Information Collection Request

Supporting Statement
for the National Listing of Fish Advisories

Renewal ICR

August 31, 2014

EPA ICR Number 1959.05
OMB Control No. 2040-0226
(Non-Regulatory)

U.S. Environmental Protection Agency
Office of Water
Office of Science and Technology
1200 Pennsylvania Avenue, NW
Washington, DC 20460

TABLE OF CONTENTS

Section	Page
1.	Identification of the Information Collection	1
1(a)	Title of the Information Collection	1
1(b)	Short Characterization/Abstract	1
2.	Need for and Use of the Collection	3
2(a)	Need/Authority for the Collection	3
2(b)	Practical Utility/Users of the Data	3
3.	Non-duplication, Consultations, and Other Collection Criteria	4
3(a)	Non-duplication	4
3(b)	Public Notice Required Prior to ICR Submission to OMB	5
3(c)	Consultations	5
3(d) 	Effects of Less Frequent Collection	5
3(e)	General Guidelines	6
3(f) 	Confidentiality	6
3(g)	Sensitive Questions	6
4.	The Respondents and the Information Requested	6
4(a)	Respondents/SIC Codes	6
4(b)	Information Requested	6
(i)	Data items, including record keeping	6
(ii)	Respondent Activities	7
5. 	The Information Collected - Agency Activities, Collection Methodology, and Information Management	7
5(a)	Agency Activities	7
5(b)	Collection Methodology and Management	8
5(c)	Small Entity Flexibility	9
5(d)	Collection Schedule	9
6.	Estimating the Burden and the Cost of the Collection	9
6(a)	Estimating Respondent Burden	9
6(b)	Estimating Respondent Costs	11
(i)	Estimating Labor Costs	11
(ii)	Estimating Capital and Operations and Maintenance Costs	11
(iii)	Capital/Start-up vs. Operating and Maintenance Costs	12
(iv)	Annualizing Capital Costs	12
6(c)	Estimating Agency Burden and Cost	14
6(d)	Estimating the Respondent Universe and Total Burden and Costs	17
6(e)	Bottom Line Burden Hours and Cost Tables	17
(i)	Respondent Tally	17
(ii)	The Agency Tally	17
(iii)	Variations in the Annual Bottom Line	18
6(f)	Reasons for Change in Burden	18
6(g)	Burden Statement	18
Appendix A  -  Relevant Sections of Statues, Regulations, or Judicial/Administrative Decrees Enabling the Collection of Information for the National Listing of Fish Advisories	A-1
Appendix B  -  2011 Fish Advisory Fact Sheet	B-1
Appendix C  -  Federal Register Notice for Original and Renewal ICR (2000, 2003, 2007, 2010)	C-1

