[Federal Register Volume 77, Number 9 (Friday, January 13, 2012)]
[Notices]
[Pages 2057-2058]
[FR Doc No: 2012-510]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2927-006]

 Aquamac Corporation; Notice of Termination of License by Implied
Surrender and Soliciting Comments and Motions To Intervene

    Take notice that the following hydroelectric proceeding has been
initiated by the Commission:
    a. Type of Proceeding: Termination of License by Implied Surrender.
    b. Project No.: 2927-006.
    c. Date Initiated: January 06, 2012.
    d. Licensee: Aquamac Corporation.
    e. Name and Location of Project: The Aquamac Hydroelectric Project
is located on the Merrimack River, a navigable waterway in the United
States, in the city of Lawrence, Essex County, Massachusetts.
    f. Issued Pursuant to: Standard Article 17 of the project's license
and 18 CFR 6.4 (2011).
    g. Licensee Contact Information: Mr. Edmond Roux, 9 South Canal
Street, Lawrence, MA 01843-1410; phone<PHONE_NUMBER>.
    h. FERC Contact: Krista Sakallaris,<PHONE_NUMBER>.
    i. Deadline for filing comments, protests, and motions to intervene
is 30 days from the issuance date of this notice. All documents may be
filed electronically via the Internet in lieu of paper. See 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
at http://www.ferc.gov/docs-filing/efiling.asp. The Commission strongly
encourages electronic filings. If unable to be filed electronically,
documents may be paper-filed. To paper-file, an original and seven
copies should be sent to: The Secretary, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426. Commenters can
submit brief comments up to 6,000 characters, without prior
registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information
at the end of your comments. Please include the project number (P-2927-
006) on any documents or motions filed.
    j. Description of Existing Facilities: (1) A 6.5-foot-high by 6.0-
foot-wide head gate and trashrack structure; (2) a 244-foot-long, 5-
foot-diameter penstock connected to; (3) a generating unit with the
installed capacity of 250 kW; (4) an 80-foot-long tailrace canal; and
(5) other appurtenances.
    k. Description of Proceeding: The licensee is currently in
violation of standard Article 17 of its license, granted on March 1,
2001 and section 6.4 of the Commission's regulations, which state that
it is deemed to be the intent of a licensee to surrender its license,
if it abandons a project for a period of three years. The project has
not operated since June of 2005. During a 2007 inspection, staff was
unable to gain access to the project and confirmed it was non-
operational. On October 6, 2011, Commission staff sent the licensee a
letter concerning the non-operating status of the project. To date the
licensee has failed to respond and the project remains inoperative. By
not operating the project as proposed and authorized, the licensee is
in violation of the terms and conditions of the license.
    l. This notice is available for review and reproduction at the
Commission in the Public Reference Room, Room 2A, 888 First Street NE.,
Washington, DC 20426. The filing may also be viewed on the Commission's
Web site at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the
Docket number (P-2927) in the docket number field to access the

notice. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and
issuances related to this or other pending projects. For assistance,
call toll-free 1-(866) 208-3676 or email<EMAIL_ADDRESS>
For TTY, call<PHONE_NUMBER>.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene--Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210,
385.211, and 385.214. In determining the appropriate action to take,
the Commission will consider all protests filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any protests or motions to
intervene must be received on or before the specified deadline date for
the particular proceeding.
    o. Filing and Service of Responsive Documents--Any filing must: (1)
bear in all capital letters the title ``COMMENTS'', ``PROTEST'', or
``MOTION TO INTERVENE,'' as applicable; (2) set forth in the heading
the project number of the proceeding to which the filing responds; (3)
furnish the name, address, and telephone number of the person
commenting, protesting or intervening; and (4) otherwise comply with
the requirements of 18 CFR 385.2001 through 385.2005. All comments,
protests or motions to intervene must set forth their evidentiary basis
and otherwise comply with the requirements of 18 CFR 4.34(b). All
comments, protests, or motions to intervene should relate to project
works, which are the subject of the termination of license. A copy of
any protest or motion to intervene must be served upon each
representative of the licensee specified in item g above. If an
intervener files comments or documents with the Commission relating to
the merits of an issue that may affect the responsibilities of a
particular resource agency, they must also serve a copy of the document
on that resource agency. A copy of all other filings in reference to
this notice must be accompanied by proof of service on all persons
listed in the service list prepared by the Commission in this
proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
    p. Agency Comments--Federal, state, and local agencies are invited
to file comments on the described proceeding. If any agency does not
file comments within the time specified for filing comments, it will be
presumed to have no comments.

    Dated: January 6, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-510 Filed 1-12-12; 8:45 am]
BILLING CODE 6717-01-P


Summary of Personal Communications with Randy Blackburn, Commercial Fuel
Recycling, LLC. (Idaho) on November 20, 2008.  He provided the following
information:

Any price he mentions should be taken in the context of the current
steep decline in crude oil prices.

His company pays within a range to take used oil from generators
(between approximately $25 to $45 per barrel).

No charges if taken from a consistent source. The price is heavily
dependant on the frequency and quantity of sales from that location.

Will sometimes pay $35 per stop on a multiple location pickup.


[Federal Register Volume 77, Number 111 (Friday, June 8, 2012)]
[Notices]
[Pages 34095-34101]
[FR Doc No: 2012-13860]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30093; 812-13946]

Federated Investment Management Company and Federated ETF Trust;
Notice of Application

June 1, 2012.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from sections
2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the
Act, under sections 6(c) and 17(b) of the Act for an exemption from
sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J)
of the Act for an exemption from sections 12(d)(1)(A) and (B) of the
Act.

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Applicants: Federated Investment Management Company (``Federated'') and
Federated ETF Trust (the ``Trust'').

Summary of Application: Applicants request an order that permits: (a)
Series of certain actively managed open-end management investment
companies to issue shares (``Shares'') redeemable in large aggregations
only (``Creation Units''); (b) secondary market transactions in Shares
to occur at negotiated market prices; (c) certain series to pay
redemption proceeds, under certain circumstances, more than seven days
from the tender of Shares for redemption; (d) certain affiliated
persons of the series to deposit securities into, and receive
securities from, the series in connection with the purchase and
redemption of Creation Units; and (e) certain registered management
investment companies and unit investment trusts outside of the same
group of investment companies as the series to acquire Shares.

Filing Dates: The application was filed on August 26, 2011, and amended
on February 22, 2012, March 21, 2012, May 8, 2012, and May 22, 2012.

Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on June 25, 2012, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street NE., Washington, DC 20549-1090. Applicants: c/o Stacy L. Fuller,
Esq., K&L Gates LLP, 1601 K Street NW., Washington, DC 20006.

FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel, at
(202) 551-6817 or Daniele Marchesani, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

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

Applicants' Representations

    1. The Trust is a statutory trust organized under the laws of
Delaware and will be registered as an open-end management investment
company under the Act. The Trust will initially offer one actively-
managed investment series: Federated Active Ultrashort Fixed Income ETF
(the ``Initial Fund''). The investment objective of the Initial Fund
will be to seek to outperform the 3-month LIBOR by investing in fixed
and floating rate fixed income instruments.
    2. Applicants request that the order apply to the Initial Fund and
any future series of the Trust or of other existing or future open-end
management companies that may utilize active management investment
strategies (``Future Funds''). Any Future Fund will (a) be advised by
Federated or an entity controlling, controlled by, or under common
control with Federated (together with Federated, an ``Advisor''), and
(b) comply with the terms and conditions of the application.\1\ The
Initial Fund and Future Funds together are the ``Funds.'' Each Fund
will consist of a portfolio of securities (including

