[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Notices]
[Pages 75631-75635]
[FR Doc No: 2023-24271]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98826; File No. SR-PEARL-2023-59]

Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX
Pearl Equities Fee Schedule To Extend the Sunset Period for the Step-
Added Liquidity Rebate

October 30, 2023.
    Pursuant to the provisions of section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on October 18, 2023, MIAX PEARL, LLC (``MIAX
Pearl'' or ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'') a proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the fee schedule (the
``Fee Schedule'') applicable to MIAX Pearl Equities, an equities
trading facility of the Exchange.
    The text of the proposed rule change is available on the Exchange's
website at https://www.miaxglobal.com/markets/us-options/pearl-options/rule-filings, at MIAX Pearl's principal office, and at the Commission's
Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Section 1)f) of the Fee Schedule to
modify the expiration month (referred to herein as the ``sunset
period'') of the required criteria of the Step-Up Added Liquidity
Rebate table. This table provides that Equity Members \3\ who satisfy
the required criteria will receive the Step-Up Added Liquidity Rebate
(described below). The Exchange originally filed this proposal on
October 12, 2023, (SR-PEARL-2023-57). On October 18, 2023, the Exchange
withdrew SR-PEARL-2023-57 and resubmitted this proposal.
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    \3\ The term ``Equity Member'' is a Member authorized by the
Exchange to transact business on MIAX Pearl Equities. See Exchange
Rule 1901.
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Background
    The Exchange currently provides a standard rebate of ($0.0024) \4\
per share for executions of orders in securities priced at or above
$1.00 per share that add displayed liquidity to the Exchange. The
Exchange also currently offers various volume-based tiers and
incentives through which an Equity Member may receive an enhanced

rebate for executions of orders that add displayed liquidity to the
Exchange by achieving the specified criteria that corresponds to a
particular tier/incentive.
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    \4\ Rebates are indicated by parentheses. See the General Notes
Section of the Fee Schedule.
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    In particular, the Exchange adopted a volume based pricing
incentive, referred to as the ``Step-Up Added Liquidity Rebate,'' in
which qualifying Equity Members receive an enhanced rebate of ($0.0031)
per share for executions of orders in securities priced at or above
$1.00 per share that add displayed liquidity to the Exchange.\5\ The
enhanced rebate provided by the Step-Up Added Liquidity Rebate applies
to Liquidity Indicator Codes AA (adds liquidity, displayed order, Tape
A), AB (adds liquidity, displayed order, Tape B) and AC (adds
liquidity, displayed order, Tape C).\6\
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    \5\ See Securities Exchange Act Release No. 95614 (August 26,
2022), 87 FR 53813 (September 1, 2022) (SR-PEARL-2022-33).
    \6\ See Fee Schedule, Section 1)b), Liquidity Indicator Codes
and Associated Fees.
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    On September 27, 2023, the Exchange filed SR-PEARL-2023-50 which
amended the baseline month from May 2023 to July 2023 and extended the
sunset period from September 29, 2023 to January 31, 2024. These
changes were scheduled to become effective on October 1, 2023. However,
prior to these changes becoming effective the Exchange filed SR-PEARL-
2023-54 which superseded SR-PEARL-2023-50 and reverted the baseline
month back to May 2023 and changed the sunset period to November 30,
2023, with an effective implementation date of October 1, 2023. Insofar
as Equity Members are concerned, the baseline month has not changed, as
it was May 2023 for the month of September and remains May 2023 for the
month of October. The only substantive change for Equity Members is the
extension of the sunset period from September 2023 to November 2023.
    Equity Members qualify for the Step-Up Added Liquidity Rebate by
achieving a ``Step-Up ADAV as a % of TCV'' \7\ of at least 0.03% over
the baseline month of May 2023. Average daily added volume (``ADAV'')
means average daily added volume calculated as the number of shares
added per day and average daily volume (``ADV'') means average daily
volume calculated as the number of shares added or removed, combined,
per day. ADAV and ADV are calculated on a monthly basis.\8\ Total
consolidated volume (``TCV'') means total consolidated volume
calculated as the volume in shares reported by all exchanges and
reporting facilities to a consolidated transaction reporting plan for
the month for which the fees apply.\9\ For example, if an Equity Member
had an ADAV as a percent of TCV of 0.01% in May 2023, then that Equity
Member has to achieve an ADAV as a percent of TCV equal to or greater
than 0.04% in any subsequent month in order to qualify for the Step-Up
Added Liquidity Rebate.
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    \7\ The term ``Step-Up ADAV as a % of TCV'' means ADAV as a
percent of TCV in the relevant baseline month subtracted from the
current month's ADAV as a percent of TCV. See the Definitions
Section of the Fee Schedule. The Exchange notes that the Step-Up
Added Liquidity Rebate does not apply to executions of orders in
securities priced below $1.00 per share or executions of orders that
constitute added non-displayed liquidity.
    \8\ The Exchange excludes from its calculation of ADAV and ADV
shares added or removed on any day that the Exchange's system
experiences a disruption that lasts for more than 60 minutes during
regular trading hours, on any day with a scheduled early market
close, and on the ``Russell Reconstitution Day'' (typically the last
Friday in June). Routed shares are not included in the ADAV or ADV
calculation. With prior notice to the Exchange, an Equity Member may
aggregate ADAV or ADV with other Equity Members that control, are
controlled by, or are under common control with such Equity Member
(as evidenced on such Equity Member's Form BD). See the Definitions
Section of the Fee Schedule.
    \9\ The Exchange excludes from its calculation of TCV volume on
any given day that the Exchange's system experiences a disruption
that lasts for more than 60 minutes during Regular Trading Hours, on
any day with a scheduled early market close, and on the ``Russell
Reconstitution Day'' (typically the last Friday in June). See the
Definitions Section of the Fee Schedule.
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Proposal
    The Exchange now proposes to amend Section 1)f) of the Fee Schedule
to modify the required criteria for Equity Members to receive the Step-
Up Added Liquidity Rebate. In particular, the Exchange proposes that
the criteria to qualify for the Step-Up Added Liquidity Rebate will
expire no later than November 30, 2023.\10\ The Exchange will issue an
alert to market participants should the Exchange determine that the
Step-Up Added Liquidity Rebate will expire earlier than November 30,
2023, or if the Exchange determines to amend the criteria or rate
applicable to the Step-Up Added Liquidity Rebate prior to the end of
the sunset period. The Exchange notes that at least one other competing
equities exchange provides a similar ``sunset period'' for one of its
enhanced rebates subject to the same baseline month as the Exchange
proposes.\11\
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    \10\ The Exchange notes that at the end of the sunset period,
the Step-Up Added Liquidity Rebate will no longer apply unless the
Exchange files another 19b-4 Filing with the Commission to amend the
criteria terms.
    \11\ See Securities Exchange Act Release No. 97662 (June 7,
2023), 88 FR 38576 (June 13, 2023) (SR-MEMX-2023-09); see also MEMX
LLC (``MEMX'') Fee Schedule, Liquidity Provision Tiers, Tier 6,
available at https://info.memxtrading.com/fee-schedule/ (last
visited September 29, 2023).
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    The Exchange does not propose any other changes to the qualifying
criteria for Equity Members to receive the Step-Up Added Liquidity
Rebate. The Exchange also does not propose to amend the amount of the
enhanced rebate of ($0.0031) per share for Equity Members that qualify
for the Step-Up Added Liquidity Rebate. Finally, the Exchange does not
propose to change the baseline ADAV of 0.00% of TCV used for firms that
become Equity Members of the Exchange after May 2023 for the purpose of
the Step-Up Added Liquidity Rebate calculation.
    The purpose of this proposed change is to simply extend the sunset
period two months, from September 2023 to November 2023. The Exchange
believes that the Step-Up Added Liquidity Rebate will continue to
provide an incentive for Equity Members to strive for higher ADAV on
the Exchange (above their ADAV in the baseline month of May 2023) to
receive the enhanced rebate for qualifying executions of orders in
securities priced at or above $1.00 per share that add displayed
liquidity to the Exchange. The Exchange believes that with the
extension of the sunset period the Step-Up Added Liquidity Rebate will
continue to encourage the submission of additional displayed added
liquidity to the Exchange, thereby promoting price discovery and
contributing to a deeper and more liquid market, which benefits all
market participants and enhances the attractiveness of the Exchange as
a trading venue. The Exchange notes that earlier this year, MEMX filed
a proposal to use May 2023 as the baseline month for one of its
enhanced Liquidity Provision Tiers (Tier 6) for MEMX's members to
receive an enhanced rebate and used November 30, 2023, as the sunset
period.\12\ The purpose of including the proposed sunset period in the
Fee Schedule is to provide clarity to Equity Members that, unless the
Exchange determines to amend or otherwise modify the Step-Up Added
Liquidity Rebate, the Step-Up Added Liquidity Rebate will expire at the
end of the sunset period.
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    \12\ See id.
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Implementation
    The proposed changes will become immediately effective.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with section 6(b) of the Act \13\