1.	Identification of the Information Collection
1(a)	Title of the Information Collection
Information Collection Request for the National Listing of Fish Advisories
1(b)	Short Characterization/Abstract
The National Listing of Fish Advisories is an integral component of several key environmental assessment activities. In February 1998, U.S. President Bill Clinton announced the Clean Water Action Plan to protect public health and restore the nation's waterways by providing states, Tribes, and communities with appropriate tools and resources. Under the Clean Water Action Plan, the U.S. Environmental Protection Agency (EPA) implemented a series of key actions to ensure effective public notice of fish and shellfish consumption risks and reduce chemical contamination to levels that assure that locally caught fish and shellfish are safe to regularly eat. This survey is one of the key actions under the Clean Water Action Plan. In April 1999, the Agency sent letters concerning fish consumption advisories to the heads of all state public health, environmental, and natural resource management agencies, as well as to Tribes that operate the National Water Program. This letter emphasized the importance of a risk-based fish advisory program to protect the health of women of child-bearing age, children, and people who eat large amounts of locally caught fish for economic or cultural reasons.
A critical concern to EPA is water quality in our nation's waters. The release of chemical contaminants from industrial production, increasing urbanization, and the introduction of new pesticides in agriculture pose potentially serious human health problems for the nation's recreational waters. These adverse effects have been one of EPA's long-standing concerns. They are also directly related to such Clean Water Act (CWA) responsibilities as water quality standards and surface water quality, and to the Agency's effort to ensure that U.S. waters are "fishable" and "swimmable." In addition, recent studies have confirmed that adverse health effects can result from consumption of fish from chemically contaminated waters. Based on results from the 2011 National Listing of Fish Advisories (NLFA) fact sheet, there are currently 4,821 advisories in effect in all 50 states, the District of Columbia, the U.S. Territories of American Samoa and Guam, and five Native American Tribes, advising consumers to limit or avoid consumption of certain species of chemically contaminated fish.
EPA believes there is a continuing need to maintain the overall quality and availability of public information concerning fish advisories, which includes, but is not limited to, water quality standards, monitoring and assessment activities, and the issuance of advisories and bans. Primary responsibility for these activities lies with each state; however, several state agencies often share responsibilities for these activities and the advisory results have not always been consistently reported. In 1993, EPA began compiling information on fish advisories provided by the states in its biannual 305(b) Water Quality Inventory Reports; however, EPA soon determined that some states did not report up-to-date information about fish advisories in their 305(b) reports. In many states, the water quality or environmental agencies were responsible for preparing the 305(b) report, while the state health department was generally primarily responsible for issuing the advisories. To obtain the most updated information, EPA's Office of Water began conducting a voluntary annual Fish Advisory Survey in 1994 as part of the data collection activities of the National Water Quality Inventory Reports (CWA Sections 305[b], 303[d], 314[a], and 106[e]) (EPA ICR No. 1560.04; Office of Management and Budget [OMB] Control No. 2040-007) to obtain the most up-to-date information on fish advisories. The Agency began surveying the state health departments or other state agencies specifically responsible for the issuance of fish advisories. This information has been archived in EPA's NLFA database since 1994.
In 2000, a new collection instrument was developed for the state Fish Advisory Program Survey because there were material changes in the proposed collection instrument and the number of respondents from which the information was to be collected included additional Tribal groups that have issued advisories, Tribal groups with delegated power with respect to water quality standards, and Tribal groups with delegated power pending.
       The current NLFA survey questionnaire is used to obtain quantitative advisory information on the number of new advisories issued by each state, territory, and Tribal organization annually, including information on the:
         #          Waterbody under advisory, including the geographic location and extent of the advisory.
Fish or shellfish species (and size ranges) included in each advisory.
Chemical contaminant(s) identified in the advisory and the chemical residue levels detected in various fish species sampled.
Waterbody type encompassed by advisory (e.g., lake, river, estuary, coastal waters).
As in previous years, this information will be used to update the NLFA advisory information, compile and update the geographic information system (GIS) database for all advisories, and enhance and update the electronic fish tissue contaminant residue datafile.
EPA assembled the information collected under the previous Information Collection request (ICR) into an electronic database and graphic formats that can be readily analyzed and shared with responsible parties (e.g., EPA program and regional offices and other federal, state, territorial, and Tribal agencies), as well as with the general public. Survey results are distributed in Fish Advisory Fact Sheets and are available on the Internet at EPA's "National Listing of Fish Advisories" Web site at http://water.epa.gov/scitech/swguidance/fishshellfish/fishadvisories/advisories_index.cfm. Information from these surveys has stimulated nationwide dialogue on fish consumption advisories involving agencies and the public; it is being used to identify and clarify issues that will lead to the continued development of national guidance for states on sampling and analysis, risk assessment procedures, risk management practices, and risk communication procedures that will further protect human health.
The nationwide collection of fish advisory information began in 1994 with a survey of the 50 states, the District of Columbia, and U.S. territories (Guam, American Samoa, Puerto Rico, and the U.S. Virgin Islands) and the Great Lakes Indian Fish & Wildlife Commission, involving a total of 56 potential respondents. In 2000, the fish advisory survey added 36 Tribal agencies and will continue to survey these same Tribal agencies, as well as the original 56 respondents over the 3-year period of this ICR (2014 to 2017); thus the EPA estimates that up to 92 questionnaires will be sent. The actual cost for a respondent to complete the questionnaire is anticipated to decrease with the elimination of the State Fish Advisory Program Questionnaire and because only information that has changed during the preceding year will be requested. When the survey is implemented, the total annual respondent cost under this ICR is estimated to be $73,116.05 (20.48 hours per year at an average labor rate of $38.48 per hour per respondent for 92 respondents).
2.	Need for and Use of the Collection
2(a)	Need/Authority for the Collection
EPA needs this information to determine whether recreational and subsistence fishers are at additional risk of exposure to chemical contaminants through their consumption of locally caught fish and shellfish. The survey will provide data on the types of contaminants that trigger the issuance of advisories, the monitoring designs the states used with respect to the numbers of samples collected and number of stations surveyed, the number of chemical contaminants being analyzed in fish tissue, the risk assessment methodology currently being used to evaluate the potential health risk to fish consumers, and how advisory information is being communicated to the target fish-consuming population.
This survey is one of the key actions under the Clean Water Action Plan. In February 1998, the Clean Water Action Plan was initiated to protect public health and restore the nation's waters by providing states, territories, and Tribes with appropriate tools and resources. Under the Clean Water Action Plan, EPA is implementing a series of key actions to ensure that recreational and subsistence caught fish are safe for human consumption. The national survey is central to EPA's efforts to assess and improve existing fish advisory programs nationwide and to provide important public health information.
EPA is collecting this information under the authority of CWA section 104, which provides for the collection of information to be used to protect human health and the environment. Copies of the relevant section of the CWA are provided in Appendix A.
2(b)	Practical Utility/Users of the Data
EPA uses information collected in the NLFA to address issues in three specific areas for state fish advisory programs:
Enhancing the public's right-to-know about the safety of fish and shellfish harvested from local waters by making this information available in the NLFA database.
Improving the scientific and policy foundation in support of state, territorial, Tribal, and local actions.
Providing up-to-date sampling and analysis methods, risk assessment, risk management, and risk communication procedures for the states to use to better protect the health of recreational and subsistence fishers in a more timely and comprehensive manner.
The information collected in this survey will be used to update the existing NLFA database. This information will be compiled to determine the status and nature of chemical contamination in the nation's waters, the level of effort by jurisdictions to monitor and evaluate fish tissue residue data at their monitoring sites, and the location and geographic extent of fish advisories and bans issued each year. EPA will use the analysis to plan more effective research and policies to reduce risks to consumers of locally caught, chemically contaminated fish.
