CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and we place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://
www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at http://
www.faa.gov/regulations--policies/; or
    3. Accessing the Government Printing Office's web page at http://
www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the docket number, notice number, or amendment number
of this rulemaking.
    You may access all documents the FAA considered in developing this
proposed rule, including economic analyses and technical reports, from
the Internet through the Federal eRulemaking Portal referenced in
paragraph (1).

List of Subjects in 14 CFR Part 93

    Air traffic control, Airports, Navigation (air).

VII. Draft Regulatory Text

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend Chapter I of Title 14, Code of Federal
Regulations, as follows:

PART 93--SPECIAL AIR TRAFFIC RULES

    1. The authority for part 93 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44719, 46301.

Proposed Amendment--Option 1

    2. Subpart C is added to read as follows:
Subpart C--LaGuardia Airport Traffic Rules
Sec.
93.61 Applicability.
93.62 Definitions.
93.63 Slots for scheduled arrivals and departures.
93.64 Categories of Slots.
93.65 Initial assignment of Slots.
93.66 Assignment of new or returned Slots.
93.67 Reversion and withdrawal of Slots.
93.68 Sublease and transfer of Slots.
93.69 One-for-one trade of Slots.
93.70 Minimum usage requirements.
93.71 Unscheduled Operations.
93.72 Reporting requirements.
93.73 Administrative provisions.

Subpart C--LaGuardia Airport Traffic Rules

Sec.  93.61  Applicability.

    (a) This subpart prescribes the air traffic rules for the arrival
and departure of aircraft used for scheduled and unscheduled service,
other than helicopters, at LaGuardia Airport (LaGuardia).
    (b) This subpart also prescribes procedures for the assignment,
transfer, sublease and withdrawal of Slots issued by the FAA for
scheduled operations at LaGuardia.
    (c) The provisions of this subpart apply to LaGuardia during the
hours of 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday
and from 12 noon through 9:59 p.m., Eastern Time, Sunday. No person
shall operate any scheduled arrival or departure into or out of
LaGuardia during such hours without first obtaining a Slot in
accordance with this subpart. No person shall conduct an Unscheduled
Operation to or from LaGuardia during such hours without first
obtaining a Reservation.
    (d) Carriers that have Common Ownership shall be considered a
single air carrier for purposes of this rule.
    (e) The Slots assigned under this subpart terminate at 10 p.m. on
March 9, 2019.

Sec.  93.62  Definitions.

    For purposes of this subpart, the following definitions apply:
    Airport Reservation Office (ARO) is an operational unit of the
FAA's David J. Hurley Air Traffic Control System Command Center. It is
responsible for the administration of reservations for unscheduled
operations at LaGuardia.
    Base of Operations are those common slots held by a carrier at
LaGuardia on [final rule effective date], that do not exceed 20
operations per day and all slots guaranteed under The Air Transport
Agreement between the Government of the United States of America and
the Government of Canada.
    Carrier is a U.S. or foreign air carrier with authority to conduct
scheduled service under Parts 121, 129, or 135 of this chapter and the
appropriate economic authority for scheduled service under 14 CFR
chapter II and 49 U.S.C. chapter 411.
    Common Ownership with respect to two or more carriers means having
in common at least 50 percent beneficial ownership or control by the
same entity or entities.
    Common Slot (C-slot) is a slot that is allocated by the FAA as a
lease under its cooperative agreement authority for the length of this
rule.
    Enhanced Computer Voice Reservation System (e-CVRS) is the system
used by the FAA to make arrival and/or departure reservations for
unscheduled operations at LaGuardia and other designated airports.
    Limited Slot (L-slot) is a slot, the lease for which expires prior
to the expiration of this rule for subsequent allocation by the FAA as
an unrestricted slot.
    Public Charter is defined in 14 CFR 380.2 as a one-way or roundtrip
charter flight to be performed by one or more direct air carriers that
is arranged and sponsored by a public charter operator.
    Public Charter Operator is defined in 14 CFR 380.2 as a U.S. or
foreign public charter operator.
    Reservation is an authorization received by a carrier or other
operator of an aircraft, excluding helicopters, in accordance with
procedures established by the FAA to operate an unscheduled arrival or
departure on a particular day of the week during a specific 30-minute
period.
    Scheduled Operation is the arrival or departure segment of any
operation regularly conducted by a carrier between LaGuardia and
another point regularly served by that carrier.
    Slot is the operational authority assigned by the FAA to a carrier
to conduct one scheduled arrival or departure operation at LaGuardia on
a particular day of the week during a specific 30-minute period.
    Unrestricted Slot (U-slot) is a slot that is allocated to a carrier
by the FAA via the auction of a lease.
    Unscheduled Operation is an arrival or departure segment of any
operation that is not regularly conducted by a carrier or other
operator of an aircraft, excluding helicopters, between LaGuardia and
another service point. The following types of carrier operations shall
be considered unscheduled operations for the purposes of this rule:
public, on-demand, and other charter flights; hired aircraft service;
extra sections of scheduled flights; ferry flights; and other non-
passenger flights.

Sec.  93.63  Slots for scheduled arrivals and departures.

    (a) During the hours of 6 a.m. through 9:59 p.m., Eastern Time,
Monday through Friday and from 12 noon through 9:59 p.m., Eastern Time,
Sunday, no person shall operate any scheduled arrival or departure into
or out of LaGuardia without first obtaining a Slot in accordance with
this subpart.
    (b) Except as otherwise established by the FAA under paragraph (c)
of this section, the number of Slots shall be limited to no more than
seventy-five (75) per hour. The number of Slots may not exceed 38 in
any 30-minute period, and 75 in any 60-minute period. The number of
arrival and departure slots in any period may be adjusted by the FAA as
necessary based on the actual or potential delays created by such
number or other considerations relating to congestion, airfield
capacity and the air traffic control system.
    (c) Notwithstanding paragraph (b) of this section, the
Administrator may increase the number of Slots based on a review of the
following:
    (1) The number of delays;
    (2) The length of delays;
    (3) On-time arrivals and departures;
    (4) The number of actual operations;
    (5) Runway utilization and capacity plans; and
    (6) Other factors relating to the efficient management of the
National Airspace System.

Sec.  93.64  Categories of Slots.

    (a) Each Slot shall be designated as a Common Slot, Limited Slot or
Unrestricted Slot and shall be assigned to the Carrier under a lease
agreement. A lease for a Common or Limited Slot shall be assigned via a
cooperative agreement. A lease for an Unrestricted Slot shall be
awarded via an auction.
    (b) Common Slots. (1) All Slots within any Carrier's Base of
Operations as determined on [final rule effective date] shall be
designated as Common Slots.
    (2) Ten percent of the Slots at LaGuardia on [final rule effective
date] not otherwise designated as Common Slots under paragraph (b) (1)
of this section shall be designated as Limited Slots or Unrestricted
Slots. All other Slots shall be designated as Common Slots.
    (c) Limited Slots. Those Slots assigned to a Carrier subject to
return to the FAA under Sec.  93.65(c) and (d) shall be designated as
Limited Slots until the date of their reassignment by the FAA as
Unrestricted Slots or their retirement by the FAA. A Carrier may
continue to use a Limited Slot that has reverted to the FAA until the
second Sunday in the following March.
    (1) In hours where there are more than 75 operations, the FAA shall
designate the excess Slots as Limited Slots and will retire them in
accordance with Sec.  93.65(d).
    (2) Each Carrier with a total number of daily operations at
LaGuardia in excess of its Base of Operations, will be notified by
[effective date of the final rule] which of its Slots have been
designated as Limited Slots under paragraph (c)(1) of this section and
how many of its remaining Slots will be designated as Limited Slots
pursuant to paragraphs (c)(3) and (4) of this section.

    (3) A Carrier shall designate 50 percent of its Limited Slots. The
Carrier must notify the FAA of its designation by [date 10 days after
the final rule effective date].
    (4) The FAA will designate the remaining Limited Slots, excluding
those hours in which two or more Slots have been designated as Limited
Slots by the Carriers.
    (5) No later than [date 20 days after the final rule effective
date], the FAA will publish a list of all Limited Slots and the dates
upon which they will expire.
    (d) Unrestricted Slots. Unrestricted Slots are Slots acquired by a
Carrier through a lease with the FAA awarded via an auction.
Unrestricted Slots are not subject to withdrawal by the FAA.

