposed distribution
policy, the reasonably foreseeable effect of such policy on UTG's long-
term total return (based on market price and net asset value (``NAV'')
per common share) and the expected relationship between UTG's
distribution rate on its common shares under the policy and UTG's total
return (in relation to NAV per share). Applicants state that the
Independent Trustees also considered information about any potential or
actual conflicts of interest that the Investment Adviser, any
affiliated persons of the Investment Adviser, or any other affiliated
persons of UTG may have relating to the adoption or implementation of
such policy. Applicants further state that after considering such
information the Board, including the Independent Trustees, approved a
distribution policy with respect to UTG's common shares (the ``Plan'')
and determined that such Plan is consistent with UTG's investment
objectives and policies and in the best interests of UTG's common
shareholders. Prior to implementing the Plan, the Board of UTG,
including the Independent Trustees, will review the factors considered
in connection with its approval of the Plan, as well as any changes in
such factors since the date of its approval, and will confirm that the
Plan is consistent with UTG's investment objectives and policies and in
the best interests of UTG's common shareholders.
    4. Applicants state that the purpose of the Plan is to provide to
UTG's common shareholders a regular, monthly distribution that is not
dependent on the timing or amount of investment income earned or
capital gains realized by UTG. Applicants note that under the Plan, UTG
will distribute all available investment income to shareholders,
consistent with UTG's primary investment objective of providing a high
level of after-tax income and total returns. Applicants state that if
and when sufficient investment income is not available on a monthly
basis, UTG will distribute long-term capital gains and/or return of
capital to its shareholders to maintain the level distribution rate
that has been approved by the Board. Applicants further state that the
minimum annual distribution rate will be independent of UTG's
performance during any particular period, but is expected to correlate
with UTG's performance over time. Applicants represent that the amount
and frequency of distributions may be amended at any time by the Board
without prior notice to UTG's shareholders. Applicants state that if
UTG's net investment income and net realized capital gains for any year
exceed the amount required to be distributed under the Plan, UTG will
at a minimum make distributions necessary to comply with the
distribution requirements of subchapter M of the Internal Revenue Code
of 1986 (``Code''). Applicants note that the Plan provides that it can
be amended, suspended, or terminated at any time by the Board without
prior notice to UTG's shareholders.
    5. Applicants state that at the December 12, 2006 meeting, the
Board adopted policies and procedures under rule 38a-1 under the Act
that are reasonably designed to ensure that all notices required to be
sent to UTG's shareholders pursuant to section 19(a) of the Act, rule
19a-1 under the Act, and condition IV below (``19(a) Notices'') comply
with condition II below, and that all other written communications by
UTG or its agents regarding distributions under the Plan include the
disclosure required by condition III below. Applicants state that the
Board also adopted policies and procedures at that meeting that require
UTG to keep records that demonstrate its compliance with all of the
conditions of the requested order and that are necessary for UTG to
form the basis for, or demonstrate the calculation of, the amounts
disclosed in its 19(a) Notices.