The Office of Water uses and will continue to use the information, especially the state and national summary data, to examine the success of current advisory programs. The Office of Water will share this information with other program offices, such as the Office of Research and Development and the Office of Policy, Economics and Innovation, to evaluate scientific research needs and policy implications. EPA Regions will use the information to address concerns regarding fish advisories and monitoring programs. The Centers for Disease Control and Prevention and other federal agencies will also be able to use this information. The information compiled in this survey will permit state, Tribal, and local agencies, such as public health agencies, environmental protection agencies, and fish and wildlife departments, to easily review cumulative information on monitoring programs and fish advisories for the purpose of developing public information materials (e.g., fishing regulation brochures) and prioritizing resources to address water quality concerns directly related to chemical contamination of fish.
Summary and individual state data will also be made available to non-governmental organizations and to the public. By accessing the data through the Internet, the public will be able to readily determine whether the waterbody they want to fish has been monitored to assess the level of chemical contamination in the fish and whether an advisory or ban has been issued. This will provide the consumers with information that they can use to make informed decisions concerning the waterbodies they fish in and the amount and types of fish they consume.
The information to be collected from all respondents includes the name, address, and other contact information for the agency responsible for issuing the fish advisories and answering public or technical inquiries. These references provide a means for obtaining current fish advisory information, as well as professional networking resources and referrals for improving water quality at our nation's fishable waterbodies. A copy of the most recent fish advisory fact sheet distributed to the public via the Internet is provided in Appendix B.
3.	Non-duplication, Consultations, and Other Collection Criteria
3(a)	Non-duplication
The fish advisory program information requested from respondents under this renewal ICR has been collected in some form since 1994 and is not currently available from any other sources. The survey of fish advisories has been performed since 1994 under previously approved ICRs for the 305(b) Water Quality Collection Effort (OMB Control No. 2040-007; EPA ICR No. 1560.03 and 1560.04); however, Tribal organizations had not been comprehensively targeted by these surveys. EPA examined the information collected from each of the previous surveys and determined that none of them addressed all of its needs to inventory the locations of the nation's waterbodies under advisories, as well as to compile nationwide information on state, territory, and Tribal fish advisory programs.
In 2000, because the Office of Water wanted to obtain additional information on fish advisories from the 50 states, the District of Columbia, five U.S. territories, and additional Tribal groups, a new ICR was submitted to OMB for approval to cover additional questions and respondents not covered by the 305(b) Water Quality Collection Effort. Since 2000, the survey of fish advisories has been performed under an approved ICR for the National Listing of Advisories (OMB Control No. 2040-0226; EPA ICR No. 1959.01, expiring on 01/31/2004; EPA ICR No. 1959.02, expiring on 09/30/2007; EPA ICR No. 1959.03, expiring on 02/28/2011; EPA ICR No. 1959.04, expiring on 11/30/2014). A copy of these Federal Register notices is provided in Appendix C.
3(b)	Public Notice Required Prior to ICR Submission to OMB
In compliance with the 1995 Paperwork Reduction Act, EPA solicited comments for a 60-day period on this ICR. Comments were requested on the proposed ICR renewal in the Federal Register on June 10, 2014 at 79 FR 33188. The comment period expired on August 11, 2014. No comments were received during the comment period.
3(c)	Consultations
 To prepare the survey for the collection effort covered under this renewal ICR, EPA reviewed the questionnaire used to collect information for the 2010 NLFA data collection efforts. The results were used to refine the questionnaire in order to encourage greater respondent participation, and improve data analysis and interpretation. The current survey instrument is based on this review; consultation with the states and tribes at the 2000, 2001, 2002, 2004, 2005, 2007, and 2009 EPA Fish Forums attended by state fish advisory contacts; recent internal EPA discussions with various program offices; and other considerations.
3(d) 	Effects of Less Frequent Collection
The survey will be sent to respondents once per year, in the early spring. The information is needed annually to provide up-to-date information on monitoring and fish advisories that occurred during the previous 12-month (calendar year) fishing season. Pollution sources and other circumstances change regularly, so it is important to document the changes in fish advisories as soon as possible after the states' issue their yearly fishing regulations, including advisories, typically during spring. Jurisdictions that are responsible for fish monitoring generally collect fish each year during summer and fall, and then send the fish tissue samples for analysis during fall and winter. Risk assessments are conducted when residue analysis of the fish tissue samples have been completed, typically in late winter.
Regular annual collections of this information over a period of several years have shown that the number of fish advisories continues to increase nationwide. In addition, this information has helped to characterize the pollutants that triggered these advisories. For example, as of 2011, mercury was the chemical contaminant responsible for 81 percent of all advisories issued nationwide and five pollutants (mercury, dioxins/furans, polychlorinated biphenyls [PCBs], chlordane, and dichlorodiphenyltrichloroethane [DDT]) accounted for 94 percent of the advisories issued. Regular annual collection of this information has also permitted the identification of advisory trends within various waterbodies so that trends can be identified and resources allocated to deal with the most pressing problems. Less frequent or irregularly scheduled reporting of advisory information is not sufficient to obtain information for the purposes of this survey because longer periods between reports or unequal periods of reporting would decrease the value of the information obtained, and respondents might have more difficulty in completing the survey if past yearly records were archived. In addition, regular annual collection of this information over several years will permit the evaluation of water quality standards compliance and pollution problems occurring in waterbodies under advisory, so that trends can be identified and resources allocated to deal with the problems of greatest concern.
3(e)	General Guidelines
This survey adheres to OMB's general guidelines for information collection.
3(f) 	Confidentiality
Information sought is maintained for public record by the state public health agency or other state agencies and no sensitive material is involved.
3(g)	Sensitive Questions
No questions concerning sexual behavior or attitudes, religious beliefs, or other matters usually considered private are included in this information collection.
4.	The Respondents and the Information Requested
4(a)	Respondents/SIC Codes
The following categories of respondents will be surveyed:
State (or other entity) health departments
9431	Administration of public health programs (Administration of public health programs, including the following: Categorical health program administration -- government, communicable disease program administration -- government, environmental health programs -- government, and public health agencies -- non-operating).
State (or other entity) EPAs
9511	Air and Water Resource and Solid Waste Management (Administration of Environmental Quality, including the following: Water control and quality agencies -- government and environmental protection agencies -- government).
4(b)	Information Requested
(i)	Data items, including record keeping
(1) Specific information on each advisory or ban within the jurisdiction (records to be maintained by the jurisdiction for the public record at least 2 years following completion of the survey each year that the questionnaire is conducted):
Waterbody name, location, and narrative description of geographic extent of advisory.
Waterbody type (lake, river, estuary, coastal marine waters, Great Lakes waters, multi-class, bayou, canal).
Chemical pollutant(s) detected in fish tissue samples that resulted in issuance of the advisory.
Date advisory was issued.
Species of fish and size ranges sampled for which the advisory was issued.
Type of advisory issued and population that is targeted (no consumption for the general population, no consumption for sensitive subpopulations, such as pregnant or nursing women and children, restricted consumption for the general population, restricted consumption for sensitive subpopulation, or commercial fishing ban).
Tissue data that supports the advisory determination including contaminant, residue concentration, type(s) of sample(s) (e.g., fillet, whole, plug), and locational coordinates for the data/sample locations (e.g., station IDs, site names, locations, counties, latitude/longitude).
 (2) Mapping the location of each fish consumption advisory or ban (latitude/longitude coordinates for the advisory or hard copy of a marked map that shows the location and extent of the advisory or electronic shapefile/coverage of advisory locations).
 (ii)	Respondent Activities
The following activities are required for a respondent to assemble and submit the above-mentioned data items:
Review transmittal email with instructions on what data should be provided.
Gather advisory data to update the NLFA database (including waterbody name and geographic extent, fish species/size class, pollutant, and type of advisory), and fish tissue residue data files.
Gather geographic data by creating shapefiles/GIS coverages, providing latitude/longitude coordinates, and/or by marking locations of current fish advisories on electronic or hard copy maps.
Return marked maps, shapefiles/GIS coverages showing advisory locations, or listing of latitude/longitude coordinates, and fish tissue residue data for new advisories by email or on diskette by mail to EPA.
5. 	The Information Collected - Agency Activities, Collection Methodology, and Information Management