Sec.  93.65  Initial assignment of Slots.

    (a) Except as provided for under paragraphs (b) and (c) of this
section, any Carrier allocated operating rights under the Order,
Operating Limitations at New York LaGuardia Airport, during the week of
January 7-13, 2007, as evidenced by the FAA's records, will be assigned
corresponding Slots in 30-minute periods consistent with the limits
under Sec.  93.63(b). If necessary, the FAA may utilize administrative
measures such as voluntary measures or a lottery to re-time the
assigned Slots within the same hour to meet the 30-minute limits under
Sec.  93.63(b). The FAA Vice President, System Operations Services, is
the final decision-maker for determinations under this section.
    (b) If a Carrier was allocated operating rights under the Order
Limiting Operations at LaGuardia airport during the week of January 7-
13, 2007, but the operating rights were held by another Carrier, then
the corresponding Slots will be assigned to the Carrier that held the
operating rights for that period, as evidenced by the FAA's records.
    (c) On [date 35 days after the effective date] and every year
thereafter through 2012, sixteen (16) percent of the total number of
Limited Slots shall revert to the FAA in accordance with the schedule
published under Sec.  93.64(c)(5) and be auctioned as Unrestricted
Slots by the FAA. Any Slot receiving no responsive bids will be retired
until the next auction. An affected Carrier will be allowed to use the
Limited Slot until the following second Sunday in March.
    (d) Starting March 8, 2009 and on the second Sunday in March every
year thereafter through 2013, the FAA will retire four percent of the
total number of Limited Slots returned to the FAA under Sec.  93.64(c).
Based on the criteria set forth in Sec.  93.63(c), the Administrator
may, at his discretion, auction Slots scheduled for retirement that
year or auction retired Slots as new capacity.

Sec.  93.66  Assignment of new or returned Slots.

    (a) New capacity or capacity returned to the FAA pursuant to the
provisions of Sec.  93.70 will be reassigned by the FAA via an auction
conducted pursuant to Sec.  93.65(c). Slots acquired from the FAA under
the auction proceeding shall be designated as Unrestricted Slots.
    (b) The FAA may decide to accumulate a quantity of Slots prior to
conducting an auction.

Sec.  93.67  Reversion and withdrawal of Slots.

    (a) This section does not apply to Unrestricted Slots.
    (b) A Carrier's Common Slots or Limited Slots revert back to the
FAA 30 days after the Carrier has ceased all operations at LaGuardia
for any reasons other than a strike.
    (c) The FAA may retime, withdraw or temporarily suspend Common
Slots and Limited Slots at any time to fulfill operational needs.
    (d) Common Slots and Limited Slots will be withdrawn in accordance
with the priority list established under Sec.  93.73.
    (e) Except as otherwise provided in paragraph (a) of this section,
the FAA will notify an affected Carrier before withdrawing or
temporarily suspending a Common Slot or Limited Slot and specify the
date by which operations under the Common Slot or Limited Slot must
cease. The FAA will provide at least 45 days notice unless otherwise
required by operational needs.
    (f) Any Common Slot or Limited Slot that is temporarily withdrawn
under this paragraph will be reassigned, if at all, only to the Carrier
from which it was withdrawn, provided the Carrier continues to conduct
Scheduled Operations at LaGuardia.

Sec.  93.68  Sublease and transfer of Slots.

    (a) A Carrier may sublease its Slots to another Carrier in
accordance with this section and subject to the provisions of the
Carrier's lease agreement with the FAA.
    (b) A Carrier must provide notice to the FAA to sublease a Slot.
Such notice must contain: The Slot number and time, effective dates
and, if appropriate, the duration of the lease. The Carrier may also
provide the FAA with a minimum bid price.
    (c) The FAA will post a notice of the offer to sublease the Slot
and relevant details on the FAA Web site at http://www.faa.gov. An
opening date, closing date and time by which bids must be received will
be provided.
    (d) Upon consummation of the transaction, written evidence of each
Carrier's consent to sublease must be provided to the FAA, as well as
all bids received and the terms of the sublease, including but not
limited to:
    (1) The names of all bidders and all parties to the transaction;
    (2) The offered and final length of the sublease;
    (3) The consideration offered by all bidders and provided by the
sublessee.
    (e) The Slot may not be used until the conditions of paragraph (d)
of this section have been met, and the FAA provides notice of its
approval of the sublease.
    (f) A Carrier may transfer a Slot to another Carrier that conducts
operations at LaGuardia solely under the transferring Carrier's
marketing control, including the entire inventory of the flight. Each
party to such transfer must provide written evidence of its consent to
the transfer and the FAA must confirm and approve these transfers in
writing prior to the effective date of the transaction. However, the
FAA will approve transfers under this paragraph up to five business
days after the actual operation to accommodate operational disruptions
that occur on the same day of the scheduled operation. The FAA Vice
President, System Operations Services is the final decision maker for
any determinations under this section.
    (g) A Carrier wishing to sublease a Slot via an FAA auction under
Sec.  93.65(c), rather than pursuant to this section may do so. The
Carrier shall retain the proceeds and the Slot shall retain the same
designation that it had prior to the Carrier placing it up for auction.

Sec.  93.69  One-for-one trade of Slots.

    (a) A Carrier may trade a Slot with another Carrier on a one-for-
one basis.
    (b) Written evidence of each Carrier's consent to the trade must be
provided to the FAA.
    (c) Each recipient of the trade may not use the acquired Slot until
written confirmation has been received from the FAA.
    (d) Carriers participating in a one-for-one trade must certify to
the FAA that no consideration or promise of consideration was provided
by either party to the trade.

Sec.  93.70  Minimum usage requirements.

    (a) This section does not apply to Unrestricted Slots.
    (b) Any Common Slot or Limited Slot that is not used at least 80
percent of the time over a consecutive two-month period will be
withdrawn by the FAA.
    (c) Paragraph (b) of this section does not apply to the first 90-
day period after

assignment of a Common Slot or Limited Slot through a sublease.
    (d) The FAA may waive the requirements of paragraph (b) of this
section in the event of a highly unusual and unpredictable condition
which is beyond the control of the Carrier and which affects Carrier
operations for a period of five or more consecutive days. Examples of
conditions which could justify a waiver under this paragraph are
weather conditions that result in the restricted operation of the
airport for an extended period of time or the grounding of an aircraft
type.
    (e) The FAA will treat as used any Common Slot or Limited Slot held
by a Carrier on Thanksgiving Day, the Friday following Thanksgiving
Day, and the period from December 24 through the first Sunday of
January.

Sec.  93.71  Unscheduled Operations.