fixed income securities \2\ and/or equity securities) and/or currencies
and other assets (``Portfolio Instruments'').\3\ Funds may also invest
in ``Depositary Receipts.'' A Fund will not invest in any Depositary
Receipts that the Advisor deems to be illiquid or for which pricing
information is not readily available.\4\ Each Fund will operate as an
actively managed exchange-traded fund (``ETF''). The Future Funds might
include one or more ETFs which invest in other open-end and/or closed-
end investment companies and/or ETFs.
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    \1\ All entities that currently intend to rely on the order are
named as applicants. Any other entity that relies on the order in
the future will comply with the terms and conditions of the
application. An Investing Fund (as defined below) may rely on the
order only to invest in Funds and not in any other registered
investment company.
    \2\ Fixed income securities may include ``to-be-announced
transactions'' (``TBA Transactions''). A TBA Transaction is a method
of trading mortgage-backed securities. In a TBA Transaction, the
buyer and seller agree on general trade parameters such as agency,
settlement date, par amount and price.
    \3\ Neither the Initial Fund nor any Future Fund will invest in
options contracts, futures contracts or swap agreements.
    \4\ Depositary Receipts are typically issued by a financial
institution, a ``depositary'', and evidence ownership in a security
or pool of securities that have been deposited with the depositary.
No affiliated persons of applicants will serve as the depositary
bank for any Depositary Receipts held by a Fund.
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    3. Federated, a Pennsylvania corporation, will be the investment
advisor to the Initial Fund. Each Advisor is or will be registered as
an ``investment adviser'' under the Investment Advisers Act of 1940
(the ``Advisers Act''). The Advisor may retain investment advisers as
sub-advisers in connection with the Funds (each, a ``Subadvisor''). Any
Subadvisor will be registered under the Advisers Act. A registered
broker-dealer under the Securities Exchange Act of 1934 (``Exchange
Act''), which may be an affiliate of the Advisor, will act as the
distributor and principal underwriter of the Funds (``Distributor'').
Applicants request that the order apply also to any future Distributor
of Shares that complies with the terms and conditions of the
application.
    4. Shares of each Fund will be purchased from the Trust only in
Creation Units through the Distributor on a continuous basis at net
asset value (``NAV'') next determined after an order in proper form is
received.\5\ Applicants anticipate that a Creation Unit will consist of
at least 50,000 Shares and that the price of a Share will range from
$20 to $200. All orders to purchase Creation Units must be placed with
the Distributor by or through a party that has entered into a
participant agreement with the Distributor and the transfer agent of
the Trust (``Authorized Participant'') with respect to the creation and
redemption of Creation Units. An Authorized Participant is either: (a)
a broker or dealer registered under the Exchange Act (``Broker'') or
other participant in the Continuous Net Settlement System of the
National Securities Clearing Corporation, a clearing agency registered
with the Commission and affiliated with the Depository Trust Company
(``DTC''), or (b) a participant in the DTC (such participant, ``DTC
Participant'').
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    \5\ A Trust will issue, sell and redeem Creation Units of the
applicable Fund on any day that the Trust is open for business,
including as required by section 22(e) of the Act (each, a
``Business Day'').
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    5. The Initial Fund and certain Future Funds will generally be
purchased entirely for cash as permissible under the procedures
described below and will generally be redeemed in-kind. However, the
Trust reserves the right to accept and deliver Creation Units of the
Initial Fund and any Future Fund by means of an in-kind tender of
specified instruments. Purchasers will be required to purchase Creation
Units by making an in-kind deposit of specified instruments (``Deposit
Instruments''), and shareholders redeeming their Shares will receive an
in-kind transfer of specified instruments (``Redemption
Instruments'').\6\ On any given Business Day the names and quantities
of the instruments that constitute the Deposit Instruments and the
names and quantities of the instruments that constitute the Redemption
Instruments will be identical, and these instruments may be referred
to, in the case of either a purchase or a redemption, as the ``In-Kind
Basket.'' In addition, the In-Kind Basket will correspond pro rata to
the positions in the Fund's portfolio (including cash positions),\7\
except: (a) In the case of bonds, for minor differences when it is
impossible to break up bonds beyond certain minimum sizes needed for
transfer and settlement; (b) for minor differences when rounding is
necessary to eliminate fractional shares or lots that are not tradeable
round lots; \8\ or (c) TBA Transactions, short positions and other
positions that cannot be transferred in kind \9\ will be excluded from
the In-Kind Basket.\10\ If there is a difference between the NAV
attributable to a Creation Unit and the aggregate market value of the
In-Kind Basket exchanged for the Creation Unit, the party conveying
instruments with the lower value will also pay to the other an amount
in cash equal to that difference (the ``Cash Amount'').
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    \6\ The Funds must comply with the federal securities laws in
accepting Deposit Instruments and satisfying redemptions with
Redemption Instruments, including that the Deposit Instruments and
Redemption Instruments are sold in transactions that would be exempt
from registration under the Securities Act. In accepting Deposit
Instruments and satisfying redemptions with Redemption Instruments
that are restricted securities eligible for resale pursuant to rule
144A under the Securities Act, the Funds will comply with the
conditions of Rule 144A.
    \7\ The portfolio used for this purpose will be the same
portfolio used to calculate the Fund's NAV for that Business Day.
    \8\ A tradeable round lot for a security will be the standard
unit of trading in that particular type of security in its primary
market.
    \9\ This includes instruments that can be transferred in kind
only with the consent of the original counterparty to the extent the
Fund does not intend to seek such consents.
    \10\ Because these instruments will be excluded from the In-Kind
Basket, their value will be reflected in the determination of the
Cash Amount (defined below).
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    6. Purchases and redemptions of Creation Units may be made in whole
or in part on a cash basis, rather than in kind, solely under the
following circumstances: (a) To the extent there is a Cash Amount, as
described above; (b) if, on a given Business Day, the Fund announces
before the open of trading that all purchases, all redemptions or all
purchases and redemptions on that day will be made entirely in cash;
(c) if, upon receiving a purchase or redemption order from an
Authorized Participant, the Fund determines to require the purchase or
redemption, as applicable, to be made entirely in cash; (d) if, on a
given Business Day, the Fund requires all Authorized Participants
purchasing or redeeming Shares on that day to deposit or receive (as
applicable) cash in lieu of some or all of the Deposit Instruments or
Redemption Instruments, respectively, solely because: (i) Such
instruments are not eligible for transfer through either the NSCC
Process or DTC Process; or (ii) in the case of Funds holding non-U.S.
investments (``Global Funds''), such instruments are not eligible for
trading due to local trading restrictions, local restrictions on
securities transfers or other similar circumstances; or (e) if the Fund
permits an Authorized Participant to deposit or receive (as applicable)
cash in lieu of some or all of the Deposit Instruments or Redemption
Instruments, respectively, solely because: (i) such instruments are, in
the case of the purchase of a Creation Unit, not available in
sufficient quantity; (ii) such instruments are not eligible for trading
by an Authorized Participant or the investor on whose behalf the
Authorized Participant is acting; or (iii) a holder of Shares of a
Global Fund would be subject to unfavorable income tax treatment if the
holder receives redemption proceeds in kind.\11\
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    \11\ A ``custom order'' is any purchase or redemption of Shares
made in whole or in part on a cash basis in reliance on clause
(e)(i) or (e)(ii).
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    7. Each Business Day, before the open of trading on the national
securities

exchange as defined in section 2(a)(26) of the Act (``Stock Exchange'')
upon which its Shares are listed and traded, the Fund will cause to be
published through the NSCC the names and quantities of the instruments
comprising the In-Kind Basket, as well as the estimated Cash Amount (if
any), for that day. The published In-Kind Basket will apply until a new
In-Kind Basket is announced on the following Business Day, and there
will be no intra-day changes to the In-Kind Basket except to correct
errors in the published In-Kind Basket. The Stock Exchange will
disseminate every 15 seconds throughout the trading day an amount
representing, on a per Share basis, the sum of the current value of the
Portfolio Instruments that were publicly disclosed prior to the
commencement of trading in Shares on the Stock Exchange.
    8. An investor purchasing a Creation Unit from a Fund may be
charged a fee (``Transaction Fee'') to protect existing shareholders of
the Funds from the dilutive costs associated with the purchase and
redemption of Creation Units.\12\ All orders to purchase Creation Units
will be placed with the Distributor and the Distributor will transmit
all purchase orders to the relevant Fund. The Distributor will be
responsible for delivering a prospectus (``Prospectus'') to those
persons purchasing Creation Units and for maintaining records of both
the orders placed with it and the confirmations of acceptance furnished
by it.
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    \12\ Where a Fund permits an in-kind purchaser to substitute
cash in lieu of depositing one or more Deposit Instruments, the
purchaser may be assessed a higher Transaction Fee to offset the
cost to the Fund of buying those particular Deposit Instruments.
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    9. Shares will be listed and traded at negotiated prices on the
Stock Exchange and traded in the secondary market. Applicants expect
that Stock Exchange specialists (``Specialists'') or market makers
(``Market Makers'') will be assigned to Shares. The price of Shares
trading on the Stock Exchange will be based on a current bid/offer
market. Transactions involving the purchases and sales of Shares on the
Stock Exchange will be subject to customary brokerage commissions and
charges.
    10. Applicants expect that purchasers of Creation Units will
include arbitrageurs. Specialists or Market Makers, acting in their
unique role to provide a fair and orderly secondary market for Shares,
also may purchase Creation Units for use in their own market making
activities.\13\ Applicants expect that secondary market purchasers of
Shares will include both institutional and retail investors.\14\
Applicants expect that arbitrage opportunities created by the ability
to continually purchase or redeem Creation Units at their NAV should
ensure that the Shares will not trade at a material discount or premium
in relation to NAV per individual Share.
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    \13\ If Shares are listed on NASDAQ, no Specialist will be
contractually obligated to make a market in Shares. Rather, under
NASDAQ's listing requirements, two or more Market Makers will be
registered in Shares and required to make a continuous, two-sided
market or face regulatory sanctions.
    \14\ Shares will be registered in book-entry form only. DTC or
its nominee will be the record or registered owner of all
outstanding Shares. Beneficial ownership of Shares will be shown on
the records of DTC or DTC Participants.
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    11. Neither the Trust nor any Fund will be marketed or otherwise
held out as a ``mutual fund.'' Instead, each Fund will be marketed as
an ``actively-managed exchange-traded fund.'' Any advertising material
where features of obtaining, buying or selling Creation Units are
described or where there is reference to redeemability will prominently
disclose that Shares are not individually redeemable and that owners of
Shares may acquire Shares from a Fund and tender those Shares for
redemption to a Fund in Creation Units only.
    12. The Funds' Web site, which will be publicly available prior to
the public offering of Shares, will include the Prospectus for each
Fund and additional quantitative information updated on a daily basis,
including, on a per Share basis for each Fund, the prior Business Day's
NAV and the market closing price or mid-point of the bid/ask spread at
the time of the calculation of such NAV (``Bid/Ask Price''), and a
calculation of the premium or discount of the market closing price or
Bid/Ask Price against such NAV. On each Business Day, before
commencement of trading in Shares on the Stock Exchange, the Fund will
disclose on its Web site the identities and quantities of the Portfolio
Instruments and other assets held by the Fund that will form the basis
for the Fund's calculation of NAV at the end of the Business Day.\15\
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    \15\ Applicants note that under accounting procedures followed
by the Funds, trades made on the prior Business Day will be booked
and reflected in NAV on the current Business Day. Accordingly, the
Funds will be able to disclose at the beginning of the Business Day
the portfolio that will form the basis for the NAV calculation at
the end of the Business Day.
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Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an
exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act
and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act
for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and
under section 12(d)(1)(J) of the Act for an exemption from sections
12(d)(1)(A) and (B) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt
any person, security or transaction, or any class of persons,
securities or transactions, from any provisions of the Act, if and to
the extent that such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Section 17(b) of the Act authorizes the Commission to exempt a proposed
transaction from section 17(a) of the Act if evidence establishes that
the terms of the transaction, including the consideration to be paid or
received, are reasonable and fair and do not involve overreaching on
the part of any person concerned, and the proposed transaction is
consistent with the policies of the registered investment company and
the general provisions of the Act. Section 12(d)(1)(J) of the Act
provides that the Commission may exempt any person, security, or
transaction, or any class or classes of persons, securities or
transactions, from any provision of section 12(d)(1) if the exemption
is consistent with the public interest and the protection of investors.