in general, and furthers the objectives of section 6(b)(4) of the Act
\14\ in particular, in that it is an equitable allocation of reasonable
fees and other charges among its Equity Members and issuers and other
persons using its facilities and is not designed to permit unfair
discrimination between customers, issuers, brokers, or dealers.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4).
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    The Exchange operates in a highly fragmented and competitive market
in which market participants can readily direct their order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. More specifically, the
Exchange is only one of sixteen registered equities exchanges, and
there are a number of alternative trading systems and other off-
exchange venues, to which market participants may direct their order
flow. As of September 29, 2023, based on publicly available
information, no single registered equities exchange currently has more
than approximately 15-16% of the total market share of executed volume
of equities trading for the month of September 2023.\15\ Thus, in such
a low-concentrated and highly competitive market, no single equities
exchange possesses significant pricing power in the execution of order
flow, and the Exchange represents approximately 1.79% of the overall
market share as of September 29, 2023, for the month of September
2023.\16\ The Commission and the courts have repeatedly expressed their
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. In Regulation
NMS, the Commission highlighted the importance of market forces in
determining prices and SRO revenues and also recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \17\
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    \15\ See MIAX's ``The market at a glance/MTD AVERAGE,''
available at https://www.miaxglobal.com/ (Data as of 9/1/2023--9/28/
2023).
    \16\ See id.
    \17\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37499 (June 29, 2005).
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    The Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
shift order flow or discontinue to reduce use of certain categories of
products, in response to new or different pricing structures being
introduced into the market. Accordingly, competitive forces constrain
the Exchange's transaction fees and rebates, and market participants
can readily trade on competing venues if they deem pricing levels at
those other venues to be more favorable. The Exchange believes the
proposal reflects a reasonable and competitive pricing structure
designed to incentivize market participants to direct additional orders
that add liquidity to the Exchange, which the Exchange believes would
deepen liquidity and promote market quality on the Exchange to the
benefit of all market participants.
    The Exchange notes that volume-based incentives and discounts (such
as tiers) have been widely adopted by exchanges (including the
Exchange), and believes they are reasonable, equitable and not unfairly
discriminatory because they are available to all Equity Members on an
equal basis, provide additional benefits or discounts that are
reasonably related to the value of an exchange's market quality
associated with higher levels of market activity (such as higher levels
of liquidity provision and/or growth patterns), and the introduction of
higher volumes of orders into the price and volume discovery process.
    The Exchange believes that the Step-Up Added Liquidity Rebate, as
modified by the proposed change to the sunset period, is reasonable,
equitable and not unfairly discriminatory as the Step-Up Added
Liquidity Rebate will continue to be available to all Equity Members on
an equal basis, and is reasonably designed to encourage Equity Members
to maintain or increase their order flow in liquidity-adding volume.
The Exchange believes this will continue to promote price discovery,
enhance liquidity and market quality, and contribute to a more robust
and well-balanced market ecosystem on the Exchange to the benefit of
all Equity Members and market participants. The Exchange also notes
that MEMX filed a proposal which also uses May 2023 as the baseline
month as well as November 2023 as its expiration month, for one of its
enhanced Liquidity Provision Tiers (Tier 6) for its members to receive
an enhanced rebate.\18\
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    \18\ See supra note 11.
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    The Exchange believes it is reasonable, equitable and not unfairly
discriminatory to amend the sunset period in the Fee Schedule for the
Step-Up Added Liquidity Rebate because it will provide clarity to
Equity Members that, unless the Exchange determines to amend or
otherwise modify the Step-Up Added Liquidity Rebate, the Step-Up Added
Liquidity Rebate will expire at the end of the sunset period. This will
allow Equity Members to take into account that the enhanced rebate
provided for by the Step-Up Added Liquidity Rebate may be discontinued
at the end of sunset period unless the Exchange announces otherwise and
files a revised proposal with the Commission. The Exchange further
notes that it will issue an alert to market participants should the
Exchange determine that the Step-Up Added Liquidity Rebate will expire
earlier than November 30, 2023, or if the Exchange determines to amend
the criteria or rate applicable to the Step-Up Added Liquidity Rebate
prior to the end of the sunset period. At least one other competing
equities exchange provided a similar sunset period in its fee schedule
for one of its enhanced rebates.\19\
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    \19\ See id.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes that the proposed change will not impose any
burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.
Intramarket Competition
    The Exchange does not believe that the proposal will impose any
burden on intramarket competition not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange believes the Step-
Up Added Liquidity Rebate, as modified by this proposal, will continue
to incentivize Equity Members to submit additional orders that add
liquidity to the Exchange, thereby contributing to a deeper and more
liquid market and promoting price discovery and market quality on the
Exchange to the benefit of all market participants and enhancing the
attractiveness of the Exchange as a trading venue, which the Exchange
believes, in turn, would continue to encourage market participants to
direct additional order flow to the Exchange. Greater liquidity
benefits all Equity Members by providing more trading opportunities and
encourages Equity Members to send additional orders to the Exchange,
thereby contributing to robust levels of liquidity, which benefits all
market participants. As described above, the opportunity to qualify for
the proposed new Step-Up Added Liquidity Rebate, and thus receive the
proposed rebate for qualifying executions of orders in securities
priced at or above $1.00 per share that add displayed volume will
continue to be available to all Equity Members that meet the associated
volume requirement, and the