Applicants' Legal Analysis

    1. Section 19(b) of the Act generally makes it unlawful for any
registered investment company to make long-term capital gains
distributions more than once every twelve months. Rule 19b-1 under the
Act limits the number of capital gains dividends, as defined in section
852(b)(3)(C) of the Code (``distributions''), that a fund may make with
respect to any one taxable year to one, plus a supplemental ``clean
up'' distribution made pursuant to section 855 of the Code not
exceeding 10% of the total amount distributed for the year, plus one
additional capital gain dividend made in whole or in part to avoid the
excise tax under section 4982 of the Code.
    2. Section 6(c) provides that the Commission may, by order upon
application, conditionally or unconditionally exempt any person,
security, or transaction, or any class or classes of persons,
securities or transactions, from any provision of the Act, if and to
the extent that the exemption is necessary or appropriate in the public
interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
    3. Applicants state that one of the concerns underlying section
19(b) and rule 19b-1 is that shareholders might be unable to
differentiate between frequent distributions of capital gains and
dividends from investment income. Applicants state, however, that rule
19a-1 effectively addresses this concern by requiring that a separate
statement showing the sources of a distribution (e.g., estimated net
income, net short-term capital gains, net long-term capital gains and/
or return of capital) accompany any distributions (or the confirmation
of the reinvestment of distributions) estimated to be sourced in part
from capital gains or capital. Applicants state that the same
information also is included in UTG's annual reports to shareholders
and on its IRS Form 1099-DIV, which is sent to each common and
preferred shareholder who received distributions during a particular
year (including shareholders who have sold shares during the year).
    4. Applicants further state that UTG will make the additional
disclosures required by the conditions set forth below, and has adopted
compliance policies and procedures in accordance with rule 38a-1 to
ensure that all required 19(a) Notices and disclosures are sent to
shareholders. Applicants argue that by providing the information
required by section 19(a) and rule 19a-1, and by complying with the
procedures adopted under the Plan and the conditions listed below,
UTG's shareholders are provided sufficient information to understand
that their periodic distributions are not tied to UTG's net investment
income (which for this purpose is UTG's taxable income other than from
capital gains) and realized capital gains to date, and may not
represent yield or investment return. Applicants also state that
compliance with UTG's compliance procedures and condition III set forth
below will ensure that prospective shareholders and third parties are
provided with the same information. Accordingly, applicants assert that
continuing to subject UTG to section 19(b) and rule 19b-1 would afford
shareholders no extra protection.
    5. Applicants note that section 19(b) and rule 19b-1 also were
intended to

prevent certain improper sales practices, including, in particular, the
practice of urging an investor to purchase shares of a fund on the
basis of an upcoming capital gains dividend (``selling the dividend''),
where the dividend would result in an immediate corresponding reduction
in NAV and would be in effect a taxable return of the investor's
capital. Applicants assert that the ``selling the dividend'' concern
should not apply to closed-end investment companies, such as UTG, that
do not continuously distribute shares. According to applicants, if the
underlying concern extends to secondary market purchases of shares of
closed-end funds that are subject to a large upcoming capital gains
dividend, adoption of a periodic distribution plan actually helps
minimize the concern by avoiding, through periodic distributions, any
buildup of large end-of-the-year distributions.
    6. Applicants also note that common shares of closed-end funds that
invest primarily in equity securities often trade in the marketplace at
a discount to the funds' NAV. Applicants believe that this discount may
be reduced for closed-end funds that pay relatively frequent dividends
on their common shares at a consistent rate, whether or not those
dividends contain an element of long-term capital gain.
    7. Applicants assert that the application of rule 19b-1 to the Plan
actually could have an undesirable influence on portfolio management
decisions. Applicants state that, in the absence of an exemption from
rule 19b-1, the implementation of a periodic distribution plan imposes
pressure on management (a) not to realize any net long-term capital
gains until the point in the year that the fund can pay all of its
remaining distributions in accordance with rule 19b-1, and (b) not to
realize any long-term capital gains during any particular year in
excess of the amount of the aggregate pay-out for the year (since as a
practical matter excess gains must be distributed and accordingly would
not be available to satisfy pay-out requirements in following years),
notwithstanding that purely investment considerations might favor
realization of long-term gains at different times or in different
amounts. Applicants thus assert that the limitation on the number of
capital gain distributions that a fund may make with respect to any one
year imposed by rule 19b-1, may prevent the efficient operation of a
periodic distribution plan whenever that fund's realized net long-term
capital gains in any year exceed the total of the periodic
distributions that may include such capital gains under the rule.
    8. Applicants also assert that rule 19b-1 may cause fixed regular
periodic distributions under a periodic distribution plan to be funded
with returns of capital \2\ (to the extent net investment income and
realized short-term capital gains are insufficient to fund the
distribution), even though realized net long-term capital gains
otherwise could be available. To distribute all of a fund's long-term
capital gains within the limits in rule 19b-1, a fund may be required
to make total distributions in excess of the annual amount called for
by its periodic distribution plan, or to retain and pay taxes on the
excess amount. Applicants thus assert that the requested order would
minimize these effects of rule 19b-1 by enabling UTG to realize long-
term capital gains as often as investment considerations dictate
without fear of violating rule 19b-1.
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    \2\ Returns of capital as used in the application means return
of capital for financial accounting purposes and not for tax
accounting purposes.
---------------------------------------------------------------------------