Sections 5(a)(1) and 2(a)(32) of the Act

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a
management investment company that is offering for sale or has
outstanding any redeemable security of which it is the issuer. Section
2(a)(32) of the Act defines a redeemable security as any security,
other than short-term paper, under the terms of which the holder, upon
its presentation to the issuer, is entitled to receive approximately a
proportionate share of the issuer's current net assets, or the cash
equivalent. Because Shares will not be individually redeemable,
applicants request an order that would permit the Trust to register as
an open-end management investment company and redeem Shares in Creation
Units only. Applicants state that investors may purchase Shares in
Creation Units from each Fund and redeem Creation Units from each Fund.
Applicants further state that because the market price of Creation
Units will be disciplined by arbitrage opportunities, investors should
be able to sell Shares in the secondary market at prices that do not
vary materially from their NAV.

Section 22(d) of the Act and Rule 22c-1 Under the Act

    4. Section 22(d) of the Act, among other things, prohibits a dealer
from selling a redeemable security that is currently being offered to
the public by or through a principal underwriter, except at a current
public offering price described in the prospectus. Rule 22c-1 under the
Act generally requires that a dealer selling, redeeming, or
repurchasing a redeemable security do so only at a price based on its
NAV. Applicants state that secondary market trading in Shares will take
place at negotiated prices, not at a current offering price described
in the Prospectus, and not at a price based on NAV. Thus, purchases and
sales of Shares in the secondary market will not comply with section
22(d) of the Act and rule 22c-1 under the Act. Applicants request an
exemption under section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by
section 22(d) of the Act and rule 22c-1 under the Act with respect to
pricing are equally satisfied by the proposed method of pricing Shares.
Applicants maintain that while there is little legislative history
regarding section 22(d), its provisions, as well as those of rule 22c-
1, appear to have been designed to (a) prevent dilution caused by
certain riskless-trading schemes by principal underwriters and contract
dealers, (b) prevent unjust discrimination or preferential treatment
among buyers resulting from sales at different prices, and (c) assure
an orderly distribution system of investment company shares by
eliminating price competition from Brokers offering shares at less than
the published sales price and repurchasing shares at more than the
published redemption price.
    6. Applicants believe that none of these purposes will be thwarted
by permitting Shares to trade in the secondary market at negotiated
prices. Applicants state that (a) secondary market trading in Shares
does not involve the Funds as parties and cannot result in dilution of
an investment in Shares, and (b) to the extent different prices exist
during a given trading day, or from day to day, such variances occur as
a result of third-party market forces, such as supply and demand.
Therefore, applicants assert that secondary market transactions in
Shares will not lead to discrimination or preferential treatment among
purchasers. Finally, applicants contend that the proposed distribution
system will be orderly because arbitrage activity should ensure that
the difference between the market price of Shares and their NAV remains
low.

Section 22(e) of the Act

    7. Section 22(e) of the Act generally prohibits a registered
investment company from suspending the right of redemption or
postponing the date of payment of redemption proceeds for more than
seven days after the tender of a security for redemption. Applicants
observe that settlement of redemptions of Creation Units of Global
Funds is contingent not only on the settlement cycle of the U.S.
securities markets but also on the delivery cycles present in foreign
markets in which those Funds invest. Applicants have been advised that,
under certain circumstances, the delivery cycles for transferring
Portfolio Instruments to redeeming investors, coupled with local market
holiday schedules, will require a delivery process of up to 14 calendar
days. With respect to Future Funds that are Global Funds, applicants
seek the same relief from section 22(e) only to the extent that
circumstances exist similar to those described in the application.
Except as disclosed in the SAI for a Fund, deliveries of redemption
proceeds for Global Funds are expected to be made within seven
days.\16\
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    \16\ Rule 15c6-1 under the Exchange Act requires that most
securities transactions be settled within three business days of the
trade date. Applicants acknowledge that no relief obtained from the
requirements of section 22(e) will affect any obligations that they
have under rule 15c6-1.
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    8. Applicants submit that Congress adopted section 22(e) to prevent
unreasonable, undisclosed or unforeseen delays in the actual payment of
redemption proceeds. Applicants state that allowing redemption payments
for Creation Units of a Fund to be made within a maximum of 14 calendar
days would not be inconsistent with the spirit and intent of section
22(e). Applicants state the SAI will disclose those local holidays
(over the period of at least one year following the date of the SAI),
if any, that are expected to prevent the delivery of redemption
proceeds in seven calendar days and the maximum number of days needed
to deliver the proceeds for each affected Global Fund.
    9. Applicants request relief from section 22(e) in order to provide
payment or satisfaction of redemptions within the maximum number of
calendar days required for such payment or satisfaction in the
principal local markets where transactions in the Portfolio Instruments
of each Global Fund customarily clear and settle, but in all cases no
later than 14 calendar days following the tender of a Creation Unit.
Applicants are not seeking relief from section 22(e) with respect to
Global Funds that do not effect creations or redemptions in-kind.

Section 12(d)(1) of the Act

    10. Section 12(d)(1)(A) of the Act prohibits a registered
investment company from acquiring shares of an investment company if
the securities represent more than 3% of the total outstanding voting
stock of the acquired company, more than 5% of the total assets of the
acquiring company, or, together with the securities of any other
investment companies, more than 10% of the total assets of the
acquiring company. Section 12(d)(1)(B) of the Act prohibits a
registered open-end investment company, its principal underwriter, or
any other broker or dealer from selling its shares to another
investment company if the sale will cause the acquiring company to own
more than 3% of the acquired company's voting stock, or if the sale
will cause more than 10% of the acquired company's voting stock to be
owned by investment companies generally.
    11. Applicants request relief to permit Investing Funds (as defined
below) to acquire Shares in excess of the limits in section 12(d)(l)(A)
of the Act and to permit the Funds, their principal underwriters and
any Brokers to sell Shares to Investing Funds in excess of the limits
in section 12(d)(l)(B) of the Act. Applicants request that these
exemptions apply to: (a) any Fund that is currently or subsequently
part of the same ``group of investment companies'' as the Initial Fund
within the meaning of section 12(d)(1)(G)(ii) of the Act as well as any
principal underwriter for the Funds and any Brokers selling Shares of a
Fund to an Investing Fund; and (b) each management investment company
or unit investment trust registered under the Act that is not part of
the same ``group of investment companies'' as the Funds and that enters
into a FOF Participation Agreement (as defined below) with a Fund (such
management investment companies are referred to herein as ``Investing
Management Companies,'' such unit investment trusts are referred to
herein as ``Investing Trusts,'' and Investing Management Companies and
Investing Trusts together are referred to herein as ``Investing
Funds'').\17\ Investing Funds do not include the Funds. Each Investing
Trust will have a

sponsor (``Sponsor'') and each Investing Management Company will have
an investment adviser within the meaning of section 2(a)(20)(A) of the
Act (``Investing Fund Advisor'') that does not control, is not
controlled by or under common control with the Advisor. Each Investing
Management Company may also have one or more investment advisers within
the meaning of section 2(a)(20)(B) of the Act (each, an ``Investing
Fund Sub-Advisor''). Each Investing Fund Advisor and any Investing Fund
Sub-Advisor will be registered as an investment adviser under the
Advisers Act.
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    \17\ Applicants anticipate that there may be Investing Funds
that are not part of the same group of investment companies as the
Funds but may be subadvised by an Advisor.
---------------------------------------------------------------------------