Exchange believes the proposed extension of the sunset period is
reasonably related to the enhanced market quality that the Step-Up
Added Liquidity Rebate is designed to promote. As such the Exchange
does not believe the proposed changes would impose any burden on
intramarket competition that is not necessary or appropriate in
furtherance of the purpose of the Act.
    The Exchange believes its proposal to extend the sunset period in
the Fee Schedule for the Step-Up Added Liquidity Rebate will not impose
any burden on intramarket competition not necessary or appropriate in
furtherance of the purposes of the Act because it will provide clarity
to Equity Members that, unless the Exchange determines to amend or
otherwise modify the Step-Up Added Liquidity Rebate, the Step-Up Added
Liquidity Rebate will be discontinued at the end of the sunset period.
This will allow Equity Members to take into account that the enhanced
rebate provided for by the Step-Up Added Liquidity Rebate may be
discontinued at the end of the sunset period unless the Exchange
announces otherwise. The Exchange further notes that it will issue an
alert to market participants should the Exchange determine that the
Step-Up Added Liquidity Rebate will expire earlier than November 30,
2023, or if the Exchange determines to amend the criteria or rate
applicable to the Step-Up Added Liquidity Rebate prior to the end of
the sunset period. At least one other competing equities exchange
provided a similar sunset period in its fee schedule for one of its
enhanced rebates.\20\
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    \20\ See supra note 11.
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Intermarket Competition
    The Exchange believes its proposal will benefit competition, and
the Exchange notes that it operates in a highly competitive market. The
Exchange notes that by extending its sunset period to November 2023,
its program has a sunset period similar to that of at least one other
equities exchange.\21\ Equity Members have numerous alternative venues
they may participate on and direct their order flow to, including
fifteen other equities exchanges and numerous alternative trading
systems and other off-exchange venues. As noted above, as of September
29, 2023, based on publicly available information, no single registered
equities exchange currently has more than approximately 15-16% of the
total market share of executed volume of equities trading for the month
of September 2023.\22\ Thus, in such a low-concentrated and highly
competitive market, no single equities exchange possesses significant
pricing power in the execution of order flow, and the Exchange
represents approximately 1.79% of the overall market share as of
September 29, 2023 for the month of September 2023.\23\ Moreover, the
Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
shift order flow in response to new or different pricing structures
being introduced to the market. Accordingly, competitive forces
constrain the Exchange's transaction fees and rebates generally,
including with respect to the criteria for Equity Members to achieve
the Step-Up Added Liquidity Rebate, and market participants can readily
choose to send their orders to other exchanges and off-exchange venues
if they deem rebate criteria at those other venues to be more
favorable.
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    \21\ See id.
    \22\ See supra note 15.
    \23\ See id.
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    As described above, the proposed changes represent a competitive
proposal through which the Exchange is seeking to continue to encourage
additional order flow to the Exchange through a volume-based incentive
that is comparable to the criteria for volume-based incentives adopted
by at least one other competing exchange that has a similar sunset
period for a specific enhanced rebate that adds liquidity to that
market.\24\ Accordingly, the Exchange believes that its proposal would
not burden, but rather promote, intermarket competition by enabling it
to better compete with other exchanges that offer similar pricing
incentives to market participants that achieve certain volume criteria
and thresholds.
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    \24\ See supra note 11.
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    Additionally, the Commission has repeatedly expressed its
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. Specifically,
in Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \25\ The fact
that this market is competitive has also long been recognized by the
courts. In NetCoalition v. Securities and Exchange Commission, the D.C.
circuit stated: ``[n]o one disputes that competition for order flow is
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market
system, buyers and sellers of securities, and the broker-dealers that
act as their routing agents, have a wide range of choices of where to
route orders for execution'; [and] `no exchange can afford to take its
market share percentages for granted' because `no exchange possesses a
monopoly, regulatory or otherwise, in the execution of order flow from
broker dealers'. . .''.\26\ Accordingly, the Exchange does not believe
its proposed pricing changes impose any burden on competition that is
not necessary or appropriate in furtherance of the purposes of the Act.
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    \25\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \26\ See NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSE-2006-21)).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to section
19(b)(3)(A)(ii) of the Act,\27\ and Rule 19b-4(f)(2) \28\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
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    \27\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \28\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or

     Send an email to [email protected]. Please include
file number SR-PEARL-2023-59 on the subject line.

Paper Comments

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

All submissions should refer to file number SR-PEARL-2023-59. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-PEARL-2023-59 and should be
submitted on or before November 24, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\29\
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    \29\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-24271 Filed 11-2-23; 8:45 am]
BILLING CODE 8011-01-P


EPA REGISTRATION DIVISION COMPANY NOTICE OF FILING FOR PESTICIDE
PETITIONS PUBLISHED IN THE FEDERAL REGISTER

Pursuant to section 408(d)(2) of the FFDCA, as amended by the Food
Quality Protection Act (FQPA), Interregional Research Project Number 4
(IR-4) has submitted the following summary of information, data and
rationales in support of this pesticide petition and authorization for
the summary to be published in the Federal Register in a notice of
receipt of the petition.  This summary was prepared by Nippon Soda Co.,
Ltd.

EPA Registration Division contact: Laura Nollen

Interregional Research Project Number 4 (IR-4)

PP# 9E7544

EPA has received a pesticide petition (9E7544) from Interregional
Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W,
Princeton, NJ 08540 proposing, pursuant to section 408(d) of the Federal
Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR
part 180.578 by establishing tolerances for residues of the insecticide
acetamiprid,
N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-N1-methylacetamidine, in or on
the raw agricultural commodities fruit, small, vine climbing, except
fuzzy kiwifruit, subgroup 13-07F at 0.35 parts per million (ppm) and
tolerances with regional restrictions for clover, forage at 0.10 ppm;
clover, hay at 0.01 ppm and tea at 50 ppm.  This action also proposes to
delete the existing tolerance for grapes at 0.20 ppm since it will be
superseded by the proposed tolerance on subgroup 13-07F.  EPA has
determined that the petition contains data or information regarding the
elements set forth in section 408 (d)(2) of  FDDCA; however, EPA has not
fully evaluated the sufficiency of the submitted data at this time or
whether the data supports granting of the petition. Additional data may
be needed before EPA rules on the petition..

Residue Chemistry-

1.  Plant Metabolism-  The metabolism of acetamiprid in plants is well
understood, having  been investigated in eggplant, apples, cabbage,
carrots, and cotton.  Metabolism in plants primarily involves
demethylation of the N-methyl group with subsequent hydrolysis of the
acetamidine function to give the N-acetyl compound.  This compound is
then hydrolyzed to the corresponding amine followed by oxidation to the
alcohol and acid.  Conjugation of the alcohol with glucose is also
significant.  Degradation of the side chain without loss of the N-methyl
group is seen in carrots since this is the major metabolic route in
soil.