    9. Applicants state that Revenue Ruling 89-81 under the Code
requires that a fund that has both common stock and preferred stock
outstanding designate the types of income, e.g., investment income and
capital gains, in the same proportion as the total distributions
distributed to each class for the tax year. To satisfy the
proportionate designation requirements of Revenue Ruling 89-81,
whenever a fund has realized a long-term capital gain with respect to a
given tax year, the fund must designate the required proportionate
share of such capital gain to be included in common and preferred stock
dividends. Applicants state that although rule 19b-1 allows a fund some
flexibility with respect to the frequency of capital gains
distributions, a fund might use all of the exceptions available under
the rule for a tax year and still need to distribute additional capital
gains allocated to the preferred stock to comply with Revenue Ruling
89-81.
    10. Applicants assert that the potential abuses addressed by
section 19(b) and rule 19b-1 do not arise with respect to preferred
stock issued by a closed-end fund. Applicants assert that such
distributions are fixed or determined in periodic auctions by reference
to short-term interest rates rather than by reference to performance of
the issuer, and Revenue Ruling 89-81 determines the proportion of such
distributions that are comprised of the long-term capital gains.
    11. Applicants also submit that the ``selling the dividend''
concern is not applicable to preferred stock, which entitles a holder
to no more than a periodic dividend at a fixed rate or the rate
determined by the market, and, like a debt security, is priced based
upon its liquidation value, dividend rate, credit quality, and
frequency of payment. Applicants state that investors buy preferred
shares for the purpose of receiving payments at the frequency bargained
for, and do not expect the liquidation value of their shares to change.
    12. Applicants request an order under section 6(c) granting an
exemption from section 19(b) and rule 19b-1 to permit UTG to make
periodic long-term capital gains distributions (as defined in section
852(b)(3)(C) of the Code) as often as monthly in any one taxable year
in respect of its common shares and as often as specified by or
determined in accordance with the terms thereof in respect of its
preferred shares.\3\
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    \3\ Applicants state that a future Fund that relies on the
requested order will satisfy each of the representations in the
application except that such representations will be made in respect
of actions by the board of directors or trustees of such future Fund
and will be made at a future time.
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    Applicants' Conditions:
    Applicants agree that any order of the Commission granting the
requested relief will be subject to the following conditions:

I. Compliance Review and Reporting

    Each Fund's chief compliance officer will: (a) Report to the Fund's
Board, no less frequently than once every three months or at the next
regularly scheduled quarterly Board meeting, whether (i) the Fund and
its Investment Adviser have complied with the conditions of the order,
and (ii) a material compliance matter, as defined in rule 38a-1(e)(2)
under the Act, has occurred with respect to such conditions; and (b)
review the adequacy of the policies and procedures adopted by the Board
no less frequently than annually.

II. Disclosures to Fund Shareholders

    A. Each 19(a) Notice disseminated to the holders of the Fund's
common shares, in addition to the information required by section 19(a)
and rule 19a-1:
    1. Will provide, in a tabular or graphical format:
    (a) The amount of the distribution, on a per share basis, together
with the amounts of such distribution amount, on a per share basis and
as a percentage of such distribution amount, from estimated: (A) Net
investment income; (B) net realized short-term capital gains; (C) net
realized long-term capital gains; and (D) return of capital or other
capital source;