    12. Applicants submit that the proposed conditions to the requested
relief are designed to address the concerns underlying the limits in
section 12(d)(1), which include concerns about undue influence,
excessive layering of fees and overly complex structures.
    13. Applicants propose a condition to prohibit an Investing Fund or
Investing Fund Affiliate \18\ from causing an investment by an
Investing Fund in a Fund to influence the terms of services or
transactions between an Investing Fund or an Investing Fund Affiliate
and the Fund or Fund Affiliate. Applicants propose a condition to limit
the ability of the Investing Fund Advisor, or Sponsor, any person
controlling, controlled by or under common control with such Advisor or
Sponsor, and any investment company or issuer that would be an
investment company but for sections 3(c)(l) or 3(c)(7) of the Act that
is advised or sponsored by the Investing Fund Advisor, the Sponsor, or
any person controlling, controlled by, or under common control with
such Advisor or Sponsor (``Investing Fund's Advisory Group'') from
(individually or in the aggregate) controlling a Fund within the
meaning of section 2(a)(9) of the Act. The same prohibition would apply
to any Investing Fund Sub-Advisor, any person controlling, controlled
by, or under common control with the Investing Fund Sub-Advisor, and
any investment company or issuer that would be an investment company
but for sections 3(c)(l) or 3(c)(7) of the Act (or portion of such
investment company or issuer) advised or sponsored by the Investing
Fund Sub-Advisor or any person controlling, controlled by or under
common control with the Investing Fund Sub-Advisor (``Investing Fund's
Sub-Advisory Group'').
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    \18\ An ``Investing Fund Affiliate'' is defined as the Investing
Fund Advisor, Investing Fund Sub-Advisor, Sponsor, promoter and
principal underwriter of an Investing Fund, and any person
controlling, controlled by or under common control with any of these
entities. A ``Fund Affiliate'' is defined as an investment adviser,
promoter or principal underwriter of a Fund and any person
controlling, controlled by or under common control with any of these
entities.
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    14. Applicants propose other conditions to limit the potential for
an Investing Fund and certain affiliates of an Investing Fund
(including Underwriting Affiliates) to exercise undue influence over a
Fund and certain of its affiliates, including that no Investing Fund or
Investing Fund Affiliate (except to the extent it is acting in its
capacity as an investment adviser to a Fund) will cause a Fund to
purchase a security in an offering of securities during the existence
of an underwriting or selling syndicate of which a principal
underwriter is an Underwriting Affiliate (``Affiliated Underwriting'').
An ``Underwriting Affiliate'' is a principal underwriter in any
underwriting or selling syndicate that is an officer, director, member
of an advisory board, Investing Fund Advisor, Investing Fund Sub-
Advisor, employee or Sponsor of the Investing Fund, or a person of
which any such officer, director, member of an advisory board,
Investing Fund Advisor or Investing Fund Sub-Advisor, employee or
Sponsor is an affiliated person. An Underwriting Affiliate does not
include any person whose relationship to the Fund is covered by section
10(f) of the Act.
    15. Applicants propose several conditions to address the concerns
regarding layering of fees and expenses. Applicants note that the board
of directors or trustees of any Investing Management Company, including
a majority of the directors or trustees who are not ``interested
persons'' within the meaning of section 2(a)(19) of the Act
(``disinterested directors or trustees''), will be required to find
that the advisory fees charged under the contract are based on services
provided that will be in addition to, rather than duplicative of,
services provided under the advisory contract of any Fund in which the
Investing Management Company may invest. In addition, an Investing Fund
Advisor, trustee of an Investing Trust (``Trustee'') or Sponsor, as
applicable, will waive fees otherwise payable to it by the Investing
Fund in an amount at least equal to any compensation (including fees
received pursuant to any plan adopted by a Fund under rule 12b-1 under
the Act) received from a Fund by the Investing Fund Advisor, Trustee or
Sponsor or an affiliated person of the Investing Fund Advisor, Trustee
or Sponsor, other than any advisory fees paid to the Investing Fund
Advisor, Trustee or Sponsor or its affiliated person by a Fund, in
connection with the investment by the Investing Fund in the Fund.
Applicants also propose a condition to prevent any sales charges or
service fees on shares of an Investing Fund from exceeding the limits
applicable to a fund of funds set forth in NASD Conduct Rule 2830.\19\
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    \19\ Any references to NASD Conduct Rule 2830 include any
successor or replacement rule to NASD Conduct Rule that may be
adopted by FINRA.
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    16. Applicants submit that the proposed arrangement will not create
an overly complex fund structure. Applicants note that a Fund will be
prohibited from acquiring securities of any investment company or
company relying on sections 3(c)(1) or 3(c)(7) of the Act in excess of
the limits contained in section 12(d)(1)(A) of the Act, except to the
extent permitted by exemptive relief from the Commission permitting the
Fund to purchase shares of other investment companies for short-term
cash management purposes.
    17. To ensure that the Investing Funds understand and comply with
the terms and conditions of the requested order, any Investing Fund
that intends to invest in a Fund in reliance on the requested order
will be required to enter into a participation agreement (``FOF
Participation Agreement'') with the Fund. The FOF Participation
Agreement will include an acknowledgment from the Investing Fund that
it may rely on the order only to invest in the Funds and not in any
other investment company.

Sections 17(a)(1) and (2) of the Act

    18. Section 17(a) of the Act generally prohibits an affiliated
person of a registered investment company, or an affiliated person of
such a person (``second tier affiliate''), from selling any security to
or purchasing any security from the company. Section 2(a)(3) of the Act
defines ``affiliated person'' to include any person directly or
indirectly owning, controlling, or holding with power to vote, 5% or
more of the outstanding voting securities of the other person and any
person directly or indirectly controlling, controlled by, or under
common control with, the other person. Section 2(a)(9) of the Act
defines ``control'' as the power to exercise a controlling influence
over the management or policies of a company and provides that a
control relationship will be presumed where one person owns more than
25% of another person's voting securities. Each Fund may be deemed to
be controlled by an Advisor and hence affiliated persons of each other.
In addition, the Funds may be deemed to be under common control with
any other registered investment

company (or series thereof) advised by an Advisor (an ``Affiliated
Fund'').
    19. Applicants request an exemption under sections 6(c) and 17(b)
of the Act from sections 17(a)(1) and 17(a)(2) of the Act to permit in-
kind purchases and redemptions of Creation Units by persons that are
affiliated persons or second tier affiliates of the Funds solely by
virtue of one or more of the following: (a) Holding 5% or more, or in
excess of 25% of the outstanding Shares of one or more Funds; (b)
having an affiliation with a person with an ownership interest
described in (a); or (c) holding 5% or more, or more than 25% of the
Shares of one or more Affiliated Funds.\20\ Applicants also request an
exemption in order to permit a Fund to sell its Shares to and redeem
its Shares from, and engage in the in-kind transactions that would
accompany such sales and redemptions with, certain Investing Funds of
which the Funds are affiliated persons or a second-tier affiliate.\21\
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    \20\ Applicants are not seeking relief from section 17(a) for,
and the requested relief will not apply to, transactions where a
Fund could be deemed an affiliated person, or an affiliated person
of an affiliated person, of an Investing Fund because an investment
adviser to the Funds is also an investment adviser to an Investing
Fund.
    \21\ Applicants expect most Investing Funds will purchase Shares
in the secondary market and will not purchase Creation Units
directly from a Fund. To the extent that purchases and sales of
Shares occur in the secondary market and not through principal
transactions directly between an Investing Fund and a Fund, relief
from section 17(a) would not be necessary. However, the requested
relief would apply to direct sales of Shares in Creation Units by a
Fund to an Investing Fund and redemptions of those Shares. The
requested relief is also intended to cover any in-kind transactions
that may accompany such sales and redemptions.
---------------------------------------------------------------------------