2. Analytical Method-  Based upon the metabolism of acetamiprid in
plants and the toxicology of the parent and metabolites, quantification
of the parent acetamiprid is sufficient to determine toxic residues.  As
a result a method has been developed which involves extraction of
acetamiprid from crops with methanol and analysis by LC/MS/MS methods.
The limit of quantification (LOQ) and the limit of detection (LOD) for
the method are calculated to be 0.0076 ppm and 0.0025 ppm for clover
forage, respectively while the limit of quantification (LOQ) and the
limit of detection (LOD) for the method for clover hay are calculated to
be 0.0082 ppm and 0.0027 ppm, respectively.  The LOQ and LOD for grape
are calculated to be 0.0064 ppm and 0.0021 ppm, respectively.  The LOQ
and LOD for greenhouse-grown tomatoes was 0.0075 ppm and 0.0025,
respectively.

3.  Magnitude of Residues-  Magnitude of residue studies were conducted
in clover grown for seed.  Trials with applications at the maximum
proposed label use rate were conducted in Oregon (Region 11) and are
adequate for obtaining a regional use for acetamiprid on clover grown
for seed.

An existing cattle feeding study was conducted at dose levels adequate
to support the proposed new animal feed items and no revision to the
existing tolerances for the combined residues of acetamiprid
N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-N1-methylacetamidine and its
metabolite N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-acetamidine are
necessary.

Magnitude of residue studies at the maximum proposed label use rate were
conducted on grapes as the representative commodity for Crop Subgroup
13-07F (Fruit, small, vine, climbing, except fuzzy kiwifruit) in six
different crop residue regions throughout the US and Canada and are
adequate for obtaining an amended (increased) tolerance for the crop
subgroup.

Toxicological Profile-

1.  Acute Toxicity for Technical Acetamiprid-  The acute oral LD-50 for
acetamiprid was 146 mg/kg for female Sprague-Dawley rats and 217 for
male rats.  The acute dermal LD-50 for acetamiprid was greater than 2000
mg/kg in rats.  The acute 4 hour inhalation LC-50 for acetamiprid was
greater than 1.15 mg/L, the highest attainable concentration.
Acetamiprid was not irritating to the eyes or skin and was not
considered to be a sensitizing agent. The NOEL for acute neurotoxicity
was 10mg/kg and no evidence of neuropathy was noted.

Acute Toxicity for Formulated Acetamiprid 70WP-The acute oral LD-50 for
Acetamiprid 70WP was 944 mg/kg for female Sprague-Dawley rats and
1107mg/kg for male rats.  The acute dermal LD-50 for formulated
acetamiprid was greater than 2000mg/kg in rats. The acute inhalation
LC-50 (four hour) for Acetamiprid 70WP was determined to be greater than
2.88 mg/L, the highest attainable concentration.  Acetamiprid 70WP was
concluded to be a mild eye irritant and slight skin irritant.  There
were no indications of skin sensitization for the formulated product.

2.  Genetic Toxicity for Technical Acetamiprid- Based on the weight of
the evidence provided by a complete test battery, acetamiprid is neither
mutagenic nor genotoxic.  The compound was found to be devoid of
mutagenic activity (with and without metabolic activation) in S.
typhimurium and E. coli (Ames assay).  Acetamiprid was also not
mutagenic in an in vitro mammalian cell gene mutation assay on Chinese
hamster ovary (CHO) cells (HPRT locus, with and without metabolic
activation).  Acetamiprid did not induce unscheduled DNA synthesis (UDS)
in either rat liver primary cell cultures or in mammalian liver cells in
vivo.  In an in vitro chromosomal aberration study using CHO cells,
acetamiprid was positive when tested under metabolic activation at
cytotoxic dose levels; no effect was detected without metabolic
activation.  Acetamiprid was non-clastogenic in an in vivo chromosomal
aberration study in rat bone marrow.  It also was negative in an in vivo
mouse bone marrow micronucleus assay.

3.  Reproductive and Developmental Toxicity-  In the multi-generation
rat reproduction study a NOEL of 100 ppm was established based on
decreased body weight gains and a reproduction NOEL of 800 ppm (highest
dose tested) was established for reproductive performance and fertility.
In the rat teratology study the developmental NOEL was 50 mg/kg/day
(maternal NOEL of 16 mg/kg/day based on decreased body weight and food
consumption) and in the rabbit teratology study the developmental NOEL
was 30 mg/kg/day (maternal NOEL of 15 mg/kg/day based on decreased body
weight and food consumption).  In both the rat and rabbit studies there
were no fetotoxic or teratogenic findings.

A developmental neurotoxicity study in rats with acetamiprid was
conducted.  The test article was administered orally by gavage to
Crl:CD(SD)IGS BR rats once daily from gestation day 6 through lactation
day 21 inclusive at dosage levels of 2.5, 10, and 45 mg/kg/day.  One
female in the 45 mg/kg/day group died during parturition on gestation
day 23, following delivery of one pup.  All other females survived to
the scheduled necropsies.  No adverse clinical signs were noted.  F0
maternal toxicity was expressed at a dose level of 45 mg/kg/day by a
single mortality and reductions in body weight gain and food
consumption.  No maternal toxicity was exhibited at dose levels of 2.5
and 10 mg/kg/day.  F1 developmental toxicity was expressed at a dose
level of 45 mg/kg/day by early postnatal mortality and reduced
post-weaning body weights.  No developmental toxicity was exhibited at
dose levels of 2.5 and 10 mg/kg/day.  Deficits in auditory startle
response occurred in the 45 mg/kg/day group F1 males and females without
concomitant effects in other functional endpoints (FOB), neuropathology
or brain morphometry.  Based on the results of this study, the NOAEL for
maternal toxicity, developmental toxicity and developmental
neurotoxicity is considered to be 10 mg/kg/day.

4.  Subchronic Toxicity-  In the 3-month dog feeding study a NOEL of 800
ppm (32 mg/kg/day for both males and females) was established based on
growth retardation and decreased food consumption.

In the 3-month rat feeding study a NOEL of 200 ppm (12.4 and 14.6
mg/kg/day respectively for male and female rats) was established based
on liver cell hypertrophy at a dose of 800 ppm.

In the 3-month mouse feeding study a NOEL of 400 ppm (53.2 and 64.6
mg/kg/day respectively for male and female mice) was established based
on increased liver/body weight ratio and decreased cholesterol in
females at 800 ppm.

A 13 week dietary neurotoxicity study for acetamiprid established a NOEL
of 200 ppm (14.8 and 16.3 mg/kg for male and female rats) based on
reduced body weight and food consumption decreases at 800 ppm.  There
was no evidence of neurotoxicity.

A 21 day dermal study in rabbits at dose levels up to 1000 mg/kg/day
caused no systemic toxicity, dermal irritation or histomorphological
lesions in either sex tested.

5.  Chronic Toxicity-  In the 1-year dog study, the NOEL was established
at 600 ppm (20 and 21 mg/kg/day for male and female dogs, respectively)
based on growth retardation and decreased food consumption at a dose of
1500 ppm.