    (a) During the hours of 6 a.m. through 9:59 p.m., Monday through
Friday, and 12 p.m. through 9:59 p.m. on Sunday, no person may operate
an aircraft other than a helicopter to or from LaGuardia unless he or
she has received, for that Unscheduled Operation, a Reservation that is
assigned by the Airport Reservation Office (ARO) or in the case of
Public Charters, in accordance with the procedures in paragraph (d) of
this section. Requests for Reservations will be accepted through the e-
CVRS beginning 72 hours prior to the proposed time of arrival to or
departure from LaGuardia. Additional information on procedures for
obtaining a Reservation is available on the Internet at http://
www.fly.faa.gov/ecvrs.
    (b) Three Reservations are available per hour, including those
assigned to Public Charter operations under paragraph (d) of this
section. The ARO will assign Reservations on a 30-minute basis.
    (c) The ARO will receive and process all Reservation requests for
unscheduled arrivals and departures at LaGuardia. Reservations are
assigned on a ``first-come, first-served'' basis determined by the time
the request is received at the ARO. Reservations must be cancelled if
they will not be used as assigned.
    (d) One Reservation per hour will be available for allocation to
Public Charter operations prior to the 72-hour Reservation window in
paragraph (a) of this section.
    (1) The Public Charter Operator may request a reservation up to six
months in advance of the date of flight operation. Reservation requests
should be submitted to Federal Aviation Administration, Slot
Administration Office, AGC-200, 800 Independence Avenue, SW.,
Washington, DC 20591. Submissions may be made via facsimile to (202)
267-7277 or by e-mail to<EMAIL_ADDRESS>    (2) The Public Charter Operator must certify that its prospectus
has been accepted by the Department of Transportation in accordance
with 14 CFR part 380.
    (3) The Public Charter Operator must identify the call sign/flight
number or aircraft registration number of the direct air carrier, the
date and time of the proposed operation(s), the airport served
immediately prior to or after LaGuardia, and aircraft type. Any changes
to an approved Reservation must be approved in advance by the Slot
Administration Office.
    (4) If Reservations under paragraph (d)(1) of this section have
already been allocated, the Public Charter Operator may request a
Reservation under paragraph (a) of this section.
    (e) The filing of a request for a Reservation does not constitute
the filing of an IFR flight plan as required by regulation. The IFR
flight plan may be filed only after the Reservation is obtained, must
include the Reservation number in the ``Remarks'' section, and must be
filed in accordance with FAA regulations and procedures.
    (f) Air Traffic Control will accommodate declared emergencies
without regard to Reservations. Non-emergency flights in direct support
of national security, law enforcement, military aircraft operations, or
public-use aircraft operations may be accommodated above the
Reservation limits with the prior approval of the Vice President,
System Operations Services, Air Traffic Organization. Procedures for
obtaining the appropriate waiver will be available on the Internet at
http://www.fly.faa.gov/ecvrs.
    (g) Notwithstanding the limits in paragraph (b) of this section, if
the Air Traffic Organization determines that air traffic control,
weather and capacity conditions are favorable and significant delay is
unlikely, the FAA may determine that additional Reservations may be
accommodated for a specific time period. Unused Slots may also be made
available temporarily for Unscheduled Operations. Reservations for
additional operations must be obtained through the ARO.
    (h) Reservations may not be bought, sold or leased.

Sec.  93.72  Reporting requirements.

    (a) Within 14 days after the last day of the two-month period
beginning March 8, 2009 and every two months thereafter, each Carrier
holding a Common Slot or Limited Slot must report, in a format
acceptable to the FAA, the following information for each Common Slot
or Limited Slot:
    (1) The Slot number, time, and arrival or departure designation;
    (2) The operating Carrier;
    (3) The date and scheduled time of each of the operations conducted
pursuant to the Slot, including the flight number and origin/
destination;
    (4) The aircraft type identifier.
    (b) The FAA may withdraw the Slot of any Carrier that does not meet
the reporting requirements of paragraph (a) of this section.

Sec.  93.73  Administrative provisions.

    (a) Each Slot shall be assigned a number for administrative
convenience.
    (b) The FAA will assign priority numbers by random lottery for
Common Slots and Limited Slots at LaGuardia. Each Common Slot and
Limited Slot will be assigned a withdrawal priority number, and the 30-
minute time period for the Common Slot or Limited Slot, frequency, and
the arrival or departure designation.
    (c) If the FAA determines that operations need to be reduced for
operational reasons, the lowest assigned priority number Common Slot or
Limited Slot will be the last withdrawn.
    (d) Any Slot available on a temporary basis may be assigned by the
FAA to a Carrier on a non-permanent, first-come, first-served basis
subject to permanent assignment under this subpart. Any remaining Slots
may be made available for Unscheduled Operations on a non-permanent
basis and will be assigned under the same procedures applicable to
other operating Reservations.
    (e) All transactions under this subpart must be in a written or
electronic format approved by the FAA.

Proposed Amendment: Option 2

    3. Subpart C is added to read as follows:
    Subpart C--LaGuardia Airport Traffic Rules
Sec.
93.61 Applicability.
93.62 Definitions.
93.63 Slots for scheduled arrivals and departures.
93.64 Categories of Slots.
93.65 Initial assignment of Slots.
93.66 Assignment of new or returned Slots.
93.67 Reversion and withdrawal of Slots.
93.68 Sublease and transfer of Slots.
93.69 One-for-one trade of Slots.
93.70 Minimum usage requirements.
93.71 Unscheduled Operations.
93.72 Reporting requirements.
93.73 Administrative provisions.

Sec.  93.61  Applicability.

    (a) This subpart prescribes the air traffic rules for the arrival
and departure of aircraft used for scheduled and

unscheduled service, other than helicopters, at LaGuardia Airport
(LaGuardia).
    (b) This subpart also prescribes procedures for the assignment,
transfer, sublease and withdrawal of Slots issued by the FAA for
scheduled operations at LaGuardia.
    (c) The provisions of this subpart apply to LaGuardia during the
hours of 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday
and from 12 noon through 9:59 p.m., Eastern Time, Sunday. No person
shall operate any scheduled arrival or departure into or out of
LaGuardia during such hours without first obtaining a Slot in
accordance with this subpart. No person shall conduct an Unscheduled
Operation to or from LaGuardia during such hours without first
obtaining a Reservation.
    (d) Carriers that have Common Ownership shall be considered a
single air carrier for purposes of this rule.
    (e) The Slots assigned under this subpart terminate at 10 p.m. on
March 9, 2019.

Sec.  93.62  Definitions.

    For purposes of this subpart, the following definitions apply:
    Airport Reservation Office (ARO) is an operational unit of the
FAA's David J. Hurley Air Traffic Control System Command Center. It is
responsible for the administration of reservations for unscheduled
operations at LaGuardia.
    Base of Operations are those common slots held by a carrier on
[final rule effective date], that do not exceed 20 operations per day
and all slots guaranteed under The Air Transport Agreement between the
Government of the United States of America and the Government of
Canada.
    Carrier is a U.S. or foreign air carrier with authority to conduct
scheduled service under Parts 121, 129, or 135 of this chapter and the
appropriate economic authority for scheduled service under 14 CFR
chapter II and 49 U.S.C. chapter 411.
    Common Ownership with respect to two or more carriers means having
in common at least 50 percent beneficial ownership or control by the
same entity or entities.
    Common Slot (C-slot) is a slot that is allocated by the FAA as a
lease under its cooperative agreement authority for the length of this
rule.
    Enhanced Computer Voice Reservation System (e-CVRS) is the system
used by the FAA to make arrival and/or departure reservations for
unscheduled operations at LaGuardia and other designated airports.
    Limited Slot (L-slot) is a slot, the lease for which must be
transferred to another carrier by the holder of the limited slot as an
unrestricted slot prior to the expiration of this rule.
    Public Charter is defined in 14 CFR 380.2 as a one-way or roundtrip
charter flight to be performed by one or more direct air carriers that
is arranged and sponsored by a public charter operator.
    Public Charter Operator is defined in 14 CFR 380.2 as a U.S. or
foreign public charter operator.
    Reservation is an authorization received by a carrier or other
operator of an aircraft, excluding helicopters, in accordance with
procedures established by the FAA to operate an unscheduled arrival or
departure on a particular day of the week during a specific 30-minute
period.
    Scheduled Operation is the arrival or departure segment of any
operation regularly conducted by a carrier between LaGuardia and
another point regularly served by that carrier.
    Slot is the operational authority assigned by the FAA to a carrier
to conduct one scheduled arrival or departure operation at LaGuardia on
a particular day of the week during a specific 30-minute period.
    Unrestricted Slot (U-slot) is a slot that is assigned to another
carrier by the holder of a limited slot pursuant to the mandatory lease
transfer provisions of this subpart.
    Unscheduled Operation is an arrival or departure segment of any
operation that is not regularly conducted by a carrier or other
operator of an aircraft, excluding helicopters, between LaGuardia and
another service point. The following types of carrier operations shall
be considered unscheduled operations for the purposes of this rule:
public, on-demand, and other charter flights; hired aircraft service;
extra sections of scheduled flights; ferry flights; and other non-
passenger flights.

Sec.  93.63  Slots for scheduled arrivals and departures.