    20. Applicants assert that no useful purpose would be served by
prohibiting such affiliated persons from making in-kind purchases or
in-kind redemptions of Shares of a Fund in Creation Units. Absent the
unusual circumstances discussed in the application, the Deposit
Instruments and Redemption Instruments available for a Fund will be the
same for all purchases and redeemers, respectively, and will correspond
pro rata to the Fund's portfolio instruments. Deposit Instruments and
Redemption Instruments will be valued in the same manner as those
Portfolio Instruments currently held by the relevant Funds. Therefore,
applicants state that the in-kind purchases and redemptions create no
opportunity for affiliated persons or the Applicants to effect a
transaction detrimental to other holders of Shares of that Fund.
Applicants do not believe that in-kind purchases and redemptions will
result in abusive self-dealing or overreaching of the Fund.
    21. Applicants also submit that the sale of Shares to and
redemption of Shares from an Investing Fund meets the standards for
relief under sections 17(b) and 6(c) of the Act. Applicants note that
any consideration paid for the purchase or redemption of Shares
directly from a Fund will be based on the NAV of the Fund in accordance
with policies and procedures set forth in the Fund's registration
statement.\22\ Applicants also state that the proposed transactions are
consistent with the general purposes of the Act and appropriate in the
public interest.
---------------------------------------------------------------------------

    \22\ Applicants acknowledge that the receipt of compensation by
(a) an affiliated person of an Investing Fund, or an affiliated
person of such person, for the purchase by the Investing Fund of
Shares of the Fund or (b) an affiliated person of a Fund, or an
affiliated person of such person, for the sale by the Fund of its
Shares to an Investing Fund, may be prohibited by section 17(e)(1)
of the Act. The FOF Participation Agreement also will include this
acknowledgment.
---------------------------------------------------------------------------

Applicants' Conditions

    Applicants agree that any order of the Commission granting the
requested relief will be subject to the following conditions:

A. Actively-Managed Exchange-Traded Fund Relief

    1. As long as a Fund operates in reliance on the requested order,
the Shares of the Fund will be listed on a Stock Exchange.
    2. Neither the Trust nor any Fund will be advertised or marketed as
an open-end investment company or a mutual fund. Any advertising
material that describes the purchase or sale of Creation Units or
refers to redeemability will prominently disclose that the Shares are
not individually redeemable and that owners of the Shares may acquire
those Shares from the Fund and tender those Shares for redemption to
the Fund in Creation Units only.
    3. The Web site for the Funds, which is and will be publicly
accessible at no charge, will contain, on a per Share basis, for each
Fund the prior Business Day's NAV and the market closing price or Bid/
Ask Price, and a calculation of the premium or discount of the market
closing price or Bid/Ask Price against such NAV.
    4. On each Business Day, before commencement of trading in Shares
on the Stock Exchange, the Fund will disclose on its Web site the
identities and quantities of the Portfolio Instruments and other held
by the Fund that will form the basis for the Fund's calculation of NAV
at the end of the Business Day.
    5. The Advisor or any Subadvisor, directly or indirectly, will not
cause any Authorized Participant (or any investor on whose behalf an
Authorized Participant may transact with the Fund) to acquire any
Deposit Instrument for the Fund through a transaction in which the Fund
could not engage directly.
    6. The requested relief to permit ETF operations will expire on the
effective date of any Commission rule under the Act that provides
relief permitting the operation of actively-managed exchange-traded
funds.

B. Section 12(d)(1) Relief

    1. The members of the Investing Fund's Advisory Group will not
control (individually or in the aggregate) a Fund within the meaning of
section 2(a)(9) of the Act. The members of the Investing Fund's Sub-
Advisory Group will not control (individually or in the aggregate) a
Fund within the meaning of section 2(a)(9) of the Act. If, as a result
of a decrease in the outstanding voting securities of a Fund, the
Investing Fund's Advisory Group or the Investing Fund's Sub-Advisory
Group, each in the aggregate, becomes a holder of more than 25 percent
of the outstanding voting securities of a Fund, it will vote its Shares
of the Fund in the same proportion as the vote of all other holders of
the Fund's Shares. This condition does not apply to the Investing
Fund's Sub-Advisory Group with respect to a Fund for which the
Investing Fund Sub-Advisor or a person controlling, controlled by or
under common control with the Investing Fund Sub-Advisor acts as the
investment adviser within the meaning of section 2(a)(20)(A) of the
Act.
    2. No Investing Fund or Investing Fund Affiliate will cause any
existing or potential investment by the Investing Fund in a Fund to
influence the terms of any services or transactions between the
Investing Fund or an Investing Fund Affiliate and the Fund or a Fund
Affiliate.
    3. The board of directors or trustees of an Investing Management
Company, including a majority of the disinterested directors or
trustees, will adopt procedures reasonably designed to ensure that the
Investing Fund Advisor and any Investing Fund Sub-Advisor are
conducting the investment program of the Investing Management Company
without taking into account any consideration received by the Investing
Management Company or an Investing Fund Affiliate from a Fund or a Fund
Affiliate in connection with any services or transactions.
    4. Once an investment by an Investing Fund in Shares of a Fund
exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board of a
Fund, including a

majority of the disinterested Board members, will determine that any
consideration paid by the Fund to the Investing Fund or an Investing
Fund Affiliate in connection with any services or transactions: (i) Is
fair and reasonable in relation to the nature and quality of the
services and benefits received by the Fund; (ii) is within the range of
consideration that the Fund would be required to pay to another
unaffiliated entity in connection with the same services or
transactions; and (iii) does not involve overreaching on the part of
any person concerned. This condition does not apply with respect to any
services or transactions between a Fund and its investment adviser(s),
or any person controlling, controlled by or under common control with
such investment adviser(s).
    5. The Investing Fund Advisor, or Trustee or Sponsor, as
applicable, will waive fees otherwise payable to it by the Investing
Fund in an amount at least equal to any compensation (including fees
received pursuant to any plan adopted by a Fund under rule 12b-1 under
the Act) received from a Fund by the Investing Fund Advisor, or Trustee
or Sponsor, or an affiliated person of the Investing Fund Advisor, or
Trustee or Sponsor, other than any advisory fees paid to the Investing
Fund Advisor, or Trustee, or Sponsor, or its affiliated person by the
Fund, in connection with the investment by the Investing Fund in the
Fund. Any Investing Fund Sub-Advisor will waive fees otherwise payable
to the Investing Fund Sub-Advisor, directly or indirectly, by the
Investing Management Company in an amount at least equal to any
compensation received from a Fund by the Investing Fund Sub-Advisor, or
an affiliated person of the Investing Fund Sub-Advisor, other than any
advisory fees paid to the Investing Fund Sub-Advisor or its affiliated
person by the Fund, in connection with the investment by the Investing
Management Company in the Fund made at the direction of the Investing
Fund Sub-Advisor. In the event that the Investing Fund Sub-Advisor
waives fees, the benefit of the waiver will be passed through to the
Investing Management Company.
    6. No Investing Fund or Investing Fund Affiliate (except to the
extent it is acting in its capacity as an investment adviser to a Fund)
will cause a Fund to purchase a security in an Affiliated Underwriting.
    7. The Board of the Fund, including a majority of the disinterested
Board members, will adopt procedures reasonably designed to monitor any
purchases of securities by the Fund in an Affiliated Underwriting, once
an investment by an Investing Fund in the securities of the Fund
exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any
purchases made directly from an Underwriting Affiliate. The Board will
review these purchases periodically, but no less frequently than
annually, to determine whether the purchases were influenced by the
investment by the Investing Fund in the Fund. The Board will consider,
among other things: (i) Whether the purchases were consistent with the
investment objectives and policies of the Fund; (ii) how the
performance of securities purchased in an Affiliated Underwriting
compares to the performance of comparable securities purchased during a
comparable period of time in underwritings other than Affiliated
Underwritings or to a benchmark such as a comparable market index; and
(iii) whether the amount of securities purchased by the Fund in
Affiliated Underwritings and the amount purchased directly from an
Underwriting Affiliate have changed significantly from prior years. The
Board will take any appropriate actions based on its review, including,
if appropriate, the institution of procedures designed to ensure that
purchases of securities in Affiliated Underwritings are in the best
interest of shareholders.
    8. Each Fund will maintain and preserve permanently in an easily
accessible place a written copy of the procedures described in the
preceding condition, and any modifications to such procedures, and will
maintain and preserve for a period of not less than six years from the
end of the fiscal year in which any purchase in an Affiliated
Underwriting occurred, the first two years in an easily accessible
place, a written record of each purchase of securities in Affiliated
Underwritings once an investment by an Investing Fund in the securities
of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act,
setting forth from whom the securities were acquired, the identity of
the underwriting syndicate's members, the terms of the purchase, and
the information or materials upon which the Board's determinations were
made.
    9. Before investing in a Fund in excess of the limits in section
12(d)(1)(A), an Investing Fund will execute a FOF Participation
Agreement with the Fund stating that their respective boards of
directors or trustees and their investment advisers, or Trustee and
Sponsor, as applicable, understand the terms and conditions of the
order, and agree to fulfill their responsibilities under the order. At
the time of its investment in shares of a Fund in excess of the limit
in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of
the investment. At such time, the Investing Fund will also transmit to
the Fund a list of the names of each Investing Fund Affiliate and
Underwriting Affiliate. The Investing Fund will notify the Fund of any
changes to the list as soon as reasonably practicable after a change
occurs. The Fund and the Investing Fund will maintain and preserve a
copy of the order, the FOF Participation Agreement, and the list with
any updated information for the duration of the investment and for a
period of not less than six years thereafter, the first two years in an
easily accessible place.
    10. Before approving any advisory contract under section 15 of the
Act, the board of directors or trustees of each Investing Management
Company, including a majority of the disinterested directors or
trustees, will find that the advisory fees charged under such contract
are based on services provided that will be in addition to, rather than
duplicative of, the services provided under the advisory contract(s) of
any Fund in which the Investing Management Company may invest. These
findings and their basis will be recorded fully in the minute books of
the appropriate Investing Management Company.
    11. Any sales charges and/or service fees charged with respect to
shares of an Investing Fund will not exceed the limits applicable to a
fund of funds as set forth in NASD Conduct Rule 2830.
    12. No Fund relying on this section 12(d)(1) relief will acquire
securities of any investment company or company relying on section
3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in
section 12(d)(1)(A) of the Act, except to the extent permitted by
exemptive relief from the Commission permitting the Fund to purchase
shares of other investment companies for short-term cash management
purposes.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-13860 Filed 6-7-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Notices]
[Pages 80924-80925]
[FR Doc No: 2011-32988]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2790-055]