In the 18-month mouse study the NOEL was established at 130 ppm (20.3
and 25.2 mg/kg/day for male and female mice) based on growth retardation
and hepatic toxicity at 400 ppm.

In the 2-year rat study the NOEL was 160 ppm (7.1 and 8.8 mg/kg/day for
male and female rats) based on growth retardation and hepatic toxicity.
There were no indications of carcinogenicity in either the rat or mouse
chronic studies.

6.  Animal metabolism-  The metabolism of acetamiprid is well understood
and the primary animal metabolite is IM-2-1.

7.  Metabolite Toxicology-  Testing of IM-2-1 demonstrated that it is
significantly less toxic than the parent acetamiprid and it is not being
considered as part of the total toxic residue in plants, therefore no
tolerance is being requested by the registrant.  The acute oral LD50 of
IM-2-1 is 2543 mg/kg for male rats and 1762 mg/kg for female rats.

8.  Endocrine disruption-  Acetamiprid does not belong to a class of
chemicals known or suspected of having adverse effects on the endocrine
system.  Developmental toxicity studies in rats and rabbits and a
reproductive study in rats gave no indication that acetamiprid has any
effects on endocrine function.  The chronic feeding studies also did not
show any long-term effects related to endocrine systems.

C. Aggregate Exposure

1. Dietary-  Acute and chronic dietary analyses were previously
conducted to estimate exposure to potential acetamiprid residues.  Acute
dietary exposure estimates used food consumption information from the
USDA’s 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake
by Individuals (CSFII).  Anticipated residues derived from field trial
data for certain commodities (apples; broccoli; cabbage, celery;
grapefruit; grapes, lettuce; oranges; pears; peppers; spinach; tomatoes;
stone fruit; and cucurbits) were used and assumed residues present at
tolerance levels were used for all other commodities.  Percent crop
treated (PCT) information for some of the registered commodities
(apples, broccoli, celery, lettuce pears, grapefruit, grapes, oranges,
peppers, spinach, and tomatoes) was used but 100 PCT was assumed for all
other commodities.  For chronic exposure scenarios, tolerance level
residues were assumed in all previously registered food and 100 PCT for
all crops except apples and oranges.  Exposure estimates to drinking
water were previously made based on conservative tier one FIRST and
SCIGROW modeling.  Overall the additional dietary exposure from the use
of acetamiprid on clover grown for seed and an increase in the tolerance
level for Crop Subgroup 13-07F (Fruit, small, vine, climbing, except
fuzzy kiwifruit) is expected to remain within acceptable levels.

2.  Food-  The acute dietary exposure estimates from food and water
previously occupied 35% of the acute Population Adjusted Dose (aPAD) at
the 99.9th percentile for children 1-2 years old, the population group
receiving the greatest exposure.  The acute RfD was based on the NOAEL
of 10 mg/kg/day in the developmental neurotoxicity study in rats.  Any
increase in acute dietary exposure from the use of acetamiprid on clover
grown for seed and an increase in tolerance level for Crop Subgroup
13-07F (Fruit, small, vine, climbing, except fuzzy kiwifruit) is
expected to remain within acceptable levels.

Previously the chronic exposure to acetamiprid from food and water
utilized 35% of the chronic Population Adjusted Dose (cPAD) for children
1 to 2 years old, the population group with greatest exposure.  Any
increase in chronic dietary exposure from the use of actetamiprid on
clover grown for seed and an increase in tolerance level for Crop
Subgroup 13-07F (Fruit, small, vine, climbing, except fuzzy kiwifruit)
is expected to remain within acceptable levels.

The cPAD was based on the NOEL of 7.1 mg/kg/day in the chronic rat study
and an uncertainty factor of 100 to account for inter- and intra-species
variations.  In the Final Rule establishing tolerances for acetamiprid
on stone fruit, tree nuts, succulent legumes and cucurbits (Federal
Register, Vol. 72, No. 228 / Wednesday, November 28, 2007 / Page 67256),
EPA determined that reliable data show that it would be safe for infants
and children to reduce the FQPA safety factor to 1X.

3.  Drinking Water-  Based on the First Index Reservoir Screening Tool
(FIRST) and Screening Concentration in Ground Water (SCI-GROW) models,
the previously estimated environmental concentrations (EECs) of
acetamiprid for acute exposures were 20.1 parts per billion (ppb) for
surface water and 1.6 ppb for ground water.  The EECs for chronic
exposures were estimated to be 4.9 ppb for surface water and 1.6 ppb for
ground water.  Modeled estimates of drinking water concentrations were
directly entered into the dietary exposure model.  For acute and chronic
dietary risk assessment the water concentration values of 20.1 ppb and
4.9 ppb, respectively, were used to assess the contribution to drinking
water.

4.  Non-dietary exposure-  Acetamiprid is registered for use as a
pre/post-construction termiticide, as a crack-and-crevice or spot spray
inside structures, and as a gel bait formulation for control of ants and
cockroaches in residential settings.  Homeowner handler exposure is not
expected since termiticide applications are made by professional Pest
Control Operators (PCOs) only and post-application exposure is not
expected since applications are below ground or in hard-to-reach
structure components.  Crack-and-crevice or spot sprays indoors are
restricted to PCO applicators only so there is no exposure to
residential handlers while post-application exposure is negligible due
to the limited surface area being treated.  Residential handlers may be
exposed dermally from the use of gel baits but inhalation exposure is
not expected due to the low vapor pressure of acetamiprid.
Post-application exposure to gel baits is negligible due to the
unlikelihood of homeowners revisiting crack-and-crevice or spot areas
where baits are applied, the low vapor pressure of acetamiprid, the
incorporation of a bittering agent in the formulation, and the
incorporation of the gel in a bait station.

For aggregate food, drinking water, and residential short term
exposures, the Margin of Exposure (MOE) was calculated to be 900 for
adults 20 to 49 years old and 930 for adults 50 years and older who
apply gel bait acetamiprid products.  Adults were considered to be the
most likely to be exposed from residential uses of acetamiprid as well
as food and drinking water exposure.  Intermediate aggregate exposure
was determined to be the same as short term aggregate exposure since the
short term and intermediate term dermal exposures and endpoints for
acetamiprid are the same.  The dietary exposure pathway is the only
source of chronic exposure to acetamiprid.  Therefore chronic aggregate
exposure and risk estimate are equivalent to the chronic dietary and
risk estimate.

Therefore, there is reasonable certainty that no harm will result from
aggregate (food, drinking water, and residential) exposure to
acetamiprid residues.

 D.  Cumulative Effects-   A determination has not been made that
acetamiprid has a common mechanism of toxicity with other substances.
Acetamiprid does not appear to produce a common toxic metabolite with
other substances.  A cumulative risk assessment was therefore not
performed for this analysis.