5(a)	Agency Activities
Agency activities associated with the collection of information by this survey consist of the following:
Update current mailing list of all state, territory, and Tribal organizations, and develop survey tracking database to track responses.
Develop the transmittal letter, templates for fish advisory information and fish tissue data, instructions for completing updates to the templates, procedures for providing mapping/locational information, and recommended fish tissue data format.
Modify/populate the existing NLFA database with new fish advisory information.
Record receipt of advisories, marked map(s) or shapefiles/GIS coverages or latitude/longitude files, and fish tissue residue data; submit reminders to nonrespondents via e-mail and telephone calls; review/verify advisory boundary markings on map(s); and review and reformat fish tissue residue data files as appropriate.
Enter appropriate geographic information on location of updated or new advisories into GIS database, and review/verify data entries.
Perform data analysis summaries of national and state advisory information.
Prepare an annual update of the Fish Advisory fact sheet.
Distribute results of the advisory updates in the Fish Advisory fact sheet electronically on the Internet.
Archive the fish advisory locational data (maps, shapefile/GIS coverages, or electronic latitude/longitude files), and fish tissue residue data for at least 2 years.
5(b)	Collection Methodology and Management
To collect and analyze the information associated with this ICR, EPA will primarily use an electronic questionnaire, paper maps, PCs, and applicable database and digitizing software.
All potential state, territorial, or Tribal respondents in the mailing list database will receive email requests to provide new advisory information and fish tissue data. The transmittal emails will explain the purpose of the NLFA data collection effort and provide instructions to permit the respondents to complete the advisory and fish tissue templates. Respondents will submit their fish advisory information and fish tissue data electronically to EPA for incorporation into the NLFA database. However, at a minimum, each respondent is requested to return the marked map or a shapefile/GIS coverage or latitude/longitude coordinates of advisory locations and tissue residue data supporting the issued advisories to EPA by email or on a diskette by mail. Email reminders will be sent to respondents who have not returned their advisory map(s), electronic shapefile/GIS coverage, electronic file of tissue residue data, and updated fish advisory data information within 30 days.
EPA will ensure the accuracy and completeness of collected information by reviewing each submission. Fish advisory information and fish tissue data will be submitted electronically to EPA for incorporation into the NLFA. Fish advisory information and fish tissue data will not be added to the existing database until approved by EPA. Tissue residue data will be reviewed and reformatted into a Microsoft Access file as necessary to make it compatible in structure with other state fish tissue residue data in the NLFA.
Data analyses will be performed through queries and simple compilations of summary statistics (e.g., number of fish advisories reported; number of advisories issued for a specific chemical contaminant (e.g., mercury); or number of rivers, lakes, estuaries, or coastal marine waters under advisory). Maps received from respondents will be checked to determine whether instructions were followed and the maps marked so that the information can be entered into a GIS database. Back-up copies of the data will be made regularly during the survey and maintained in a separate location for at least 2 years.
Summary results of the annual surveys will be posted on EPA's NLFA webpage. Individual state reports will be accessible by the public links available to state advisory programs on the EPA's Fish Advisory website. An annual fish advisory fact sheet summarizing the most current information on fish advisories will also be available on the same website.
5(c)	Small Entity Flexibility
No alternatives have been found to be more cost effective than direct solicitation of the state health departments or other state, territorial, or Tribal entities responsible for issuing fish advisories and that generate this information as a matter of public information for distribution to their residents. No additional gathering of information is required by the state health departments or other entities responsible for each fish advisory because advisories and records are their public health responsibilities. "Small Governmental Jurisdictions" (defined for the purpose of this information collection as a government or territories or Tribes having a population of less than 50,000) may be included in this survey.
The completion of the survey (including the addition of updated advisory information, marking maps, and providing fish tissue residue data is voluntary. Thus, smaller entities that cannot provide the staff and resources to complete the survey are not required to do so. Identification of such smaller entities that do not initially respond will permit the development of options to assist the smaller entities in completing the survey, such as permitting more time for responding, simplifying the response procedures, or providing contractor assistance in completing the survey. The option of completing the fish advisory survey electronically will be encouraged, which should provide an easier and more effective means for transmitting and receiving the information. Based on past experience with state health departments and other state, territorial, and Tribal entities involved in issuing fish advisories have email or Internet access.
5(d)	Collection Schedule
The survey materials will be available to the respondents in early spring to provide information on the previous year's fish advisories, sampling, and analysis programs, and risk assessment, risk management, and risk communication procedures. If the completed survey materials are not been returned within 30 days, then an e-mail reminder will be sent to all nonrespondents. In addition, follow-up telephone calls will be made to the nonrespondents to determine what, if any, assistance they need to complete the questionnaire. If the completed survey materials have not been returned within 60 days, the survey will be considered to be unobtainable. Data will be analyzed, and summary advisory information will be made available to the public by December each year.
6.	Estimating the Burden and the Cost of the Collection
6(a)	Estimating Respondent Burden
EPA reviewed burden estimates generated by an e-mailed inquiry of nine state health departments in 2000 and made the following assumptions in determining respondent burden based on responses obtained from four states. (The annual respondent burden and cost presented in Table 1 reflects the estimated average annual labor hours and costs, calculated to occur during the 3-year OMB-approved period of this ICR).
Labor hours are based on initial assumptions that up to 92 potential respondents will be asked to participate in the survey annually. Thus, the total number of surveys that might be processed during this ICR is 276 (3-year approval period).
Senior-level managers (e.g., director, chief) are most likely to receive the survey materials and review instructions; however, it is anticipated that a lower-level technical staff member would provide the new advisory information and fish tissue residue data electronically to EPA, and mark the fish advisory locations on the maps, provide shapefiles/GIS coverages or latitude/longitude coordinates. Therefore, the average annualized respondent hour burden to review instructions for the NLFA is 0.35 hours, as shown below.
	(0.10 hour - manager/year + 0.25 hour - technician/year) = 0.35 hours
The amount of time needed to gather advisory information to update the NLFA varies considerably, depending on how many new fish advisories have been issued within the jurisdiction during the past year and/or how many revisions there are to previously issued advisories. For example, during the 2011 cycle, 18 states reported no new advisories for the year, while 21 states reported from 1 to 104 new advisories. However, approximately 15 states also made revisions to existing advisory files. Similar differences among the states in the number of new and revised advisories reported have been observed over the past several years. Because the amount of time needed to complete the new advisory information or update existing information will vary depending on the number of advisories within the respondent's jurisdiction, a respondent with one fish advisory might require 0.25 hours while a respondent with 20 advisories might require 5 hours. The number of respondents with "low" and "high" fish advisory reporting burdens is unknown at this time. For the purposes of this ICR, EPA estimates (based on the responses from four states), on the average, that it will require 9.25 hours to complete the new advisory information and revise existing data. Information requested is compiled by each jurisdiction for the public record; hence little, if any, additional time will be needed to gather the information. We estimate that 9.25 hours will be needed each year to gather the advisory information as shown below.
         (1.0 hour - manager/year + 6.25 hour - technician/year + 2.0 hour - clerical/year) = 9.25 hours
The amount of time needed to gather geographic data, develop shapefiles/GIS coverages, determine latitude/longitude coordinates, or manually mark locations of the advisories on a map also varies considerably, depending on how many new fish advisories have been issued within the jurisdiction during the past year. For example, during the 2011 cycle, 18 states reported no new advisories for the year while 21 states reported from 1 to 104 new advisories. Similar differences among the states in the number of new advisories reported have been observed over the past several years. Information requested is compiled by each jurisdiction for the public record; hence little, if any, additional time will be needed to gather the information. We estimate (based on the responses from four states) that 7 hours will be needed each year to gather the geographic data, create a shapefile/GIS coverage, determine latitude/longitude coordinates, or mark advisory locations on a map as shown below.
         (0.5 hour - manager/year + 4.5 hour - technician/year + 2.0 hour - clerical/year) = 7.0 hours.
Respondents submitting their fish advisory information electronically will require less clerical time than in the past for preparing and copying advisory information. We estimate that 2.25 hours will be needed each year to update advisory data as shown below.
         (0.5 hour - manager/year + 1.25 hour - technician/year + 0.5 hour - clerical/year) = 2.25 hours
All respondents will likely have to mail back some types of information to EPA each year even if they report the fish advisory information. Products that may need to be mailed back to EPA include hard copies of new advisory information (if a respondent cannot enter data electronically), hard copies of maps with advisories marked, or electronic shapefiles/GIS coverages, or hard copy listings or electronic listings of latitude/longitude coordinates (all respondents with new advisories), and a diskette containing fish tissue residue data that supports new advisories (all respondents with new advisories. Based on the responses from four states, we estimate 1.63 hours will be needed to complete this activity as shown below:
	(1.38 hour - technician/year + 0.25 hour - clerical/year) = 1.63 hours
6(b)	Estimating Respondent Costs
The following resources and assumptions were made to estimate respondent costs for this information collection:
(i)	Estimating Labor Costs
Labor rates were obtained from the Bureau of Labor Statistics' Employment Cost Trends at http://www.bls.gov/news.release/pdf/ecec.pdf, and the following categories were used:
 Manager (White collar: Executive, administrative,
and managerial)