    (a) During the hours of 6 a.m. through 9:59 p.m., Eastern Time,
Monday through Friday and from 12 noon through 9:59 p.m., Eastern Time,
Sunday, no person shall operate any scheduled arrival or departure into
or out of LaGuardia during such hours without first obtaining a Slot in
accordance with this subpart.
    (b) Except as otherwise established by the FAA under paragraph (c)
of this section, the number of Slots shall be limited to no more than
seventy-five (75) per hour. The number of Slots may not exceed 38 in
any 30-minute period, and 75 in any 60-minute period. The number of
arrival and departure Slots in any period may be adjusted by the FAA as
necessary based on the actual or potential delays created by such
number or other considerations relating to congestion, airfield
capacity and the air traffic control system.
    (c) Notwithstanding paragraph (b) of this section, the
Administrator may increase the number of Slots based on a review of the
following:
    (1) The number of delays;
    (2) The length of delays;
    (3) On-time arrivals and departures;
    (4) The number of actual operations;
    (5) Runway utilization and capacity plans; and
    (6) Other factors relating to the efficient management of the
National Airspace System.

Sec.  93.64  Categories of Slots.

    (a) Each Slot shall be designated as a Common Slot, Limited Slot or
Unrestricted Slot and shall be assigned to the Carrier under a lease
agreement. A lease for a Common Slot or Limited Slot shall be assigned
via a cooperative agreement. A lease for an Unrestricted Slot shall be
awarded via an auction.
    (b) Common Slots. (1) All Slots within any Carrier's Base of
Operations, as determined on [final rule effective date], shall be
designated as Common Slots.
    (2) Twenty percent of the Slots at LaGuardia on [final rule
effective date] not otherwise designated as Common Slots under
paragraph (b)(1) of this section shall be designated as Limited Slots
or Unrestricted Slots. All other Slots shall be designated as Common
Slots.
    (c) Limited Slots. Those Slots assigned to a Carrier subject to
return to the FAA under Sec.  93.65(c) shall be designated as Limited
Slots until they are transferred to another Carrier under those
provisions. A Carrier may continue to use a Limited Slot until
reassigned to another Carrier as an Unrestricted Slot.
    (1) Each Carrier with a total number of daily operations at
LaGuardia in excess of its Base of Operations, will be notified by
[effective date of the final rule] how many of its slots will be
designated as Limited Slots pursuant to paragraphs (c)(2) and (3) of
this section.
    (2) A Carrier shall designate 50 percent of its Limited Slots. The
Carrier must notify the FAA of its designation by [date 10 days after
the final rule effective date].
    (3) The FAA will designate the remaining Limited Slots, excluding
those hours in which two or more Slots have been designated as Limited
Slots by the Carriers.
    (4) No later than [date 20 days after the final rule effective
date], the FAA

will publish a list of all Limited Slots and the dates by which they
will expire.
    (d) Unrestricted Slots are those Slots acquired by a Carrier
through a lease with the FAA awarded via an auction. Unrestricted Slots
are not subject to withdrawal by the FAA.

Sec.  93.65  Initial assignment of Slots.

    (a) Except as provided for under paragraphs (b) and (c) of this
section, any Carrier allocated operating rights under the Order,
Operating Limitations at New York LaGuardia Airport, as amended during
the week of January 7-13, 2007, as evidenced by the FAA's records, will
be assigned corresponding Slots in 30-minute periods consistent with
the limits under Sec.  93.63(b). If necessary, the FAA may utilize
administrative measures such as voluntary measures or a lottery to re-
time the assigned Slots within the same hour to meet the 30-minute
limits under Sec.  93.63(b). The FAA Vice President, System Operations
Services, is the final decision-maker for determinations under this
section.
    (b) If a Carrier was allocated operating rights under the Order
Limiting Operations at LaGuardia airport during the week of January 7-
13, 2007, but the operating rights were held by another Carrier, then
the corresponding Slots will be assigned to the Carrier that held the
operating rights for that period, as evidenced by the FAA's records.
    (c) On [date 35 days after the effective date] and every year
thereafter through 2012, twenty (20) percent of the total number of
Limited Slots identified on [date 20 days after the effective date]
shall revert to the FAA in accordance with the schedule published under
Sec.  93.64(c)(4) and be auctioned as Unrestricted Slots by the FAA and
subsequently transferred to another Carrier, effective no later than
the following second Sunday in March.
    (1) The auction shall be blind, and only cash may be bid.
    (2) The holder of a Limited Slot may not bid on its own Slots.
    (3) The holder of a Limited Slot shall retain all proceeds from the
transaction.
    (4) The auction shall be conducted by the FAA, which will dictate
all procedures related to the auction, including but not limited to the
requirement that the Carrier may not specify a minimum bid price.
    (5) In the event no Carrier bids on the Slot, the FAA will retire
it until the next auction.
    (6) The Carrier holding a Limited Slot will be allowed to use the
Slot until the following second Sunday in March.

Sec.  93.66  Assignment of new or returned Slots.

    (a) New capacity or capacity returned to the FAA pursuant to the
provisions of Sec.  93.70 will be reassigned by the FAA via an auction
conducted pursuant to Sec.  93.65(c). Slots acquired from the FAA under
this section shall be designated as Unrestricted Slots.
    (b) The FAA may decide to accumulate a quantity of Slots prior to
conducting a auction.

Sec.  93.67  Reversion and withdrawal of Slots.

    (a) This section does not apply to Unrestricted Slots.
    (b) A Carrier's Common Slots and Limited Slots revert back to the
FAA 30 days after the Carrier has ceased all operations at LaGuardia
for any reasons other than a strike.
    (c) The FAA may retime, withdraw or temporarily suspend Common
Slots and Limited Slots at any time to fulfill operational needs.
    (d) Common Slots and Limited Slots will be withdrawn in accordance
with the priority list established under Sec.  93.73.
    (e) Except as otherwise provided in paragraph (b) of this section,
the FAA will notify an affected Carrier before withdrawing or
temporarily suspending a Common Slot or Limited Slot and specify the
date by which operations under the Common Slot or Limited Slot must
cease. The FAA will provide at least 45 days notice unless otherwise
required by operational needs.
    (f) Any Common Slot or Limited Slot that is temporarily withdrawn
under this paragraph will be reassigned, if at all, only to the Carrier
from which it was withdrawn, provided the Carrier continues to conduct
Scheduled Operations at LaGuardia.

Sec.  93.68  Sublease and transfer of Slots.

    (a) Carriers may sublease Slots to another Carrier in accordance
with this section and subject to the provisions of the Carrier's lease
agreement with the FAA.
    (b) A Carrier must provide notice to the FAA to sublease a Slot.
Such notice must contain: The Slot number and time, effective dates
and, if appropriate, the duration of the lease. The Carrier may also
provide the FAA with a minimum bid price.
    (c) The FAA will post a notice of the offer to sublease the Slot
and relevant details on the FAA Web site at http://www.faa.gov. An
opening date, closing date and time by which bids must be received will
be provided.
    (d) Upon consummation of the transaction, written evidence of each
Carrier's consent to sublease must be provided to the FAA, as well as
all bids received and the terms of the sublease, including but not
limited to:
    (1) The names of all bidders and all parties to the transaction;
    (2) The offered and final length of the sublease;
    (3) The consideration offered by all bidders and provided by the
sublessee.
    (e) The Slot may not be used until the conditions of paragraph (d)
of this section have been met, and the FAA provides notice of its
approval of the sublease.
    (f) A Carrier may transfer a Slot to another Carrier that conducts
operations at LaGuardia solely under the transferring Carrier's
marketing control, including the entire inventory of the flight. Each
party to such transfer must provide written evidence of its consent to
the transfer and the FAA must confirm and approve these transfers in
writing prior to the effective date of the transaction. However, the
FAA will approve transfers under this paragraph up to five business
days after the actual operation to accommodate operational disruptions
that occur on the same day of the scheduled operation. The FAA Vice
President, System Operations Services is the final decision maker for
any determinations under this section.
    (g) A Carrier wishing to sublease a Slot via an FAA auction under
Sec.  93.65(c), rather than pursuant to this section may do so. The
Carrier shall retain the proceeds and the Slot shall retain the same
designation that it had prior to the Carrier placing it up for auction.

Sec.  93.69  One-for-one trade of Slots.