Boott Hydropower, Inc.; Notice of Availability of Final
Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969
and

the Federal Energy Regulatory Commission's (Commission or FERC)
regulations, 18 CFR part 380, Commission staff has reviewed the
application for amendment of license for the Lowell Hydroelectric
Project (FERC No. 2790-055) and has prepared an environmental
assessment (EA). The project is located on the Merrimack River in
Middlesex County, Massachusetts.
    The EA contains the Commission staff's analysis of the potential
environmental effects of the proposed replacement of the wooden
flashboards with a pneumatic crest gate system of the same height and
interim modifications to the existing flashboard system and concludes
that authorizing the amendment, with appropriate environmental
protective measures, would not constitute a major federal action that
would significantly affect the quality of the human environment.
    A copy of the EA is available for review at the Commission in the
Public Reference Room, or it may be viewed on the Commission's Web site
at http://www.ferc.gov using the e-Library link. Enter the docket
number (P-2790) in the docket number field to access the document. For
assistance, contact FERC Online Support at<EMAIL_ADDRESS>or call toll-free at 1-(866) 208-3676 or<PHONE_NUMBER> (for TTY).

    Dated: December 19, 2011.
 Kimberly D. Bose,
Secretary.
[FR Doc. 2011-32988 Filed 12-23-11; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: April 20, 2007 (Volume 72, Number 76)]
[Notices]
[Page 19916]
[DOCID:fr20ap07-49]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PR07-12-000]

Enterprise Texas Pipeline L.P.; Notice of Petition for Rate
Approval

April 13, 2007.
    Take notice that on April 9, 2007, Enterprise Texas Pipeline L.P.
(Enterprise Texas) filed a petition for rate approval for NGPA section
311 transportation rates equal to 44.62 cents per MMBtu, pursuant to
section 284.123(b)(2)(i) of the Commission's regulations, with a
proposed effective date of May 1, 2007. Enterprise Texas also submitted
changes to its Operating Statement.
    Any person desiring to participate in this rate proceeding must
file a motion to intervene or to protest this filing must file in
accordance with Rules 211 and 214 of the Commission's Rules of Practice
and Procedure (18 CFR 385.211 and 385.214). Protests will be considered
by the Commission in determining the appropriate action to be taken,
but will not serve to make protestants parties to the proceeding. Any
person wishing to become a party must file a notice of intervention or
motion to intervene, as appropriate. Such notices, motions, or protests
must be filed on or before the date as indicated below. Anyone filing
an intervention or protest must serve a copy of that document on the
Applicant. Anyone filing an intervention or protest on or before the
intervention or protest date need not serve motions to intervene or
protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time April 20, 2007.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-7568 Filed 4-19-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Rules and Regulations]
[Pages 26680-26684]
[FR Doc No: 2022-09195]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R06-OAR-2021-0517; FRL-8798-02-R6]

Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants; Texas; Control of Emissions From
Existing Other Solid Waste Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving the CAA section
111(d)/129 state plan submitted by the State of Texas for sources
subject to the Other Solid Waste Incineration Units (OSWI) Emission
Guidelines (EG). The Texas OSWI plan was submitted to fulfill State
obligations under CAA section 111(d)/129 to implement and enforce the
requirements under the OSWI EG. The EPA is approving the state plan in
part and amending the agency regulations in accordance with the
requirements of the CAA.

DATES: This rule is effective on June 6, 2022. The incorporation by
reference of certain material listed in the rule is approved by the
Director of the Federal Register June 6, 2022.

ADDRESSES: The EPA has established a docket for this action under
Docket No. EPA-R06-OAR-2021-0517. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Karolina Ruan Lei, EPA Region 6
Office, Air and Radiation Division--State Planning and Implementation
Branch, 1201 Elm Street, Suite 500, Dallas, TX 75270,<PHONE_NUMBER>,
[email protected]. Out of an abundance of caution for members
of the public and our staff, the EPA Region 6 office may be closed to
the public to reduce the risk of transmitting COVID-19. Please call or
email the contact listed above if you need alternative

access to material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our August
19, 2021, proposal (86 FR 46639) and accompanying Technical Support
Document (TSD). In that action, we proposed to partially approve the
Texas OSWI plan submitted by the Texas Commission on Environmental
Quality (TCEQ) and amend 40 CFR part 62 in accordance with the
requirements under sections 111(d) and 129 of the CAA. We proposed to
find that the Texas OSWI plan, with the exception of 30 TAC section
113.2313(3), is at least as protective as the Federal requirements
provided under the OSWI EG, codified at 40 CFR part 60, subpart FFFF.
We received one comment from the TCEQ in support of EPA's proposed
partial approval of the Texas CAA section 111(d) OSWI state plan. No
adverse comment was received on the August 19, 2021, proposal.

II. Final Action

    In this final action, the EPA is amending 40 CFR part 62, subpart
SS, to reflect approval of the Texas OSWI Plan from TCEQ, received on
May 18, 2009, with the exception of 30 TAC section 113.2313(3), in
accordance with sections 111(d) and 129 of the CAA.

III. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' \1\ EPA is providing
additional analysis of environmental justice associated with this
action. We are doing so for the purpose of providing information to the
public, not as a basis of our final action.
---------------------------------------------------------------------------

    \1\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
---------------------------------------------------------------------------

    EPA conducted screening analyses using EJSCREEN, an environmental
justice mapping and screening tool that provides EPA with a nationally
consistent dataset and approach for combining various environmental and
demographic indicators.\2\ The EJSCREEN tool presents these indicators
at a Census block group (CBG) level or a larger user-specified
``buffer'' area that covers multiple CBGs.\3\ An individual CBG is a
cluster of contiguous blocks within the same census tract and generally
contains between 600 and 3,000 people. EJSCREEN is not a tool for
performing in-depth risk analysis, but is instead a screening tool that
provides an initial representation of indicators related to
environmental justice and is subject to uncertainty in some underlying
data (e.g., some environmental indicators are based on monitoring data
which are not uniformly available; others are based on self-reported
data).\4\ To help mitigate this uncertainty, we have summarized
EJSCREEN data within larger ``buffer'' areas covering multiple block
groups and representing the average resident within the buffer areas
surrounding the incinerators. We present EJSCREEN environmental
indicators to help screen for locations where residents may experience
a higher overall pollution burden than would be expected for a block
group with the same total population. These indicators of overall
pollution burden include estimates of ambient particulate matter
(PM2.5) and ozone concentration, a score for traffic
proximity and volume, percentage of pre-1960 housing units (lead paint
indicator), and scores for proximity to Superfund sites, risk
management plan (RMP) sites, and hazardous waste facilities.\5\
EJSCREEN also provides information on demographic indicators, including
percent low-income, communities of color, linguistic isolation, and
less than high school education. The EPA prepared EJSCREEN reports
covering buffer areas of approximately 3-mile radii (or 6-mile radii
for low-density populations/heavily industrialized areas) around the
existing OSWI in Texas.\6\ Table 1 presents a summary of results from
the EPA's screening-level analysis for the areas surrounding each OSWI
compared to the U.S. as a whole (the detailed EJSCREEN reports are
provided in the docket for this rulemaking).
---------------------------------------------------------------------------

    \2\ The EJSCREEN tool is available at https://www.epa.gov/ejscreen.
    \3\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
    \4\ In addition, EJSCREEN relies on the five-year block group
estimates from the U.S. Census American Community Survey. The
advantage of using five-year over single-year estimates is increased
statistical reliability of the data (i.e., lower sampling error),
particularly for small geographic areas and population groups. For
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
    \5\ For additional information on environmental indicators and
proximity scores in EJSCREEN, see ``EJSCREEN Environmental Justice
Mapping and Screening Tool: EJSCREEN Technical Documentation,''
Chapter 3 and Appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.
    \6\ The existing OSWI are located in Harris, Bowie, Dallas, El
Paso, Jefferson, and Andrews Counties in Texas.