 $34.92/hour
 Technical (White collar)

 $24.56/hour
 Clerical (Administrative support, including clerical)

 $17.79/hour
	A benefits/overhead multiplication factor of 1.6 was used to obtain the total cost of employment for state (or other entity) respondents.
(ii)	Estimating Capital and Operations and Maintenance Costs
No capital/start-up costs are anticipated for the jurisdictions participating in the survey because they already collect the information requested for the public record. All respondents have Internet access; however, it is not required for participating in the survey.
The only operations and maintenance (O&M) cost required for this information collection by the respondent is the purchase of a state map (estimated to cost $6.00), which will be used to mark the advisories, and a compact disk (estimated to cost $0.60), which will be used to download his or her latitude/longitude coordinate data, shapefiles/GIS coverages or fish tissue residue data. Jurisdictions already maintain the information requested in this collection for the public record. EPA will provide return postage for the map, the tissue residue data diskette, and fish advisory information (as applicable).  Currently, all jurisdictions provide these data via email.
EPA estimates that all respondents would submit the fish advisory survey electronically, but anticipates all states, at a minimum, will be returning the marked up state map showing advisory locations and one diskette containing shapefile/GIS coverage, latitude/longitude coordinates, or tissue residue data.
 (iii)	Capital/Start-up vs. Operating and Maintenance Costs
It is believed that the capital/start-up and O&M costs have been appropriately derived for this information collection.
(iv)	Annualizing Capital Costs
No capital costs are anticipated for this information collection. The electronic version of the NLFA survey is offered as an option, not as a requirement. Completion of the survey is voluntary.

Table 1. Annual Respondent Burden and Cost
Information Collection Activity
                  Hours and Costs Per Respondent
(Years 1-3)
                        Total Hours and Costs
(Year 1)
                        Total Hours and Costs
(Year 2)
                        Total Hours and Costs
(Year 3)

                          Mgr. Hours at $34.92/ hour
                          Tech. Hours at $24.56/ Hour
                        Clerical Hours at $17.79/ Hour
                                  Resp. Hours
                                  Labor Cost
                             Capital Start-Up Cost
                                 O&M Cost
                                 No. of Resp.
                               Total Resp. Hours
                               Total Resp. Cost
                                 No. of Resp.
                               Total Resp. Hours
                               Total Resp. Cost
                                 No. of Resp.
                               Total Resp. Hours
                              Total Respond. Cost
Review instructions for new advisories
                                     0.10
                                     0.25
                                     0.00
                                     0.35
                                    $15.41
                                     $0.00
                                     $0.00
                                      92
                                     32.2
                                   $1,417.83
                                      92
                                     32.2
                                   $1,417.83
                                      92
                                     32.2
                                   $1,417.83
Gather advisory data including fish tissue data
                                     1.00
                                     6.25
                                     2.00
                                     9.25
                                    $358.40
                                     $0.00
                                     $0.60
                                      92
                                      851
                                  $33,028.00
                                      92
                                      851
                                  $33,028.00
                                      92
                                      851
                                  $33,028.00
Gather geographic information and mark maps
                                     0.50
                                     4.50
                                     2.00
                                     7.00
                                    $261.70
                                     $0.00
                                     $6.00
                                      92
                                      644
                                  $24,628.03
                                      92
                                      644
                                  $24,628.03
                                      92
                                      644
                                  $24,638.03
Enter advisory data electronically or via paper copy
                                     0.50
                                     1.25
                                      0.5
                                     2.25
                                    $91.29
                                     $0.00
                                     $0.00
                                      92
                                      207
                                   $8,398.50
                                      92
                                      207
                                   $8,398.50
                                      92
                                      207
                                   $8,398.50

Return maps, residue data, diskette, advisory information and questionnaire by mail
                                     0.00
                                     1.38
                                     0.25
                                     1.63
                                    $61.34
                                     $0.00
                                     $0.00
                                      92
                                    149.96
                                 $5,643.69.58
                                      92
                                    149.96
                                   $5,643.69
                                      92
                                    149.96
                                   $5,643.69
Subtotals
                                     2.10
                                     13.63
                                     4.75
                                     20.48
                                    $788.14
                                     $0.00
                                     $6.60
                                    varies
                                   1,884.16
                                  $73,116.05
                                    varies
                                   1,884.16
                                  $73,116.05
                                    varies
                                   1,884.16
                                  $73,116.05
[1]	Labor cost includes a benefits/overhead multiplication factor of 1.6.