    (a) A Carrier may trade a Slot with another Carrier on a one-for-
one basis.
    (b) Written evidence of each Carrier's consent to the transfer must
be provided to the FAA.
    (c) Each recipient of the trade may not use the acquired Slot until
written confirmation has been received from the FAA.
    (d) Carriers participating in a one-for-one trade must certify to
the FAA that no consideration or promise of consideration was provided
by either party to the trade.

Sec.  93.70  Minimum usage requirements.

    (a) This section does not apply to Unrestricted Slots.
    (b) Any Common Slot or Limited Slot that is not used at least 80
percent of the time over a consecutive two-month period will be
withdrawn by the FAA.
    (c) Paragraph (b) of this section does not apply to the first 90-
day period after assignment of Common Slots or Limited Slots through a
sublease.

    (d) The FAA may waive the requirements of paragraph (b) of this
section in the event of a highly unusual and unpredictable condition
which is beyond the control of the Carrier and which affects Carrier
operations for a period of five or more consecutive days. Examples of
conditions which could justify a waiver under this paragraph are
weather conditions that result in the restricted operation of the
airport for an extended period of time or the grounding of an aircraft
type.
    (e) The FAA will treat as used any Common Slot or Limited Slot held
by a Carrier on Thanksgiving Day, the Friday following Thanksgiving
Day, and the period from December 24 through the first Sunday of
January.

Sec.  93.71  Unscheduled Operations.

    (a) During the hours of 6 a.m. through 9:59 p.m., Monday through
Friday, and 12 p.m. through 9:59 p.m. on Sunday, no person may operate
an aircraft other than a helicopter to or from LaGuardia unless he or
she has received, for that Unscheduled Operation, a Reservation that is
assigned by the Airport Reservation Office (ARO) or in the case of
Public Charters, in accordance with the procedures in paragraph (d) of
this section. Requests for Reservations will be accepted through the e-
CVRS beginning 72 hours prior to the proposed time of arrival to or
departure from LaGuardia. Additional information on procedures for
obtaining a Reservation is available on the Internet at http://
www.fly.faa.gov/ecvrs.
    (b) Three Reservations are available per hour, including those
assigned to Public Charter operations pursuant to paragraph (d) of this
section. The ARO will assign Reservations on a 30-minute basis.
    (c) The ARO will receive and process all Reservation requests for
unscheduled arrivals and departures at LaGuardia. Reservations are
assigned on a ``first-come, first-served'' basis determined by the time
the request is received at the ARO. Reservations must be cancelled if
they will not be used as assigned.
    (d) One Reservation per hour will be available for allocation to
Public Charter operations prior to the 72-hour Reservation window in
paragraph (a) of this section.
    (1) The Public Charter Operator may request a Reservation up to six
months in advance of the date of flight operation. Reservation requests
should be submitted to Federal Aviation Administration, Slot
Administration Office, AGC-200, 800 Independence Avenue, SW.,
Washington, DC 20591. Submissions may be made via facsimile to (202)
267-7277 or by e-mail to<EMAIL_ADDRESS>    (2) The Public Charter Operator must certify that its prospectus
has been accepted by the Department of Transportation in accordance
with 14 CFR part 380.
    (3) The Public Charter Operator must identify the call sign/flight
number or aircraft registration number of the direct air carrier, the
date and time of the proposed operation(s), the airport served
immediately prior to or after LaGuardia, and aircraft type. Any changes
to an approved Reservation must be approved in advance by the Slot
Administration Office.
    (4) If Reservations under paragraph (d)(1) of this section have
already been allocated, the Public Charter Operator may request a
Reservation under paragraph (a) of this section.
    (e) The filing of a request for a Reservation does not constitute
the filing of an IFR flight plan as required by regulation. The IFR
flight plan may be filed only after the Reservation is obtained, must
include the Reservation number in the ``Remarks'' section, and must be
filed in accordance with FAA regulations and procedures.
    (f) Air Traffic Control will accommodate declared emergencies
without regard to Reservations. Non-emergency flights in direct support
of national security, law enforcement, military aircraft operations, or
public-use aircraft operations may be accommodated above the
Reservation limits with the prior approval of the Vice President,
System Operations Services, Air Traffic Organization. Procedures for
obtaining the appropriate waiver will be available on the Internet at
http://www.fly.faa.gov/ecvrs.
    (g) Notwithstanding the limits in paragraph (b) of this section, if
the Air Traffic Organization determines that air traffic control,
weather and capacity conditions are favorable and significant delay is
unlikely, the FAA may determine that additional Reservations may be
accommodated for a specific time period. Unused Slots may also be made
available temporarily for Unscheduled Operations. Reservations for
additional operations must be obtained through the ARO.
    (h) Reservations may not be bought, sold or leased.

Sec.  93.72  Reporting requirements.

    (a) Within 14 days after the last day of the two-month period
beginning March 8, 2009, and every two months thereafter, each Carrier
holding a Common Slot or Limited Slot must report, in a format
acceptable to the FAA, the following information for each Common Slot
or Limited Slot:
    (1) The Slot number, time, and arrival or departure designation;
    (2) The operating Carrier;
    (3) The date and scheduled time of each of the operations conducted
pursuant to the Slot, including the flight number and origin/
destination;
    (4) The aircraft type identifier.
    (b) The FAA may withdraw the Slot of any Carrier that does not meet
the reporting requirements of paragraph (a) of this section.

Sec.  93.73  Administrative provisions.

    (a) Each Slot shall be assigned a number for administrative
convenience.
    (b) The FAA will assign priority numbers by random lottery for
Common Slots and Limited Slots at LaGuardia. Each Common Slot and
Limited Slot will be assigned a withdrawal priority number, and the 30-
minute time period for the Common Slot or Limited Slot, frequency, and
the arrival or departure designation.
    (c) If the FAA determines that operations need to be reduced for
operational reasons, the lowest assigned priority number Common Slots
or Limited Slots will be the last withdrawn.
    (d) Any Slot available on a temporary basis may be assigned by the
FAA to a Carrier on a non-permanent, first-come, first-served basis
subject to permanent assignment under this subpart. Any remaining Slot
may be made available for Unscheduled Operations on a non-permanent
basis and will be assigned under the same procedures applicable to
other operating Reservations.
    (e) All transactions under this subpart must be in a written or
electronic format approved by the FAA.

    Issued in Washington, DC, on April 14, 2008.
Nan Shellabarger,
Director of Aviation Policy and Plans.
 [FR Doc. E8-8308 Filed 4-16-08; 8:45 am]

BILLING CODE 4910-13-P


[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Notices]
[Pages 38375-38376]
[FR Doc No: 2012-15735]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Notice of Availability of the Final Environmental Impact
Statement (FEIS) for the Taos Regional Airport Layout Plan
Improvements, Taos, NM

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Notice of Availability of the Final Environmental Impact
Statement.

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    Location: The Taos Regional Airport (SKX) is located in north Taos
County, New Mexico, approximately seven miles northwest of the Town of
Taos.
SUMMARY: The FAA is issuing this Notice to advise the public that it
has prepared a Final Environmental Impact Statement (FEIS) for a
proposed new runway and associated facilities and improvements at the
Taos Regional Airport, Taos, New Mexico. The FEIS reflects the Section
106 consultations between the FAA, the Taos Pueblo, Town of Taos,
National Park Service, Advisory Council on Historic Preservation, New
Mexico State Historic Preservation Officer (SHPO), and the New Mexico
Department of Transportation regarding adverse effects on the Taos
Pueblo World Heritage Site and other traditional cultural properties
within the National Register Eligible Historic District associated with
the Taos Pueblo. The FEIS also includes floodplain impact evaluations.
    The FAA is seeking comments on those sections of the FEIS that have
been updated and/or contain information that has become available since
the release of the DEIS. Please see the SUPPLEMENTARY INFORMATION
section below for more information.
    The FAA is providing a thirty day (30) day FEIS review period. The
FEIS review period begins on the date of the publication of this Notice
of Availability in the Federal Register, and will close on July 30,
2012. The FAA must receive written comments on these subsections
postmarked no later than July 30, 2012. Comments received after that
date may not be considered by the FAA.
    All comments on the FEIS are to be submitted to Mr. Dean McMath of
the FAA, at the address shown in the section below entitled, ``For
Further Information or to Submit Comments''.