E.  Safety Determination

1.  U.S. Population-  Using the conservative assumptions described above
and based on the completeness and reliability of the toxicity data, it
is concluded that aggregate exposure from the existing and proposed uses
of acetamiprid will utilize < 100% of the acute Population Adjusted Dose
(aPAD) and < 100% of the chronic Population Adjusted Dose (cPAD) for the
U.S. Population.  These percentages are likely to be much less as more
realistic exposure data and models are developed.  EPA generally has no
concern for exposures below 100% of the aPAD and cPAD.  Drinking water
levels of comparison (DWLOCs) based on these exposure estimates are much
greater than conservative estimated concentrations, and would be
expected to be well below the 100% level.  Existing uses allowing
residential applications of acetamiprid both indoors and outdoors
resulted in short-term applicator exposure MOEs of greater than 1,500
and short-term post-application exposure MOEs of greater than 2,000 for
adult and toddler exposure scenarios.  For intermediate-term
post-application exposure following indoor applications, the MOEs for
adults and toddlers were greater than 2,500. Therefore, there is a
reasonable certainty that no harm will occur to the US Population from
aggregate exposure to acetamiprid.

2.  Infants and Children-.  In multi-generation reproduction and
teratology studies, no adverse effects on reproduction were observed in
either rats or rabbits.  In the long term feeding studies in rats and
mice there was no evidence of carcinogenicity.  Acetamiprid was not
mutagenic under the conditions of testing. There is no indication of
developmental neurotoxicity associated with acetamiprid.  Using the
conservative assumptions described in the exposure section above,  the
percent of the acute Population Adjusted Dose (aPAD) that may be used is
< 100% for children 1-2 years old (the most highly exposed infant and
children sub-group) and < 100% of the chronic Population Adjusted Dose
(cPAD).  As in the adult situation, drinking water levels of comparison
are much higher than the worst case drinking water estimated
concentrations and would be expected to use well below 100% of the RfD,
if they occur at all.  MOEs resulting from post-application exposure to
acetamiprid in residential areas are greater than 2,000.  Therefore,
there is a reasonable certainty that no harm will occur to infants and
children from aggregate exposure to residues of acetamiprid.

F.  International Tolerances-

Acetamiprid is registered for use on food crops in several countries
outside the United States.


[Federal Register: August 27, 2009 (Volume 74, Number 165)]
[Rules and Regulations]
[Page 43640-43642]
[DOCID:fr27au09-11]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390

Regulatory Guidance Concerning Applicability of the Federal Motor
Carrier Safety Regulations to Mobile Cranes Operated in Interstate
Commerce

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of regulatory guidance.

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SUMMARY: The FMCSA announces a revision of the regulatory guidance
concerning the applicability of the Federal Motor Carrier Safety
Regulations (FMCSRs) to mobile cranes operated in interstate commerce.
The regulatory guidance is presented in a question-and-answer format.
The guidance is generally applicable to drivers, commercial motor
vehicles (CMVs), and motor carrier operations subject to the FMCSRs.
All prior interpretations and regulatory guidance concerning the
applicability of the FMCSRs to operations of mobile cranes in
interstate commerce issued in the Federal Register, as well as
memoranda and letters, may no longer be relied upon as authoritative if
they are inconsistent with the guidance published today. This guidance
will provide the motor carrier industry and Federal, State, and local
law enforcement officials with uniform information for assessing the
applicability of the FMCSRs to the operations of mobile cranes.

DATES: Effective Date: This regulatory guidance is effective on August
27, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations,<PHONE_NUMBER>, Federal Motor Carrier Safety
Administration, 1200 New Jersey Ave., SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to
regulate drivers, motor carriers, and vehicle equipment. It requires
the Secretary to prescribe regulations on CMV safety. The regulations
shall prescribe minimum safety standards for CMVs. At a minimum, the
regulations shall ensure that--(1) CMVs are maintained, equipped,
loaded, and operated safely; (2) the responsibilities imposed on
operators of CMV's do not impair their ability to operate the vehicles
safely; (3) the physical condition of operators of CMV is adequate to
enable them to operate the vehicles safely; and (4) the operation of
CMVs does not have a deleterious effect on the physical condition of
the operators. (49 U.S.C. 31136(a)) Section 211 of the 1984 Act also
grants the Secretary broad power, in carrying out motor carrier safety
statutes and regulations, to ``prescribe recordkeeping and reporting
requirements'' and to ``perform other acts the Secretary considers
appropriate.'' (49 U.S.C. 31133(a)(8) and (10))
    The Administrator of FMCSA has been delegated authority under 49
CFR 1.73(g) to carry out the functions vested in the Secretary of
Transportation by 49 U.S.C. chapter 311, subchapters I and III,
relating to commercial motor vehicle programs and safety regulation.
    This document provides regulatory guidance to the public with
respect to the applicability of the Federal Motor Carrier Safety
Regulations (FMCSRs) to the operations of mobile cranes in interstate
commerce.
    Members of the motor carrier industry and other interested parties
may also access the guidance in this document through the FMCSA's
Internet site at http://www.fmcsa.dot.gov.
    Specific questions addressing any of the interpretive material
published in this document should be directed to the contact person
listed earlier under FOR FURTHER INFORMATION CONTACT, or the FMCSA
Division Office in each State.

Basis for the Notice

    The CMVs are defined in 49 CFR 390.5 as any self-propelled or towed
motor vehicle used on a highway in interstate commerce to transport
passengers or property when the vehicle--
    (1) Has a gross vehicle weight rating or gross combination weight
rating, or gross vehicle weight or gross combination weight, of 4,536
kg (10,001 pounds) or more, whichever is greater; or
    (2) Is designed or used to transport more than 8 passengers
(including the driver) for compensation; or
    (3) Is designed or used to transport more than 15 passengers,
including the driver, and is not used to transport passengers for
compensation; or
    (4) Is used in transporting material found by the Secretary of
Transportation to be hazardous under 49 U.S.C. 5103 and transported in
a quantity requiring placarding under regulations prescribed by the
Secretary under 49 CFR, subtitle B, chapter I, subchapter C.
    Paragraph (1) of the definition applies to the vehicles that are
the subject of this notice.
    Question 9 under 49 CFR 390.5 of the existing regulatory guidance
concerns the applicability of the FMCSRs to mobile cranes. The current
guidance was published in the November 17, 1993 Federal Register (58 FR
60734) and again in the April 4, 1997 Federal Register (62 FR 16370).
It reads as follows:
    Question 9: Are mobile cranes operating in interstate commerce
subject to the FMCSRs?
    Guidance: Yes, the definition of CMV encompasses mobile cranes.
    In a September 21, 2000, decision concerning a civil penalty
enforcement case entitled In the Matter of Williams Equipment
Corporation (Docket No. FHWA-1997-2433), the Acting Chief Safety
Officer (CSO) of FMCSA found this regulatory guidance ``unpersuasive.''
The Acting CSO cited Christensen v. Harris County, 120 S.Ct. 1655, 1657
(2000):

    Interpretations such as those in opinion letters--like
interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law--do not
warrant Chevron-style deference. They are `entitled to respect,' but
only to the extent that they are persuasive [citation omitted],
which is not the case here. [Emphasis supplied in Williams Equipment
omitted.]