6(c)	Estimating Agency Burden and Cost
Agency burden is estimated based on the assumption that 10 percent of the labor hours per year for each activity will be work done by EPA and 90 percent of the labor hours per year will be work done by a contractor. In addition, management oversight of work performed by technical and clerical staff is estimated to require 20 percent of the labor hours for each activity.
Federal employee rates were obtained from the  2014 OPM General Schedule (GS) Salary Table for the Washington, DC, area for the midpoint of each salary grade (Available at the Web http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2014/DCB_h.pdf), and the following categories were used:
Manager (GS 15)

$67.88/hour
Technical (GS 14)

$57.70/hour
Clerical (GS 7)

$ 23.15/hour
A benefits/overhead multiplication factor of 1.6 was used to obtain the total labor cost for EPA.
No capital/startup costs are anticipated for the Agency.
No O&M costs are anticipated for the Agency. Table 2 includes the estimated costs for each year of the ICR period. The following resources and assumptions were used to prepare the burden estimate for each activity:
Preparation of the mailing list and survey tracking database is estimated based on initial assumptions that up to 92 potential respondents nationwide will be sent the survey each year. Agency labor includes identifying potential respondents and sources for contact information (name, agency, address, phone number, fax number, and e-mail address) and is estimated to take 0.04 hours per respondent. O&M costs include contractor services to revise the mailing list and the survey tracking database, and enter and verify contact information, based on approximately 0.2 hours per respondent, with an estimated rate of $95.00/hour (labor, overhead, and other direct costs). Agency labor and contractor service estimates are based on an estimated 50 edits to the respondent contact names and addresses annually. It is not likely that the number of respondents will change significantly. Because the contact information will likely only need to be entered once, the Agency labor and contractor services are divided by three to provide an annualized estimate for the ICR.
To revise the existing survey package including the transmittal email, survey, instructions, and mapping procedures requires an estimated number of Agency hours of 0.11 hours per respondent. Fixed O&M costs include 40 contractor hours per year to modify survey materials.
The NLFA database for storing and analyzing the fish advisory information is already in place. Agency labor for this activity is estimated at 0.02 hours per respondent. Fixed O&M costs include 80 contractor hours per year to modify this database.
Each year, the Agency will submit the survey materials to respondents. (The materials to be submitted will include a request for information on advisories that have been issued, rescinded or revised during the preceding 12 months, map(s) and fish tissue residue data only need to be submitted for the new advisories issued during the previous year. EPA's oversight of this activity is estimated to be 0.02 hours per respondent. Contractor services required to conduct this activity include 0.16 hours per respondent per year to prepare the materials and answer respondents' questions about the survey.
Survey operations include recording receipt of completed questionnaires and marked map(s), electronic shape files/GIS coverages, and electronic fish tissue residue files; sending e-mail reminders to nonrespondents and making telephone contacts with nonrespondents and respondents in situations where additional information is required for clarification, if needed; e-mailing acknowledgment of materials that are received; and reviewing survey materials for completeness and accuracy of responses. EPA estimates that it will not be involved in these operations except for minor oversight (0.02 hours per respondent per year). Contractor services to perform these operations are based on 1 hour per respondent per year.
EPA expects that the new fish advisory information and fish tissue data will be provided electronically by respondents. Fish tissue residue data from all states will have to be reviewed and reformatted for uploading to the fish tissue database, and all data entries (fish advisory, mapping, and fish tissue residue data) will have to be entered into the database and reviewed and verified. EPA estimates that it will not be involved in these operations except for minor oversight (0.03 hours per respondent per year). Contractor services to enter data for those respondents are expected to be 3 hours per respondent per year. Contractor services to reformat fish tissue data files for all respondents are expected to be 6 hours per respondent per year and contractor services for reviewing/revising all fish advisory information, mapping data, and fish tissue data are estimated to be 2 hours per respondent.
Data analysis of new and updated advisory information will be performed to obtain summary statistics for inclusion in the fish advisory fact sheet. The Agency will provide technical direction to a contractor to perform the analyses and discuss and review the results, estimated at 0.06 hours per respondent per year. Contractor services will require 0.5 hours per respondent per year for analysis.
EPA will prepare a summary report of fish advisory information (Fish Advisory fact sheet). EPA will provide technical direction to a contractor to prepare the fact sheet, including reviewing drafts and the final fact sheet, which is estimated at 0.55 hours per respondent per year. It is anticipated that the contractor will require 1 hours per respondent per year to produce the fact sheet, including a hard copy and an electronic version suitable for posting on the Fish Advisory website.
EPA will distribute the summary results of the NLFA database (Fish Advisory fact sheet) in an electronic version that will be posted on the Fish Advisory website. EPA also will provide technical oversight of the publication process, estimated at 0.05 hours per respondent per year. The Internet version of the NLFA database containing the Fish Advisory fact sheet and the updated fish advisory data will be designed so that the states, territories, Tribes, and the general public can automatically view the fish advisory information pertaining to the waterbody of interest. O&M costs include

Table 2. Agency Burden and Cost
                        Information Collection Activity
                        Hours Burden and Cost (Year 1)
                             Total Hours and Costs

                          Mgr. Hours at $67.88/ Hour
                          Tech Hours at $57.70/ Hour
                        Clerical Hours at $23.15/ Hour
                              Agency Hours/ Resp.
                               Labor Cost/Resp.
                            Capital/ Start-Up Cost
                              Fixed O&M Cost
                            Non_Fixed O&M Cost1
                                Number of Resp.
                      Total O&M (fixed and non-fixed)
                              Total Agency Hours
                               Total Agency Cost
Prepare mailing list and survey tracking database
                                     0.01
                                     0.02
                                     0.01
                                     0.04
                                     $3.30
                                    $0.00
                                    $0.00
                                    $19.00
                                      92
                                  $1,748.00
                                     3.68
                                   $2,051.86
Revise survey materials
                                     0.01
                                      0.1
                                       0
                                     0.11
                                    $10.32
                                    $0.00
                                  $3,800.00
                                    $0.00
                                      92
                                  $3,800.00
                                    10.12
                                   $4,749.26
Set up database for storing and tracking questionnaire responses and electronic options for answering the questionnaire
                                     0.02
                                       0
                                       0
                                     0.02
                                     $2.17
                                    $0.00
                                  $7,600.00
                                    $0.00
                                      92
                                  $7,600.00
                                     1.84
                                   $7,799.84
Submit survey materials to respondents; answer respondents' questions
                                     0.01
                                     0.01
                                       0
                                     0.02
                                     $2.01
                                    $0.00
                                    $0.00
                                    $19.20
                                      92
                                  $1,766.40
                                     1.84
                                   $1,951.25
Record receipt of completed survey materials; perform follow-up and quality control activities
                                     0.01
                                     0.01
                                       0
                                     0.02
                                     $2.01
                                    $0.00
                                    $0.00
                                    $95.00
                                      92
                                  $8,740.00
                                     1.84
                                   $8,924.85
Enter information from survey materials into database, if needed, reformat tissue data and review/verify data entries
                                       0
                                     0.03
                                       0
                                     0.03
                                     $2.77
                                    $0.00
                                    $0.00
                                   $285.00
                                      92
                                  $26,220.00
                                     2.76
                                  $96,394.80

                                   $570.00
                                      92
                                  $52,440.00

                                   $190.00
                                      92
                                  $17,480.00