SUPPLEMENTARY INFORMATION: The FAA, as the lead Federal agency, has
prepared the EIS for the proposed new runway and related facilities and
improvements at SKX. The Department of Interior National Park Service
and the Taos Pueblo are Cooperating Agencies for the preparation of the
EIS.
    The airport development action proposed by the Town of Taos (the
Airport Sponsor) is the construction of a new runway at SKX that would
be 8,600 feet long and 100 feet wide. Related facilities and
improvements proposed by the Airport Sponsor include grading and
drainage improvements, taxiways, new airfield lighting, communication
equipment, and navigational aids associated with the new runway;
shortening the existing Runway 4/22 by 420 feet; construction of a new
airport access road; and, extension of an on-airport access road.
    The FAA published a Draft Environmental Impact Statement (DEIS) in
October, 2006. The DEIS was prepared pursuant to the National
Environmental Policy Act of 1969 (NEPA). The DEIS comparatively
assessed and disclosed the potential future impacts of the No-Action

Alternative and three proposed action alternatives designated as
Alternative 2-C, Alternative 2-D, and Alternative 3.
    Since the publication of the DEIS, the FAA has addressed comments
received on the DEIS; addressed comments on the Preliminary FEIS
provided by Cooperating Agencies; conducted additional technical
analyses; conducted the Section 106 consultation process; and prepared
the FEIS. The Section 106 consultation process resulted in the
execution of a Memorandum of Agreement (MOA) in February 2012.
    Because the DEIS is more than three years old, the FAA evaluated
the DEIS to determine whether the consideration of alternatives,
affected environment, environmental impacts, and mitigation measures in
the DEIS remains applicable, accurate, and valid in accordance with FAA
Order 1050.1E, paragraph 514a and 5050.4B, Section 1401.b.3. The FAA
found that substantial changes in these factors have not occurred and
that a complete revision or supplement to the DEIS was not warranted.
However, FAA's review of current information did note that some social
and environmental changes have occurred since the DEIS was published in
2006. The FAA evaluated the new information and determined that the
changes did not affect the range of alternatives considered or the
detailed analysis of alternatives conducted in this FEIS. However, to
document and disclose the social and environmental changes that have
occurred, the FAA prepared a technical memorandum that presents the new
information and discusses any potential impacts related to the changed
social and environmental conditions. The technical memorandum is
contained in the FEIS.
    The FAA is making available the FEIS it prepared addressing a
proposed new runway and associated facilities and improvements at the
Taos Regional Airport. The FEIS discloses:
     The purpose and need for the proposed project;
     Reasonable alternatives analyzed and the FAA's preferred
alternative;
     Potential environmental impacts and consequences
associated with those alternatives;
     FAA's responses to comments it received on the DEIS; and
     How FAA has complied with various resource laws,
regulations and executive orders, including the National Environmental
Policy Act, Section 106 of the National Historic Preservation Act,
Executive Order (EO) 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'', and EO
11988, ``Floodplain Management.''
    Public Review and Comment: The FEIS is available for review during
normal business hours at the following locations:
     FAA Southwest Regional Office, 2601 Meacham Boulevard,
Fort Worth, Texas 76137,
     Taos Regional Airport, Highway 64 West, 1 Airport Road,
Taos, New Mexico 87571,
     Taos Town Hall, 400 Camino de la Placita, Taos, New Mexico
87571, and
     Taos Public Library, 402 Camino de la Placita, Taos, New
Mexico 87571.
    Comments should be as specific as possible and address the analysis
of potential environmental impacts, the adequacy of the proposed
action, or the merits of alternatives and the mitigation being
considered. Reviewers should organize their participation so that it is
meaningful and makes the agency aware of the viewer's interests and
concerns using quotations and other specific references to the text of
the FEIS and related documents. This is intended to ensure that
substantive comments and concerns are made available to the FAA in a
timely manner so that the FAA has an opportunity to address them in its
Record of Decision (ROD).
    Comments can only be accepted with the full name and address of the
individual commenting. Before including your address, phone number,
email address, or other personal identifying information in your
comment, be advised that your entire comment--including your personal
identifying information--may be made publicly available at any time.
While you can ask the FAA in your comment to withhold from public
review your personal identifying information, the FAA cannot guarantee
that it will be able to do so.
    After review and consideration of the comments received on the
FEIS, and sometime after the 30-day comment period on the FEIS has
ended, the FAA will issue its ROD.

FOR FURTHER INFORMATION CONTACT OR TO SUBMIT COMMENTS: Dean McMath,
ASW-613, Regional Environmental Programs Manager, Federal Aviation
Administration, Southwest Regional Office, Fort Worth, Texas 76193,
telephone<PHONE_NUMBER>.

    Issued in Fort Worth, Texas, on June 19, 2012.
Kelvin L. Solco,
Manager, Airports Division.
[FR Doc. 2012-15735 Filed 6-26-12; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Notices]
[Pages 52363-52367]
[FR Doc No: 2011-21323]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29755; File No. 812-13862]

Tortoise Power and Energy Infrastructure Fund, Inc. and Tortoise
Capital Advisors, L.L.C.; Notice of Application

August 16, 2011.
AGENCY: Securities and Exchange Commission (``Commission'').

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

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

Applicants: Tortoise Power and Energy Infrastructure Fund, Inc. (the
``Company'') and Tortoise Capital Advisors, L.L.C. (the ``Investment
Adviser'').

Filing Dates: The application was filed on January 25, 2011, and
amended on May 27, 2011, and August 15, 2011.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on September 9, 2011, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, 20549-1090; Applicants, 11550 Ash Street, Suite 300,
Leawood, KS 66211.

FOR FURTHER INFORMATION CONTACT: Christine Y. Greenlees, Senior
Counsel, at<PHONE_NUMBER>, or Mary Kay Frech, Branch Chief, at (202)
551-6821 (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 website by searching for the file number, or for an
applicant using the Company name box, at http://www.sec.gov/search/search.htm, or by calling<PHONE_NUMBER>.

Applicants' Representations

    1. The Company is a closed-end management investment company
registered under the Act and organized

as a Maryland corporation.\1\ The Company's investment objective is to
provide a high level of current income, with a secondary objective of
capital appreciation. The Company's common stock is listed on the New
York Stock Exchange. As of December 31, 2010, the Company had not
issued any preferred stock. Applicants believe that the common
stockholders of a Fund are generally conservative, distribution
sensitive investors who wish to have a predictable and consistent
distribution stream.
---------------------------------------------------------------------------