Although the Acting CSO assigned Williams Equipment for hearing, the
matter was settled without a decision on its merits.
    On June 1, 2006, the Kansas Corporation Commission (KCC) issued an
Order Addressing Jurisdiction to Midwest Crane and Rigging. The KCC
found that Midwest Crane and Rigging is a ``motor carrier'' as defined
in Kansas statutes and is subject to Kansas safety regulations.
Therefore, the KCC had jurisdiction over Midwest Crane. In arriving at
that conclusion the KCC first determined that the self-propelled cranes
were motor vehicles under Kansas statute. Midwest Crane petitioned for
reconsideration before the KCC, but, on July 17, 2006, the KCC issued
an Order on Reconsideration that left in place its findings. Midwest
Crane then appealed to the Kansas courts. On July 3, 2007, the District
Court of Shawnee County, Kansas, Division Seven, vacated the KCC's
Order Addressing Jurisdiction and remanded the case to the KCC to
reopen the hearing to attempt to develop facts for the record. The
District Court stated,

    No statute or regulation was provided to explain the rationale
of classifying of self-propelled cranes as motor carriers. Instead
the [Commission] relies upon a ``guidance answer'' posted on the
[FMCSA] website, without providing a basis or qualification for such
classification. The qualifications and rationales for the ``guidance
answer'' are similarly unknown. (Midwest Crane and Rigging v. Kansas
Corporation Commission, Case No. 06-C-1213, Memorandum Opinion and
Entry of Judgment, July 3, 2007, at 11.)

    In its response to a June 5, 2007, Notice of Claim issued by the
Kansas Division Administrator of the FMCSA, Midwest Crane continued to
contend it was not a private motor carrier subject to FMCSA's
jurisdiction. The firm reasoned that a mobile crane is a unified device
that includes a transporting mechanism, that the crane and its
transporting mechanism operate as in integrated units, and that there
is no vehicle that exists separately from the crane.
    On August 1, 2008, the Field Administrator for the FMCSA Midwestern
Service Center filed a Motion for Final Order. Midwest Crane answered
the Motion on September 15, 2008, continuing to assert that a crane is
a unified device and not a commercial motor vehicle. The matter was
then referred to the FMCSA CSO who issued Decision FMCSA-2007-29184 on
March 30, 2009.
    In the Decision, the CSO noted that the Agency had not responded to
the former Acting CSO's concerns in 2000, so the matter of FMCSA's
jurisdiction over operators of self-propelled cranes previously was not
clear. For that reason, no civil penalty was imposed on Midwest Crane.
However, the Agency noted that Federal case law provides a
straightforward precedent for the regulatory guidance. In Harshman v.
Well Service, Inc., (248 F.Supp. 953, 958 (D.C. Pa, 1964), aff'd per
curiam, 355 F.2d 206 (3rd Cir. 1965), the United States District Court
for the Western District of Pennsylvania found that firms operating
cement pump trucks, which, like cranes, contained equipment permanently
mounted upon specially constructed vehicles, to be private carriers of
property. The Court noted that:

    It is fair to say that whenever those pump trucks moved in
interstate commerce * * * the prime purpose * * * of such movement
was to transport the pumping equipment * * * to and from a job site.
Plaintiffs contend that there is no such `property' transported by
the trucks, since, by their view, the pumping equipment has to be
viewed as `unitized' in the truck itself. This view I regard as
highly unrealistic. The pumping equipment has nothing to do with the
mechanical function of the trucks. Had it not been permanently
affixed to the truck chassis, it is scarcely imaginable that
plaintiffs would contest its classification in the category of
`property' for transportation. It was permanently affixed, however,
thereby enhancing the comparative safety with which it could be
transported on the public highways. It would be ironic in the
extreme if I were to interpret this laudable safety measure as
removing the defendant from the ambit of the Interstate Commerce
Commission's power to regulate the safety of operations of carriers
in interstate commerce. The pumping equipment * * * carried on the
pump trucks did constitute `property', was owned by the defendant,
and was transported in interstate commerce in furtherance of
defendant's commercial enterprise.

    The CSO noted that similarly, with respect to Midwest Crane, the
primary purpose of the movement of the vehicles in interstate commerce
is to transport the crane apparatus, which was permanently affixed to
the vehicles, to and from job sites to perform a commercial service.
Enhancing the safety with which this equipment may be transported
should not remove the motor carrier from the jurisdiction of the Agency
charged with regulating the safety of CMVs. The mobile cranes of
concern have gross vehicle weight ratings of from 56,000 pounds to
129,000 pounds, far more than the minimum 26,001 pounds required to
meet the definition of a CMV for purposes of the alcohol- and drug-
testing requirements, or the minimum 10,001 pounds required to meet the
definition of a CMV with regard to other FMCSR requirements.
    The CSO stated that clearly, self-propelled cranes should not be
removed from the Agency's jurisdiction merely because the cranes are
permanently affixed to the vehicles on which they reside. To allow
these vehicles to remain outside the reach of the safety arm of this
Agency would put the motoring public at great risk. Accordingly, self-
propelled cranes are commercial motor vehicles and the motor carriers
that operate them are private motor carriers subject to FMCSA's
jurisdiction.
    For the reasons presented above, FMCSA revises the Question 9 of
the Regulatory Guidance to Section 390.5 of the FMCSRs, published
online at http://www.fmcsa.dot.gov/rules-regulations/administration/
fmcsr/fmcsrruletext.asp?chunkKey=0901633480023260.

Regulatory Guidance

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

Sections Interpreted

Section 390.5 Definitions

    Replace Question 9 to read as follows:
    Question 9: Are mobile cranes operating in interstate commerce
considered CMVs, and are they subject to the FMCSRs?
    Guidance: The definition of CMV encompasses mobile cranes. Unlike
the off-road motorized construction equipment discussed in Guidance
Questions 7 and 8 above, mobile cranes are readily capable of traveling
at highway speeds, over extended distances, and in the mixed traffic of
public highways. Although the functions a crane performs are distinct
from the transportation provided by a truck, the ready mobility of the
crane depends on its permanent integration with a truck chassis. The
truck chassis is equipped with wheels, tires, brakes, a suspension
system, and other components. The mobile crane itself, like an empty
CMV (see Guidance Question 6), is considered property.

    Issued on: August 19, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-20618 Filed 8-26-09; 8:45 am]


[Federal Register: May 11, 2009 (Volume 74, Number 89)]
[Notices]
[Page 21802-21803]
[DOCID:fr11my09-497]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2009-0295; FRL-8902-9]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Rule for the Inclusion of Delaware and New Jersey in
the Clean Air Insterstate Rule--Final Rule; EPA ICR No. 2184.03, OMB
Control No. 2060-0584

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: In compliance with the Paperwork Reduction Act (PRA) (44
U.S.C. 3501 et seq.), this document announces that EPA is planning to
submit a request to renew an existing approved Information Collection
Request (ICR) to the Office of Management and Budget (OMB). This ICR is
scheduled to expire on July 31, 2009. Before submitting the ICR to OMB
for review and approval, EPA is soliciting comments on specific aspects
of the proposed information collection as described below.