Perform data analysis
                                     0.01
                                     0.05
                                       0
                                     0.06
                                     $5.70
                                    $0.00
                                    $0.00
                                    $47.50
                                      92
                                  $4,370.00
                                     5.52
                                   $4,894.59
Prepare fact sheet and summary report of information obtained from the survey
                                     0.05
                                      0.5
                                       0
                                     0.55
                                    $51.59
                                    $0.00
                                    $0.00
                                    $95.00
                                      92
                                  $8,740.00
                                    50.60
                                  $13,486.32
Distribute results of the survey
                                       0
                                     0.05
                                       0
                                     0.05
                                     $4.62
                                    $0.00
                                  $5,000.00
                                    $0.00
                                      92
                                  $5,000.00
                                     4.60
                                   $5,424.67
Store the advisory data, questionnaire responses and advisory location data
                                       0
                                     0.03
                                     0.03
                                     0.06
                                     $3.88
                                    $0.00
                                  $1,000.00
                                    $0.00
                                      92
                                  $1,000.00
                                     5.52
                                   $1,357.03
Subtotals
                                     0.12
                                      0.8
                                     0.04
                                     0.96
                                    $88.37
                                    $0.00
                                  $17,400.00
                                  $1,320.70
                                    Varies
                                 $138,904.40
                                    88.32
                                  $147,034.49
 1 	Includes costs of contractor services and postage.

       funds for contractor services to maintain the database and perform troubleshooting, if needed, estimated at $5,000 per year.
Data obtained from the NLFA survey, including mapping and fish tissue residue data will be stored in appropriate media. EPA will provide technical oversight to ensure that data storage meets its requirements and program objectives. Labor is estimated at 0.06 hours per respondent per year. Fixed O&M costs include an estimate for computer equipment maintenance for this program of $1,000 per year.
6(d)	Estimating the Respondent Universe and Total Burden and Costs
The respondent universe for this ICR is calculated based on a total number of 276 surveys to be completed during the 3-year ICR period for an average of up to 92 respondents (representing fish advisory contacts from 50 states, District of Columbia, five U.S. territories and 36 Native American Tribes). The number of respondents involved in each activity varies. It is anticipated that 90 percent of respondents will exercise that option.
6(e)	Bottom Line Burden Hours and Cost Tables
(i)	Respondent Tally
Only one respondent table was prepared for this ICR.
Total Estimated Respondent Burden and Cost Summary
Technical and Financial Requirements
Number of Respondents
Number of Activities
Total Hours
Total Labor Cost
Total Capital Costs
Total O&M Costs
Total Costs
Year 1
92
5
1,884.16
$72,508.85
$0.00
$607.20
$73,116.05
Year 2
92
5
1,884.16
$72,508.85
$0.00
$607.20
$73,116.05
Year 3
92
5
1,884.16
$72,508.85
$0.00
$607.20
$73,116.05
TOTAL
276
15
5,652.48
$217,526.55
$0.00
1,821.60
$219,348.15
AVERAGE
92
5
1,884.16
$$72,508.85
$0.00
$607.20
$73,116.05

(ii)	The Agency Tally
The Agency and contractor tables are summarized in the following table.
Total Estimated Agency Burden and Cost Summary

Technical and Financial Requirements
Number of Respondents
Number of Activities
Total Hours
Total Labor Cost
Total Capital Costs
Total O&M Costs
Total Costs
Year 1
92
10
88.37
$8,130.09
$0.00
$138,904.40
$147,034.49
Year 2
92
10
88.37
$8,130.09
$0.00
$138,904.40
$147,034.49
Year 3
92
10
88.37
$8,130.09
$0.00
$138,904.40
$147,034.49
TOTAL
276
30
265.11
$24,390.27
$0.00
$416,713.20
$441,103.47
AVERAGE
92
10
88.37
$8,130.09
$0.00
$138,904.40
$147,034.49

(iii)	Variations in the Annual Bottom Line
A decrease in the collection activities or burden and costs per respondent is anticipated during the course of this ICR.
6(f)	Reasons for Change in Burden
There is a 42 percent reduction to the respondent burden from the currently approved ICR. The reduction in the burden is due primarily to the elimination of the State Fish Advisory Program Questionnaire.
6(g)	Burden Statement
The annual public reporting and record keeping burden for this collection of information is estimated to average 20.48 hours per respondent. 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 Tribal or 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; train personnel to be able to respond to a collection of information requirement; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. 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. These numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
To comment on EPA's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2014-0350, which is available for public viewing at the Water Docket in the EPA Docket Center (EPA/DC), WJC West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20460. The EPA Docket Center 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 Water Docket and is<PHONE_NUMBER>. An electronic version of the public docket is available online for viewing at  http://www.regulations.gov. Use http://www.regulations.gov to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select "search," then type in the docket ID number identified above. Also, you can send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17[th] Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Please include EPA Docket ID (EPA-HQ-OW-2014-0350) and OMB Control Number (2040-0226) in any correspondence.


[Federal Register Volume 77, Number 101 (Thursday, May 24, 2012)]
[Notices]
[Pages 31055-31057]
[FR Doc No: 2012-12646]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67024; File No. SR-NASDAQ-2012-060]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to
Rule 4751(f)(7) Concerning the Processing of the Price To Comply Order

May 18, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on May 8, 2012, The NASDAQ Stock Market LLC (``NASDAQ'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to clarify how the processing of a Price to
Comply Order under Rule 4751(f)(7) operates based on the method of
entry. The Exchange will implement the change effective May 14, 2012.
    The text of the proposed rule change is below. Proposed new
language is italics; proposed deletions are in brackets.
* * * * *

4751. Definitions

    The following definitions apply to the Rule 4600 and 4750 Series
for the trading of securities listed on Nasdaq or a national securities
exchange other than Nasdaq.
    (a)-(e)
    (f) The term ``Order Type'' shall mean the unique processing
prescribed for designated orders that are eligible for entry into the
System, and shall include:
    (1)-(6) No change.
    (7) ``Price to Comply Order'' are orders that, if, at the time of
entry, a Price to Comply Order would lock or cross the quotation of an
external market, the order will be priced to the current low offer (for
bids) or to the current best bid (for offers) and displayed at a price
one minimum price increment lower than the offer (for bids) or higher
than the bid (for offers). The displayed and undisplayed prices of a
Price to Comply order entered through an OUCH port may be adjusted once
or multiple times depending upon [the method of order entry and]the
election of the member firm and changes to the prevailing NBBO. The
displayed and undisplayed prices of a Price to Comply order entered
through a RASH port may be adjusted multiple times, depending upon
changes to the prevailing NBBO.
    (8)-(14) No change.
    (g)-(i) No change.
* * * * *

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
    NASDAQ is proposing to clarify the effect that the methods of order
entry have on the processing of a Price to Comply Order, as described
in Rule