    \1\ The Company is the only closed-end investment company that
currently intends to rely on the order. Applicants request that the
order also apply to each registered closed-end investment company
that in the future is advised by the Investment Adviser (including
any successor in interest) or by an entity controlling, controlled
by, or under common control (within the meaning of section 2(a)(9)
of the Act) with the Investment Adviser (such investment companies,
together with the Company, the ``Funds''). Any Fund that relies on
the order in the future will comply with the terms and conditions of
the application and will satisfy each of the representations in the
application, except that such representations will be made in
respect of actions by the board of directors of such future Fund at
a future time. A successor in interest is limited to entities that
result from a reorganization into another jurisdiction or a change
in the type of business organization.
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    2. The Investment Adviser, a Delaware limited liability company, is
registered under the Investment Advisers Act of 1940 (the ``Advisers
Act''). The Investment Adviser acts as investment adviser to the
Company. Any Investment Adviser to a Fund will be registered under the
Advisers Act.
    3. Applicants state that on June 22, 2009, the board of directors
(the ``Board'') of the Company, including all of the directors who are
not ``interested persons'' of the Company as defined in section
2(a)(19) of the Act (the ``Independent Directors''), reviewed
information regarding the purpose and terms of a proposed distribution
policy, the likely effects of such policy on the Company's long-term
total return (in relation to market price and net asset value (``NAV'')
per common share) and the relationship between the Company's
distribution rate on its common stock under the policy and the
Company's total return (in relation to NAV per share). Applicants state
that the Independent Directors also considered what conflicts of
interest the Investment Adviser and any affiliated persons of the
Investment Adviser and the Company might have with respect to the
adoption or implementation of such policy. Applicants further state
that after considering such information, the Board, including the
Independent Directors, approved a distribution policy with respect to
the Company's common stock (the ``Distribution Policy'') and determined
that such Policy is consistent with the Company's investment
objective(s) and in the best interests of the Company's common
stockholders.
    4. Applicants state that the purpose of the Distribution Policy is
to permit the Company to distribute over the course of each year,
through periodic distributions as nearly equal as practicable and any
required special distributions, an amount closely approximating the
total taxable income of the Company during such year and, if so
determined by its Board, all or a portion of the return of capital paid
by portfolio companies to the Company during such year. Applicants note
that under the Distribution Policy, the Company would distribute to its
respective common stockholders a fixed monthly amount that may be
adjusted from time to time. Applicants further state that the minimum
annual distribution rate would be independent of the Company's
performance during any particular period, but would be expected to
correlate with the Company's performance over time. Applicants explain
that except for extraordinary distributions and potential increases or
decreases in the final dividend periods in light of the Company's
performance for the entire calendar year and to enable the Company to
comply with the distribution requirements of subchapter M of the
Internal Revenue Code of 1986 (``Code'') for the calendar year, each
distribution on the common stock would be at the amount then in effect.
    5. Applicants state that the Board has adopted policies and
procedures under rule 38a-1 under the Act that are reasonably designed
to ensure that all notices required to be sent to Company stockholders
pursuant to section 19(a) of the Act, rule 19a-1 under the Act, and
condition 4 below (each a ``19(a) Notice'') comply with condition 2.a.
below, and that all other written communications by the Company or its
agents regarding distributions under the Distribution Policy include
the disclosure required by condition 3.a. below. Applicants state that
the Board also has adopted policies and procedures that require the
Company to keep records that demonstrate its compliance with all of the
conditions of the requested order and that are necessary for the
Company to form the basis for, or demonstrate the calculation of, the
amounts disclosed in its 19(a) Notices. Any future Fund would adopt
similar policies and procedures before relying on the requested relief.

Applicants' Legal Analysis

    1. Section 19(b) of the Act generally makes it unlawful for any
registered investment company to make long-term capital gains
distributions more than once every twelve months. Rule 19b-1 under the
Act limits the number of capital gains dividends, as defined in section
852(b)(3)(C) of the Code (``distributions''), that a fund may make with
respect to any one taxable year to one, plus a supplemental ``clean
up'' distribution made pursuant to section 855 of the Code not
exceeding 10% of the total amount distributed for the year, plus one
additional capital gain dividend made in whole or in part to avoid the
excise tax under section 4982 of the Code.
    2. Section 6(c) of the Act provides that the Commission may, by
order upon application, conditionally or unconditionally exempt any
person, security, or transaction, or any class or classes of persons,
securities or transactions, from any provision of the Act, if and to
the extent that the exemption is necessary or appropriate in the public
interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
    3. Applicants state that one of the concerns underlying section
19(b) and rule 19b-1 is that stockholders might be unable to
differentiate between frequent distributions of capital gains and
dividends from investment income. Applicants state, however, that rule
19a-1 effectively addresses this concern by requiring that a separate
statement showing the sources of a distribution (e.g., net investment
income, net short-term capital gains, net long-term capital gains and/
or return of capital) accompany any distributions (or the confirmation
of the reinvestment of distributions) estimated to be sourced in part
from capital gains or capital. Applicants also state that the same
information is included in the Company's annual reports to stockholders
and similar information is included on its IRS Form 1099-DIV, which is
sent to each common and any preferred stockholder receiving
distributions during a particular year (including stockholders who have
sold shares during the year).
    4. Applicants further state that the Company will make the
additional disclosures required by the conditions set forth below, and
has adopted compliance policies and procedures in accordance with rule
38a-1 under the Act to ensure that all required 19(a) Notices and
disclosures are sent to stockholders. Applicants argue that by

providing the information required by section 19(a) and rule 19a-1, and
by complying with the procedures adopted under the Distribution Policy
and the conditions listed below, the Company's stockholders would be
provided sufficient information to understand that their periodic
distributions are not tied to the Company's net investment income
(which for this purpose is the Company's taxable income other than from
capital gains) and realized capital gains to date, and may not
represent yield or investment return. Applicants also state that
compliance with the Company's compliance procedures and condition 3 set
forth below will ensure that prospective stockholders and third parties
are provided with the same information. Accordingly, applicants assert
that continuing to subject the Company to section 19(b) and rule 19b-1
would afford stockholders no extra protection.
    5. Applicants note that section 19(b) and rule 19b-1 also were
intended to prevent certain improper sales practices, including, in
particular, the practice of urging an investor to purchase shares of a
fund on the basis of an upcoming capital gains dividend (``selling the
dividend''), where the dividend would result in an immediate
corresponding reduction in NAV and would be in effect a taxable return
of the investor's capital. Applicants submit that the ``selling the
dividend'' concern should not apply to closed-end investment companies,
such as the Company, that do not continuously distribute shares.
According to applicants, if the underlying concern extends to secondary
market purchases of stock of closed-end funds that are subject to a
large upcoming capital gains dividend, adoption of a periodic
distribution plan actually helps minimize the concern by avoiding,
through periodic distributions, any buildup of large end-of-the-year
distributions.
    6. Applicants also note that common stock of a closed-end fund
often trades in the marketplace at a discount to the fund's NAV.
Applicants believe that this discount may be reduced if the fund is
permitted to pay relatively frequent dividends on its common stock at a
consistent rate, whether or not those dividends contain an element of
capital gain.
    7. Applicants assert that the application of rule 19b-1 to a
distribution policy actually could have an undesirable influence on
portfolio management decisions. Applicants state that, in the absence
of an exemption from rule 19b-1, the implementation of a periodic
distribution plan imposes pressure on management (a) not to realize any
net long-term capital gains until the point in the year that the fund
can pay all of its remaining distributions in accordance with rule 19b-
1, and (b) not to realize any long-term capital gains during any
particular year in excess of the amount of the aggregate pay-out for
the year (since as a practical matter excess gains must be distributed
and accordingly would not be available to satisfy pay-out requirements
in following years), notwithstanding that purely investment
considerations might favor realization of long-term gains at different
times or in different amounts. Applicants thus assert that by limiting
the number of capital gain distributions that a fund may make with
respect to any one year, rule 19b-1 may prevent the efficient operation
of a periodic distribution plan whenever that fund's realized net long-
term capital gains in any year exceed the total of the periodic
distributions that may include such capital gains under the rule.
    8. Applicants also assert that rule 19b-1 may cause fixed regular
periodic distributions under a periodic distribution plan to be funded
with returns of capital \2\ (to the extent net investment income and
realized short-term capital gains are insufficient to fund the
distribution), even though realized net long-term capital gains
otherwise could be available. To distribute all of a fund's long-term
capital gains within the limits in rule 19b-1, the Company may be
required to make total distributions in excess of the annual amount
called for by its Distribution Policy, or to retain and pay taxes on
the excess amount. Applicants thus assert that the requested order
would minimize these effects of rule 19b-1 by enabling the Funds to
realize long-term capital gains as often as investment considerations
dictate without fear of violating rule 19b-1.
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    \2\ Returns of capital as used in the application means return
of capital for financial accounting purposes and not for tax
accounting purposes.
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    9. Applicants state that Revenue Ruling 89-81 under the Code
requires that a fund that has both common stock and preferred stock
outstanding designate the types of income, e.g., investment income and
capital gains, in the same proportion as the total distributions
distributed to each class for the tax year. To satisfy the
proportionate designation requirements of Revenue Ruling 89-81,
whenever a fund has net realized long-term capital gains with respect
to a given tax year, the fund must designate the required proportionate
share of such capital gains to be included in common and preferred
stock distributions. Applicants state that although rule 19b-1 allows a
fund some flexibility with respect to the frequency of capital gains
distributions, a fund might use all of the exceptions available under
the rule for a tax year and still need to distribute additional capital
gains allocated to the preferred stock to comply with Revenue Ruling
89-81.
    10. Applicants assert that the potential abuses addressed by
section 19(b) and rule 19b-1 do not arise with respect to preferred
stock issued by a closed-end fund. Applicants assert that such
distributions are fixed or determined in periodic auctions by reference
to short-term interest rates rather than by reference to performance of
the issuer, and Revenue Ruling 89-81 determines the proportion of such
distributions that are comprised of the long-term capital gains.
    11. Applicants also submit that the ``selling the dividend''
concern is not applicable to preferred stock, which entitles a holder
to no more than a periodic dividend at a fixed rate or the rate
determined by the market, and, like a debt security, is priced based
upon its liquidation value, dividend rate, credit quality, and
frequency of payment. Applicants state that investors buy preferred
shares for the purpose of receiving payments at the frequency bargained
for, and do not expect the liquidation value of their shares to change.
    12. Applicants request an order under section 6(c) of the Act
granting an exemption from section 19(b) of the Act and rule 19b-1
under the Act to permit the Company to distribute periodic capital gain
dividends (as defined in section 852(b)(3)(C) of the Code) as often as
monthly in any one taxable year with respect to its common stock and as
frequently as distributions are specified by or in accordance with the
terms of any outstanding preferred stock that the Company may issue.