DATES: Comments must be submitted on or before July 10, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0295 by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Air and Radiation Docket and Information Center,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
     Hand Delivery: Environmental Protection Agency, EPA Docket
Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20004. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0295. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Karen VanSickle, Clean Air Markets
Division, Office of Air and Radiation, (6204J), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

How Can I Access the Docket and/or Submit Comments?

    EPA has established a public docket for this ICR under Docket ID
No. EPA-HQ-OAR-2009-0295, which is available for online viewing at
http://www.regulations.gov, or in person viewing at the Air and
Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Reading
Room is<PHONE_NUMBER>, and the telephone number for the Air and
Radiation Docket is<PHONE_NUMBER>.
    Use http://www.regulations.gov to obtain a copy of the draft
collection of information, submit or view public comments, access the
index listing of the contents of the docket, and to access those
documents in the public docket that are available electronically. Once
in the system, select ``search,'' then key in the docket ID number
identified in this document.

What Information is EPA Particularly Interested in?

    Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically
solicits comments and information to enable it to:
    (i) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the Agency,
including whether the information will have practical utility;
    (ii) Evaluate the accuracy of the Agency's estimate of the burden
of the proposed collection of information, including the validity of
the methodology and assumptions used;
    (iii) Enhance the quality, utility, and clarity of the information
to be collected; and
    (iv) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. In particular, EPA is requesting comments from
very small businesses (those that employ less than 25) on examples of
specific additional efforts that EPA could make to reduce the paperwork
burden for very small businesses affected by this collection.

What Should I Consider when I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your
comments:
    1. Explain your views as clearly as possible and provide specific
examples.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used
that support your views.
    4. If you estimate potential burden or costs, explain how you
arrived at the estimate that you provide.
    5. Offer alternative ways to improve the collection activity.
    6. Make sure to submit your comments by the deadline identified
under DATES.
    7. To ensure proper receipt by EPA, be sure to identify the docket
ID number assigned to this action in the subject line on the first page
of your response. You may also provide the name, date, and Federal
Register citation.

What Information Collection Activity or ICR Does this Apply to?

    Affected entities: Entities potentially affected by this action are
Delaware and New Jersey air pollution control agencies.
    Title: Inclusion of Delaware and New Jersey in the Clean Air
Interstate Rule.
    ICR numbers: EPA ICR No. 2184.03, OMB Control No. 2060-0584.
    ICR status: This ICR is currently scheduled to expire on July 31,
2009. An Agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless it displays
a currently valid OMB control number. The OMB control numbers for EPA's
regulations in title 40 of the CFR, after appearing in the Federal
Register when approved, are listed in 40 CFR part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable. The display of OMB control numbers in certain EPA
regulations is consolidated in 40 CFR part 9.
    Abstract: The United States (U.S.) Environmental Protection Agency
(EPA) has a final Rule to add the States of Delaware and New Jersey to
the States that are subject to the Clean Air Interstate Rule (CAIR)
because of their PM2.5 impact on other States and to require
that Delaware and New Jersey report all of the emissions related data
required by CAIR. (Delaware and New Jersey are already affected by
ozone-related requirements in CAIR.) These emissions data reporting
requirements include new reporting requirements and combine these new
requirements with existing requirements from the Consolidated Emissions
Reporting Rule (CERR), the Emission Reporting Requirements for Ozone
State Implementation Plan (SIP) Revisions Relating to Statewide Budgets
for NOX Emissions to Reduce Regional Transport of Ozone
(NOX SIP Call), the Acid Rain Program under Title IV of the
CAA Amendments of 1990, and the Rule to Reduce Interstate Transport of
Fine Particulate Matter and Ozone (Clean Air Interstate Rule, CAIR).
Each of these four existing requirements has an approved ICR in place.
The current ICRs are: for the CERR, ICR 0916.10 (OMB 2060-
0088), for the NOX SIP Call, ICR 1857.03 (OMB 2060-
0445), for the Acid Rain Program, ICR 1633.13 (OMB 2060-0258),
and for CAIR, ICR 2152.01 (OMB 2060-0570).
    Burden Statement: The annual public reporting and recordkeeping
burden for this collection of information is estimated to average 741
hours per response. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements which have subsequently changed; train
personnel to be able to respond to a collection of information; search
data sources; complete and review the collection of information; and
transmit or otherwise disclose the information.
    The ICR provides a detailed explanation of the Agency's estimate,
which is only briefly summarized here:
    Estimated total number of potential respondents: 2.
    Frequency of response: Varies by task.
    Estimated total average number of responses for each respondent:
370.
    Estimated total annual burden hours: 2,452 hours.
    Estimated total annual costs: $262,772.80. This includes an
estimated burden cost of $242,593.80 and an estimated cost of
$20,179.00 for capital investment or maintenance and operational costs.

What is the Next Step in the Process for this ICR?

    EPA will consider the comments received and amend the ICR as
appropriate. The final ICR package will then be submitted to OMB for
review and approval pursuant to 5 CFR 1320.12. At that time, EPA will
issue another Federal Register notice pursuant to 5 CFR
1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the
opportunity to submit additional comments to OMB. If you have any
questions about this ICR or the approval process, please contact the
technical person listed under FOR FURTHER INFORMATION CONTACT.

    Dated: May 4, 2009.
Janice K. Wagner,
Acting Director, Clean Air Markets Division, Office and Air and
Radiation.
[FR Doc. E9-10965 Filed 5-8-09; 8:45 am]

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[Federal Register Volume 87, Number 238 (Tuesday, December 13, 2022)]
[Notices]
[Page 76228]
[FR Doc No: 2022-27154]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meetings

TIME AND DATE: 4:00 p.m. on Friday, December 9, 2022.

PLACE: The meeting will be held via remote means and/or at the
Commission's headquarters, 100 F Street NE, Washington, DC 20549.

STATUS: This meeting will be closed to the public.

MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners,
the Secretary to the Commission, and recording secretaries will attend
the closed meeting. Certain staff members who have an interest in the
matters also may be present.
    In the event that the time, date, or location of this meeting
changes, an announcement of the change, along with the new time, date,
and/or place of the meeting will be posted on the Commission's website
at https://www.sec.gov.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR
200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10),
permit consideration of the scheduled matters at the closed meeting.
    The subject matter of the closed meeting will consist of the
following topics:
    Institution and settlement of injunctive actions;
    Institution and settlement of administrative proceedings;
    Resolution of litigation claims; and
    Other matters relating to examinations and enforcement proceedings.
    At times, changes in Commission priorities require alterations in
the scheduling of meeting agenda items that may consist of
adjudicatory, examination, litigation, or regulatory matters.

CONTACT PERSON FOR MORE INFORMATION: For further information; please
contact Vanessa A. Countryman from the Office of the Secretary at (202)
551-5400.

    Authority:  5 U.S.C. 552b.

    Dated: December 9, 2022.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2022-27154 Filed 12-9-22; 4:15 pm]
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