    (b) The fiscal year-to-date cumulative amount of distributions, on
a per share basis, together with the amounts of such cumulative amount,
on a per share basis and as a percentage of such cumulative amount of
distributions, from estimated: (A) Net investment income; (B) net
realized short-term capital gains; (C) net realized long-term capital
gains; and (D) return of capital or other capital source;
    (c) The average annual total return in relation to the change in
NAV for the 5-year period (or, if the Fund's history of operations is
less than five years, the time period commencing immediately following
the Fund's first public offering) ending on the last day of the month
prior to the most recent distribution record date compared to the
current fiscal period's annualized distribution rate expressed as a
percentage of NAV as of the last day of the month prior to the most
recent distribution record date; and
    (d) The cumulative total return in relation to the change in NAV
from the last completed fiscal year to the last day of the month prior
to the most recent distribution record date compared to the fiscal
year-to-date cumulative distribution rate expressed as a percentage of
NAV as of the last day of the month prior to the most recent
distribution record date.
    Such disclosure shall be made in a type size at least as large and
as prominent as the estimate of the sources of the current
distribution; and
    2. Will include the following disclosure:
    (a) ``You should not draw any conclusions about the Fund's
investment performance from the amount of this distribution or from the
terms of the Fund's Plan'';
    (b) ``The Fund estimates that it has distributed more than its
income and net realized capital gains; therefore, a portion of your
distribution may be a return of capital. A return of capital may occur
for example, when some or all of the money that you invested in the
Fund is paid back to you. A return of capital distribution does not
necessarily reflect the Fund's investment performance and should not be
confused with `yield' or `income' ''; \4\ and
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    \4\ The disclosure in this condition II.A.2(b) will be included
only if the current distribution or the fiscal year-to-date
cumulative distributions are estimated to include a return of
capital.
---------------------------------------------------------------------------

    (c) ``The amounts and sources of distributions reported in this
19(a) Notice are only estimates and are not being provided for tax
reporting purposes. The actual amounts and sources of the amounts for
tax reporting purposes will depend upon the Fund's investment
experience during the remainder of its fiscal year and may be subject
to changes based on tax regulations. The Fund will send you a Form
1099-DIV for the calendar year that will tell you how to report these
distributions for federal income tax purposes.''
    Such disclosure shall be made in a type size at least as large as
and as prominent as any other information in the 19(a) Notice and
placed on the same page in close proximity to the amount and the
sources of the distribution.
    B. On the inside front cover of each report to shareholders under
rule 30e-1 under the Act, the Fund will:
    1. Describe the terms of the Plan (including the fixed amount or
fixed percentage of the distributions and the frequency of the
distributions);
    2. Include the disclosure required by condition II.A.2(a) above;
    3. State, if applicable, that the Plan provides that the Board may
amend or terminate the Plan at any time without prior notice to Fund
shareholders; and
    4. Describe any reasonably foreseeable circumstances that might
cause the Fund to terminate the Plan and any reasonably foreseeable
consequences of such termination.
    C. Each report provided to shareholders under rule 30e-1 under the
Act and in each prospectus filed with the Commission on Form N-2 under
the Act, will provide the Fund's total return in relation to changes in
NAV in the financial highlights table and in any discussion about the
Fund's total return.

III. Disclosure to Shareholders, Prospective Shareholders and Third
Parties

    A. Each Fund will include the information contained in the relevant
19(a) Notice, including the disclosure required by condition II.A.2
above, in any written communication (other than a communication on Form
1099) about the Plan or distributions under the Plan by the Fund, or
agents that the Fund has authorized to make such communication on the
Fund's behalf, to any Fund common shareholder, prospective common
shareholder or third-party information provider;
    B. Each Fund will issue, contemporaneously with the issuance of any
19(a) Notice, a press release containing the information in the 19(a)
Notice and will file with the Commission the information contained in
such 19(a) Notice, including the disclosure required by condition
II.A.2 above, as an exhibit to its next filed Form N-CSR; and
    C. Each Fund will post prominently a statement on its (or the
Investment Adviser's) web site containing the information in each 19(a)
Notice, including the disclosure required by condition II.A.2 above,
and will maintain such information on such web site for at least 24
months.

IV. Delivery of 19(a) Notices to Beneficial Owners

    If a broker, dealer, bank or other person (``financial
intermediary'') holds common stock issued by a Fund in nominee name, or
otherwise, on behalf of a beneficial owner, the Fund: (a) Will request
that the financial intermediary, or its agent, forward the 19(a) Notice
to all beneficial owners of the Fund's shares held through such
financial intermediary; (b) will provide, in a timely manner, to the
financial intermediary, or its agent, enough copies of the 19(a) Notice
assembled in the form and at the place that the financial intermediary,
or its agent, reasonably requests to facilitate the financial
intermediary's sending of the 19(a) Notice to each beneficial owner of
the Fund's shares; and (c) upon the request of any financial
intermediary, or its agent, that receives copies of the 19(a) Notice,
will pay the financial intermediary, or its agent, the reasonable
expenses of sending the 19(a) Notice to such beneficial owners.