                                                                     Table 1--Existing Texas OSWI EJSCREEN Analysis Summary
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Values for Buffer Areas (radius) for each OSWI and the U.S. (percentile within U.S. where indicated)
                                 ---------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Veolia ES
            Variables              Baylor College of  Clean Harbors Deer    Red River Army       University of       U.S. Army Air         Technical         Waste Control
                                   Medicine (Harris,  Park LP (Harris, 6    Depot (Bowie, 3   Texas Southwestern   Defense Artillery     Solutions LLC     Specialists Inc.          U.S.
                                       3 miles)             miles)              miles)         (Dallas, 3 miles)  (El Paso, 3 miles)     Jefferson, 6     (Andrews, 6 miles)
                                                                                miles)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Pollution Burden Indicators:
    Particulate matter (PM2.5),   10.5 [micro]g/m\3\  9.99 [micro]g/m\3\  9.56 [micro]g/m\3\  9.85 [micro]g/m\3\  7.7 [micro]g/m\3\   9.95 [micro]g/m\3\  7.4 [micro]g/m\3\   8.74 [micro]g/m\3\
     annual average.               (89th %ile).        (83rd %ile).        (76th %ile).        (81st %ile).        (25th %ile).        (83rd %ile).        (19th %ile).        (--).
    Ozone, summer seasonal        34.6 ppb (10th      35.2 ppb (12th      41 ppb (38th %ile)  44.6 ppb (71st      54.1 ppb (90th      34.3 ppb (9th       54.8 ppb (91st      42.6 ppb (--).
     average of daily 8-hour max.  %ile).              %ile).                                  %ile).              %ile).              %ile).              %ile).

    Traffic proximity and volume  2,200 (92nd %ile).  480 (67th %ile)...  210 (49th %ile)...  1,800 (90th %ile).  1,500 (88th %ile).  77 (29th %ile)....  0.079 (0th %ile)..  710 (--).
     score *.
    Lead paint (percentage pre-   0.25% (59th %ile).  0.19% (52nd %ile).  0.16% (48th %ile).  0.21% (54th %ile).  0.57% (81st %ile).  0.28% (61st %ile).  0.41% (72nd %ile).  0.28% (--).
     1960 housing).
    Superfund proximity score *.  0.27 (90th %ile)..  0.19 (85th %ile)..  0.18 (83rd %ile)..  0.21 (86th %ile)..  0.015 (12th %ile).  0.065 (51st %ile).  0.015 (11th %ile).  0.13 (--).
    RMP proximity score *.......  1.2 (81st %ile)...  6.7 (99th %ile)...  0.5 (59th %ile)...  1.7 (87th %ile)...  1.4 (83rd %ile)...  1.1 (77th %ile)...  0.56 (62nd %ile)..  0.75 (--).
    Hazardous waste proximity     5 (88th %ile).....  5.4 (89th %ile)...  1.1 (58th %ile)...  2.6 (76th %ile)...  0.49 (43rd %ile)..  0.31 (37th %ile)..  0.1 (17th %ile)...  2.2 (--).
     score *.
Demographic Indicators:
    People of color population..  52% (67th %ile)...  65% (75th %ile)...  20% (36th %ile)...  47% (63rd %ile)...  85% (86th %ile)...  39% (57th %ile)...  53% (67th %ile)...  40% (--).
    Low-income population.......  26% (46th %ile)...  36% (63rd %ile)...  40% (68th %ile)...  29% (51st %ile)...  57% (87th %ile)...  33% (59th %ile)...  30% (53rd %ile)...  31% (--).
    Linguistically isolated       4% (67th %ile)....  9% (82nd %ile)....  1% (50th %ile)....  5% (70th %ile)....  25% (95th %ile)...  1% (52nd %ile)....  4% (68th %ile)....  5% (--).
     population.
    Population with less than     5% (29th %ile)....  23% (84th %ile)...  13% (64th %ile)...  13% (65th %ile)...  29% (90th %ile)...  14% (68th %ile)...  25% (86th %ile)...  12% (--).
     high school education.
    Population under 5 years of   5% (46th %ile)....  8% (70th %ile)....  5% (43rd %ile)....  4% (35th %ile)....  7% (67th %ile)....  9% (78th %ile)....  5% (43rd %ile)....  6%.
     age.
    Population over 64 years of   11% (35th %ile)...  11% (31st %ile)...  19% (70th %ile)...  11% (31st %ile)...  15% (53rd %ile)...  17% (63rd %ile)...  13% (45th %ile)...  16% (--).
     age.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* The traffic proximity and volume indicator is a score calculated by daily traffic count divided by distance in meters to the road. The Superfund proximity, RMP proximity, and hazardous waste
  proximity indicators are all scores calculated by site or facility counts divided by distance in kilometers.

    This final rule approves Texas's OSWI Plan, received on May 18,
2009, with the exception of 30 TAC section 113.2313(3), in accordance
with sections 111(d) and 129 of the CAA. The Texas OSWI Plan
incorporates Federal requirements for OSWI, as specified in the OSWI EG
at 40 CFR part 60, subpart FFFF. These requirements incorporated by
Texas resulted in significant emissions reductions for OSWI, as
described in the Federal Registers for the OSWI rules (69 FR 71472; 70
FR 74870). These requirements result in emission reductions for nine
specified pollutants: particulate matter (PM), sulfur dioxide
(SO2), hydrogen chloride (HCl), nitrogen oxides
(NOX), carbon monoxide (CO), lead (Pb), cadmium (Cd),
mercury (Hg), and dioxins/furans, and they additionally provide for
opacity limits. Some of these pollutants have also been linked to
serious health problems. Short- and/or long-term exposure to air
pollution has been associated with a wide range of human health effects
including increased respiratory symptoms, hospitalization for heart or
lung diseases, and even premature death. Hazardous (or toxic) air
pollutants may cause cancer or other serious health effects, such as
reproductive effects or birth defects.7 8 Therefore, we
believe that these requirements for existing OSWI and resulting
emissions reductions have contributed to reduced environmental and
health impacts on all populations impacted by emissions from these
sources in Texas, including people of color and low-income populations.
This final rule is not anticipated to have disproportionately high or
adverse human health or environmental effects on communities with
environmental justice concerns because it is not anticipated to result
in or contribute to emissions increases in Texas. EPA approval of the
Texas OSWI Plan makes the Plan and the corresponding OSWI EG
requirements incorporated into the Plan federally enforceable by EPA as
of the effective date of this final rulemaking.
---------------------------------------------------------------------------

    \7\ See https://www.epa.gov/air-quality-management-process/managing-air-quality-human-health-environmental-and-economic#what.
    \8\ See https://www.epa.gov/sites/default/files/2016-01/documents/oswi_factsheet11_30_05.pdf.
---------------------------------------------------------------------------

IV. Incorporation by Reference

    In accordance with the requirements of 1 CFR 51.5, we are
finalizing regulatory text that includes the incorporation by reference
of 30 TAC sections 113.2300 through 113.2357, excluding section
113.2313(3), adopted April 28, 2009, which is part of the CAA section
111(d)/129 Plan applicable to existing incinerators subject to the OSWI
Emission Guidelines, at 40 CFR part 60, subpart FFFF, within TCEQ's
jurisdiction in the State of Texas. The regulatory provisions of 30 TAC
sections 113.2300-113.2313(2) and sections 113.2314-113.2357
incorporate the OSWI Emissions Guidelines promulgated by the EPA at 40
CFR part 60, subpart FFFF, and establish emission standards and
compliance times for the control of other solid waste incinerators
certain air curtain incinerators, as defined in subpart FFFF that
commenced construction, modification, or reconstruction on or before
December 9, 2004. The EPA has made and will continue to make 30 TAC
sections 113.2300-113.2313(2) and sections 113.2314-113.2357 generally
available electronically through www.regulations.gov, Docket No. EPA-
R06-OAR-2021-0517 and in hard copy at the EPA Region 6 office (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information). This incorporation by
reference has been approved by the Office of thE Federal Register and
the Plan is federally enforceable under the CAA as of the effective
date of this final rulemaking.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a CAA
section 111(d)/129 submission that complies with the provisions of the
Act and

applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40
CFR part 60, subparts B and FFFF; and 40 CFR part 62, subpart A. Thus,
in reviewing CAA section 111(d)/129 state plan submissions, EPA's role
is to approve state choices, provided that they meet the criteria of
the Act and implementing regulations. Accordingly, this action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law.
    For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the CAA section 111(d) Plans are not approved to apply
in Indian country, as defined at 18 U.S.C. 1151, located in the state.
As such, this rule does not have tribal implications, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), and it will not
impose substantial direct costs on tribal governments or preempt tribal
law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 5, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements, Waste treatment
and disposal.