4751(f)(7).\3\ A Price to Comply Order allows a member firm to quote
aggressively and still comply with the locked and crossed markets
provisions of Regulation NMS.\4\ Prior to June 2008, if at the time of
entry a Price to Comply Order would create a violation of SEC Rule
610(d) by locking or crossing the protected quote of an external market
or would cause a violation of SEC Rule 611 by trading through such a
protected quote, the order was converted by the NASDAQ system to a Non-
Displayed Order, as defined in Rule 4751(e)(3),\5\ and re-priced to the
current low offer (for bids) or to the current best bid (for offers).
Thereafter, such a Non-Displayed Order would be cancelled by the NASDAQ
system if the market moved through the price of the order after the
order was accepted.
---------------------------------------------------------------------------

    \3\ ``Price to Comply Order'' is an order such that, if, at the
time of entry, it would lock or cross the quotation of an external
market, the order will be priced to the current low offer (for bids)
or to the current best bid (for offers) and displayed at a price one
minimum price increment lower than the offer (for bids) or higher
than the bid (for offers).
    \4\ 17 CFR 242.610.
    \5\ ``Non-Displayed Order'' is a limit order that is not
displayed in the NASDAQ system, but nevertheless remains available
for potential execution against all incoming orders until executed
in full or cancelled.
---------------------------------------------------------------------------

    In June 2008, NASDAQ amended Rule 4751(f)(7).\6\ The amendment
changed how the Price to Comply Order operates so that a locking or
crossing order is no longer converted to a Non-Displayed Order, but
rather is displayed at the most aggressive price possible, one minimum
price increment worse than the locking price. NASDAQ also added
language to the rule, which noted that the Exchange may adjust the
displayed and undisplayed prices of a Price to Comply Order once or
multiple times, depending on the method of order entry and changes to
the National Best Bid and Offer (``NBBO''). In the discussion of the
rule change, NASDAQ explained that the displayed and undisplayed price
of an individual order may be modified one or more times depending upon
the manner of order entry into the system. In particular, if a member
chooses to enter a Price to Comply Order via NASDAQ's RASH protocol,
the order is priced upon entry and may be adjusted multiple times in
response to changes in the prevailing NBBO to move the displayed price
closer to the original entered price and display the best possible
price consistent with the provisions of Regulation NMS. In addition,
each time the displayed price is adjusted, the order will receive a new
timestamp for purposes of determining its price/time priority according
to NASDAQ's existing processing rules. If a Price to Comply Order is
entered via NASDAQ's OUCH protocol, however, the order will be repriced
only upon entry and the order is not repriced in the event the
prevailing NBBO changes.
---------------------------------------------------------------------------

    \6\ Securities Exchange Act Release No. 57910 (June 3, 2008), 73
FR 32776 (June 10, 2008) (SR-NASDAQ-2008-049).
---------------------------------------------------------------------------

    NASDAQ is proposing to amend Rule 4751(f)(7) to clarify the effect
that the method of order entry has on the processing of the Price to
Comply Order. As noted above, the method of entry of a Price to Comply
Order determines whether the order is repriced once or multiple times.
This will continue to be the case under the amended rule; however, an
OUCH subscriber will be afforded the choice to have its Price to Comply
Order be subject to repricing either only once or multiple times.
Member firms will designate each OUCH protocol order port to use either
the single or multiple repricing functionality for any Price to Comply
Order entered via that port.\7\ A RASH subscriber will continue to have
the Price to Comply Order repriced multiple times, when appropriate.
The methodology for repricing the Price to Comply Order will not vary
based on how the order is entered. Like a RASH-entered Price to Comply
Order, each time the OUCH-entered order is repriced it will receive a
new timestamp for purposes of determining its price/time priority. As
such, a repriced Price to Comply Order is treated as a new order in
terms of priority and, as such, there is no guarantee that the OUCH-
entered Price to Comply Order will receive priority when it becomes
actionable after repricing.
---------------------------------------------------------------------------

    \7\ In the absence of designation from a member firm, NASDAQ
will default the member's OUCH port(s) to single repricing.
---------------------------------------------------------------------------

    NASDAQ believes that the new functionality and related rule change
will serve to reduce the order traffic received using the OUCH
protocol. NASDAQ notes that, in certain cases, a member will submit a
Price to Comply Order at an aggressive price that it anticipates will
be at the NBBO. Often such an order is not submitted at the NBBO and is
not executed after repricing because the market does not move to the
adjusted order price. In such cases, the member firm will typically
submit additional aggressive orders, which likewise are not executed.
Because the OUCH protocol is used by member firms that are able to
submit a large volume of orders, NASDAQ believes that offering such
firms the ability to have NASDAQ reprice a Price to Comply Order
multiple times will serve to reduce the excessive volume of orders
entered into the System and ultimately canceled.
    As noted, NASDAQ will continue to offer OUCH subscribers an
alternative to the multiple repricing functionality so that such member
firms may elect to have a locked or crossed Price to Comply Order
repriced only once, consistent with the current process. NASDAQ
believes that this will accommodate member firms that seek the
certainty of repricing at most once or whose trading systems depend on
the existing repricing mechanism.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\8\ in general, and with Section
6(b)(5) of the Act \9\ in particular, in that the proposal is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in regulating, clearing, settling,
processing information with respect to, and facilitating transactions
in securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest. NASDAQ believes this
proposal is consistent with the Exchange Act and, specifically, Rules
610 and 611of Regulation NMS in that it is designed to prevent orders
from locking and crossing market or trading through protected quotes,
while also promoting a more efficient market. In this regard, NASDAQ
believes that the proposed rule change will promote the efficient use
of the Exchange by reducing the number of orders entered into the
market and ultimately canceled. The proposed rule change will
accomplish this by providing the member firms that tend to enter the
greatest number of such orders an option to have the Exchange reprice a
single order multiple times. NASDAQ also believes that permitting a
high volume user the option to continue to have the Exchange reprice
its Price to Comply Order only upon order entry, when appropriate, will
ensure member firms with internal systems that act in reliance of this
function will continue to operate without disruption.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f.
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not

necessary or appropriate in furtherance of the purposes of the Act.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(ii) of the Act \10\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\11\
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \11\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    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. The Exchange has
provided the Commission written notice of its intent to file the
proposed rule change, along with a brief description and text of the
proposed rule change, at least five business days prior to the date of
filing of the proposed rule change.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2012-060 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2012-060. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-NASDAQ-2012-060 and should
be submitted on or before June 14, 2012.
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    \12\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-12646 Filed 5-23-12; 8:45 am]
BILLING CODE 8011-01-P