V. Additional Board Determinations for Funds Whose Shares Trade at a
Premium

    If:
    A. A Fund's common shares have traded on the stock exchange that
they primarily trade on at the time in question at an average premium
to NAV equal to or greater than 10%, as determined on the basis of the
average of the discount or premium to NAV of the Fund's common shares
as of the close of each trading day over a 12-week rolling period (each
such 12-week rolling period ending on the last trading day of each
week); and
    B. the Fund's annualized distribution rate for such 12-week rolling
period, expressed as a percentage of NAV as of the ending date of such
12-week rolling period, is greater than the Fund's average annual total
return in relation to the change in NAV over the 2-year period ending
on the last day of such 12-week rolling period; then:
    1. At the earlier of the next regularly scheduled meeting or within
four months of the last day of such 12-week rolling period, the Board
including a majority of the Independent Trustees:
    (a) Will request and evaluate, and the Investment Adviser will
furnish, such

information as may be reasonably necessary to make an informed
determination of whether the Plan should be continued or continued
after amendment;
    (b) Will determine whether continuation, or continuation after
amendment, of the Plan is consistent with the Fund's investment
objective(s) and policies and in the best interests of the Fund and its
shareholders, after considering the information in condition V.B.1(a)
above; including, without limitation:
    (1) Whether the Plan is accomplishing its purpose(s);
    (2) The reasonably foreseeable material effects of the Plan on the
Fund's long-term total return in relation to the market price and NAV
of the Fund's common shares; and
    (3) The Fund's current distribution rate, as described in condition
V.B above, compared with the Fund's average annual taxable income or
total return over the 2-year period, as described in condition V.B, or
such longer period as the Board deems appropriate; and
    (c) Based upon that determination, will approve or disapprove the
continuation, or continuation after amendment, of the Plan; and
    2. The Board will record the information considered by it,
including its consideration of the factors listed in condition V.B.1(b)
above, and the basis for its approval or disapproval of the
continuation, or continuation after amendment, of the Plan in its
meeting minutes, which must be made and preserved for a period of not
less than six years from the date of such meeting, the first two years
in an easily accessible place.

VI. Public Offerings

    A Fund will not make a public offering of the Fund's common shares
other than:
    A. A rights offering below NAV to holders of the Fund's common
shares;
    B. An offering in connection with a dividend reinvestment plan,
merger, consolidation, acquisition, spin-off or reorganization of the
Fund; or
    C. An offering other than an offering described in conditions VI.A
and VI.B above, provided that, with respect to such other offering:
    1. The Fund's annualized distribution rate for the six months
ending on the last day of the month ended immediately prior to the most
recent distribution record date,\5\ expressed as a percentage of NAV
per share as of such date, is no more than 1 percentage point greater
than the Fund's average annual total return for the 5-year period
ending on such date; \6\ and
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    \5\ If the Fund has been in operation fewer than six months, the
measured period will being immediately following the Fund's first
public offering.
    \6\ If the Fund has been in operation fewer than five years, the
measured period will being immediately following the Fund's first
public offering.
---------------------------------------------------------------------------

    2. The transmittal letter accompanying any registration statement
filed with the Commission in connection with such offering discloses
that the Fund has received an order under section 19(b) to permit it to
make periodic distributions of long-term capital gains with respect to
its common stock as frequently as twelve times each year, and as
frequently as distributions are specified in accordance with the terms
of any outstanding preferred stock as such Fund may issue.

VII. Amendments to Rule 19b-1

    The requested relief will expire on the effective date of any
amendment to rule 19b-1 that provides relief permitting certain closed-
end investment companies to make periodic distributions of long-term
capital gains with respect to their outstanding common stock as
frequently as twelve times each year.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-17140 Filed 7-17-09; 8:45 am]

BILLING CODE 8010-01-P