    Dated: April 25, 2022.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 62 as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. Amend Sec.  62.10850 by adding paragraphs (b)(5) and (c)(5) to read
as follows:

Sec.  62.10850   Identification of Plan.

* * * * *
    (b) * * *
    (5) Control of air emissions from incinerators subject to the Other
Solid Waste Incineration units Emission Guidelines, as adopted by the
Texas Commission on Environmental Quality (TCEQ) and submitted by the
Governor in a letter dated May 18, 2009.
    (c) * * *
    (5) Other solid waste incinerators and certain air curtain
incinerators as defined in the Other Solid Waste Incineration units
Emission Guidelines at 40 CFR part 60, subpart FFFF.

0
3. Add an undesignated center heading and Sec.  62.10900 to read as
follows:

Emissions From Existing Other Solid Waste Incineration Units

Sec.  62.10900   Identification of plan.

    (a) Identification of sources. The plan submitted by the Texas
Commission on Environmental Quality (TCEQ) on May 18, 2009, applies to
existing incinerators subject to the Other Solid Waste Incineration
units (OSWI) Emission Guidelines, at 40 CFR part 60, subpart FFFF,
within TCEQ's jurisdiction in the State of Texas.
    (b) Effective date. The effective date of the plan is June 6, 2022.
    (c) Incorporation by reference. (1) The material incorporated by
reference in this section was approved by the Director of the Federal
Register Office in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies of the material may be inspected or obtained from the EPA Region
6 office, 1201 Elm Street, Suite 500, Dallas, Texas 75270, 214-665-
2200. Copies may be inspected at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email [email protected] or go to:
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (2) State of Texas, Office of the Secretary of State, Texas
Register, P.O. Box 12887, Austin, Texas 78711,<PHONE_NUMBER>,
[email protected], https://www.sos.texas.gov/tac/index.shtml.
    (i) 30 TAC sections 113.2300-113.2313(2) and sections 113.2314
through 113.2357, excluding section 113.2313(3). Texas Administrative
Code Title 30, Chapter 113: Standards of Performance for Hazardous Air
Pollutants and for Designated Facilities and Pollutants, Subchapter D:
Designated Facilities and Pollutants, Divison 5: Emission Guidelines
and Compliance Times for Other Solid Waste Incineration Units That

Commenced Construction On or Before December 9, 2004, adopted April 28,
2009.
    (ii) [Reserved]

[FR Doc. 2022-09195 Filed 5-4-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 103 (Friday, May 27, 2011)]
[Notices]
[Pages 30947-30948]
[FR Doc No: 2011-13198]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0629]

Stephen Lee Seldon: Debarment Order

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is issuing an order
under the Federal Food, Drug, and Cosmetic Act (the FD&C Act)
permanently debarring Stephen Lee Seldon, M.D. from providing services
in any capacity to a person that has an approved or pending drug
product application. We base this order on a finding that Dr. Seldon
was convicted of felonies under Federal law for conduct relating to the
regulation of a drug product under the FD&C Act. Dr. Seldon was given
notice of the proposed permanent debarment and an opportunity to
request a hearing within the timeframe prescribed by regulation. Dr.
Seldon failed to respond. Dr. Seldon's failure to respond constitutes a
waiver of his right to a hearing concerning this action.

DATES: This order is effective May 27, 2011.

ADDRESSES: Submit applications for special termination of debarment to
the Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm.1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Kenny Shade, Office of Regulatory
Affairs (HFC-230), Food and Drug Administration, 5600 Fishers Lane,
Rockville, MD 20857,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B))
requires debarment of an individual if FDA finds that the individual
has been convicted of a felony under Federal law for conduct relating
to the regulation of any drug product under the FD&C Act.
    On March 27, 2009, the U.S. District Court for the District of
Nevada entered judgment against Dr. Seldon for mail fraud in violation
of 18 U.S.C. 1341, aiding and abetting, in violation of 18 U.S.C. 2,
and misbranded a drug while held for sale in violation of 21 U.S.C.
331(k) and 333(a)(2).
    FDA's finding that debarment is appropriate is based on the felony
convictions referenced herein for conduct relating to the regulation of
a drug product. The factual basis for those convictions is as follows:
Dr. Seldon was a physician licensed by the State of Nevada to practice
medicine. He owned and operated a practice called A New You Medical
Aesthetics (A New You) in Las Vegas, Nevada. From on or about October
15, 2003, until on or about September 16, 2005, in the State and
Federal District of Nevada, and elsewhere Dr. Seldon and his wife,
aided and abetted by each other, devised a scheme and artifice to
fraudulently obtain money from patients by substituting cheaper, non-
FDA approved product marketed by Toxin Research International, Inc.
(TRI-toxin) in treatments provided to patients at A New You, while
falsely and fraudulently representing to the patients that they were
receiving injections of the more expensive, FDA-approved BOTOX product
manufactured by Allergan, Inc.
    As part of the scheme, Dr. Seldon ordered and caused to be ordered
38 vials of TRI-toxin between October 2003 and September 2004 while at
the same time his practice stopped purchasing the approved BOTOX.
    As part of his scheme, Dr. Seldon spoke at a seminar in Scottsdale,
Arizona, in September 2004, sponsored by Toxin Research International,
Inc. and claimed that he used it on patients in his practice,
notwithstanding a warning on each vial that TRI-toxin was for research
purposes only and not for human use.
    Dr. Seldon defrauded his patients by misleading them to believe
that they were receiving the FDA-approved drug BOTOX, when in fact, the
patients were receiving TRI-toxin, which was not FDA-approved, thereby
exposing the patients to severe health risk. Dr. Seldon also caused
advertisements to be placed in local magazines offering BOTOX
injections, creating the false impression that he was using the FDA-
approved BOTOX. Dr. Seldon additionally caused patients to sign consent
forms that fraudulently represented that he would be injecting approved
BOTOX when he knew he would be injecting the patients with TRI-toxin.
    As a result of his convictions, on February 22, 2011, FDA sent Dr.
Seldon a notice by certified mail proposing to permanently debar him
from providing services in any capacity to a person that has an
approved or pending drug product application. The proposal was based on
a finding, under section 306(a)(2)(B) of the FD&C Act, that Dr. Seldon
was convicted of felonies under Federal law for conduct relating to the
regulation of a drug product under the FD&C Act. The proposal also
offered Dr. Seldon an opportunity to request a hearing, providing him
30 days from the date of receipt of the letter in which to file the
request, and advised him that failure to request a hearing constituted
a waiver of the opportunity for a hearing and of any contentions
concerning this action. The proposal was received on February 25, 2011.
Dr. Seldon failed to respond within the timeframe prescribed by
regulation and has, therefore, waived his opportunity for a hearing and
has waived any contentions concerning his debarment (21 CFR part 12).

II. Findings and Order

    Therefore, the Director, Office of Enforcement, Office of
Regulatory Affairs, under section 306(a)(2)(B) of the FD&C Act, under
authority delegated to the Director (Staff Manual Guide 1410.35), finds
that Stephen Lee Seldon has been convicted of a felony under Federal
law for conduct relating to the regulation of a drug product under the
FD&C Act.
    As a result of the foregoing finding, Dr. Seldon is permanently
debarred from providing services in any capacity to a person with an
approved or pending drug product application under sections 505, 512,
or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section
351 of the Public Health Service Act (42 U.S.C. 262), effective (see
DATES) (see sections 306(c)(1)(B), (c)(2)(A)(ii), and 201(dd) of the
FD&C Act (21 U.S.C. 321(dd))). Any person with an approved or pending
drug product application who knowingly employs or retains as a
consultant or contractor, or otherwise uses the services of Dr. Seldon,
in any capacity during Dr. Seldon's debarment, will be subject to civil
money penalties (section 307(a)(6) of the FD&C Act (21 U.S.C.
335b(a)(6))). If Dr. Seldon provides services in any capacity to a
person with an approved or pending drug product application during his
period of debarment he will be subject to civil money penalties
(section 307(a)(7) of the FD&C Act (21 U.S.C. 335b(a)(7)). In addition,
FDA will not accept or review any abbreviated new drug applications
submitted by or with the assistance of Dr. Seldon during his period of
debarment (section 306(c)(1)(B) of the FD&C Act).
    Any application by Dr. Seldon for special termination of debarment
under section 306(d)(4) of the FD&C Act should be identified with
Docket No. FDA-2010-N-0629 and sent to the Division of Dockets
Management (see ADDRESSES). All such submissions are to be filed in
four copies. The public availability of information in these

submissions is governed by 21 CFR 10.20(j).
    Publicly available submissions may be seen in the Division of
Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: May 16, 2011.
Howard Sklamberg,
Director, Office of Enforcement, Office of Regulatory Affairs.
[FR Doc. 2011-13198 Filed 5-26-11; 8:45 am]
BILLING CODE 4160-01-P