Applicants' Conditions

    Applicants agree that any order of the Commission granting the
requested relief will be subject to the following conditions:
    1. Compliance Review and Reporting. The Fund's chief compliance
officer will: (a) report to the Fund's Board, no less frequently than
once every three months or at the next regularly scheduled quarterly
Board meeting, whether (i) the Fund and its Investment Adviser have
complied with the conditions of the order, and (ii) a material
compliance matter (as defined in rule 38-1(e)(2) under the Act) has
occurred with respect to such conditions; and (b) review the adequacy
of the policies and procedures adopted

by the Board no less frequently than annually.
    2. Disclosures to Fund Stockholders.
    a. Each 19(a) Notice disseminated to the holders of the Fund's
common stock, in addition to the information required by section 19(a)
and rule 19a-1:
    i. Will provide, in a tabular or graphical format:
    (1) The amount of the distribution, on a per share basis, together
with the amounts of such distribution amount, on a per share basis and
as a percentage of such distribution amount, from estimated: (A) Net
investment income; (B) net realized short-term capital gains; (C) net
realized long-term capital gains; and (D) return of capital or other
capital source;
    (2) The fiscal year-to-date cumulative amount of distributions, on
a per share basis, together with the amounts of such cumulative amount,
on a per share basis and as a percentage of such cumulative amount of
distributions, from estimated: (A) Net investment income; (B) net
realized short-term capital gains; (C) net realized long-term capital
gains; and (D) return of capital or other capital source;
    (3) The average annual total return in relation to the change in
NAV for the 5-year period (or, if the Fund's history of operations is
less than five years, the time period commencing immediately following
the Fund's first public offering) ending on the last day of the month
ended immediately prior to the most recent distribution record date
compared to the current fiscal period's annualized distribution rate
expressed as a percentage of NAV as of the last day of the month prior
to the most recent distribution record date; and
    (4) The cumulative total return in relation to the change in NAV
from the last completed fiscal year to the last day of the month prior
to the most recent distribution record date compared to the fiscal
year-to-date cumulative distribution rate expressed as a percentage of
NAV as of the last day of the month prior to the most recent
distribution record date. Such disclosure shall be made in a type size
at least as large as and as prominent as the estimate of the sources of
the current distribution; and
    ii. Will include the following disclosure:
    (1) ``You should not draw any conclusions about the Fund's
investment performance from the amount of this distribution or from the
terms of the Fund's Distribution Policy'';
    (2) ``The Fund estimates that it has distributed more than its
income and net realized capital gains; therefore, a portion of your
distribution may be a return of capital. A return of capital may occur,
for example, when some or all of the money that you invested in the
Fund is paid back to you. A return of capital distribution does not
necessarily reflect the Fund's investment performance and should not be
confused with `yield' or `income' ''; \3\ and
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    \3\ The disclosure in this condition 2(a)(ii)(2) will be
included only if the current distribution or the fiscal year-to-date
cumulative distributions are estimated to include a return of
capital.
---------------------------------------------------------------------------

    (3) ``The amounts and sources of distributions reported in this
19(a) Notice are only estimates and are not being provided for tax
reporting purposes. The actual amounts and sources of the amounts for
tax reporting purposes will depend upon the Fund's investment
experience during the remainder of its fiscal year and may be subject
to changes based on tax regulations. The Fund will send you a Form
1099-DIV for the calendar year that will tell you how to report these
distributions for Federal income tax purposes.'' Such disclosure shall
be made in a type size at least as large as and as prominent as any
other information in the 19(a) Notice and placed on the same page in
close proximity to the amount and the sources of the distribution.
    b. On the inside of the front cover of each report to stockholders
under rule 30e-1 under the Act, the Fund will:
    i. Describe the terms of the Distribution Policy (including the
fixed amount or fixed percentage of the distributions and the frequency
of the distributions);
    ii. Include the disclosure required by condition 2.a.ii.(1) above;
    iii. State, if applicable, that the Distribution Policy provides
that the Board may amend or terminate the Distribution Policy at any
time without prior notice to Fund stockholders; and
    iv. Describe any reasonably foreseeable circumstances that might
cause the Fund to terminate the Distribution Policy and any reasonably
foreseeable consequences of such termination.
    c. Each report provided to stockholders under rule 30e-1 under the
Act and each prospectus filed with the Commission on Form N-2 under the
Act, will provide the Fund's total return in relation to changes in NAV
in the financial highlights table and in any discussion about the
Fund's total return.
    3. Disclosure to Stockholders, Prospective Stockholders and Third
Parties.
    a. The Fund will include the information contained in the relevant
19(a) Notice, including the disclosure required by condition 2.a.ii.
above, in any written communication (other than a communication on Form
1099) about the Distribution Policy or distributions under the Policy
by the Fund, or agents that the Fund has authorized to make such
communication on the Fund's behalf, to any Fund stockholder,
prospective stockholder or third-party information provider;
    b. The Fund will issue, contemporaneously with the issuance of any
19(a) Notice, a press release containing the information in the 19(a)
Notice and file with the Commission the information contained in such
19(a) Notice, including the disclosure required by condition 2.a.ii.
above, as an exhibit to its next filed Form N-CSR;
    c. The Fund will post prominently a statement on its (or the
Investment Adviser's) Web site containing the information in each 19(a)
Notice, including the disclosure required by condition 2.a.ii. above,
and will maintain such information on such Web site for at least 24
months.
    4. Delivery of 19(a) Notices to Beneficial Owners. If a broker,
dealer, bank or other person (``financial intermediary'') holds common
stock issued by the Fund in nominee name, or otherwise, on behalf of a
beneficial owner, the Fund: (a) Will request that the financial
intermediary, or its agent, forward the 19(a) Notice to all beneficial
owners of the Fund's shares held through such financial intermediary;
(b) will provide, in a timely manner, to the financial intermediary, or
its agent, enough copies of the 19(a) Notice assembled in the form and
at the place that the financial intermediary, or its agent, reasonably
requests to facilitate the financial intermediary's sending of the
19(a) Notice to each beneficial owner of the Fund's shares; and (c)
upon the request of any financial intermediary, or its agent, that
receives copies of the 19(a) Notice, will pay the financial
intermediary, or its agent, the reasonable expenses of sending the
19(a) Notice to such beneficial owners.
    5. Additional Board Determinations for Funds Whose Common Stock
Trades at a Premium.
    If:
    a. Each Fund's common stock has traded on the stock exchange that
they primarily trade on at the time in question at an average premium
to NAV equal to or greater than 10%, as determined on the basis of the
average of the discount or premium to NAV of the Fund's common stock as
of the close of each trading day over a 12-week rolling period (each
such 12-week

rolling period ending on the last trading day of each week); and
    b. The Fund's annualized distribution rate for such 12-week rolling
period, expressed as a percentage of NAV as of the ending date of such
12-week rolling period, is greater than the Fund's average annual total
return in relation to the change in NAV over the 2-year period ending
on the last day of such 12-week rolling period; then:
    i. At the earlier of the next regularly scheduled meeting or within
four months of the last day of such 12-week rolling period, the Board,
including a majority of the Independent Directors:
    (1) Will request and evaluate, and the Investment Adviser will
furnish, such information as may be reasonably necessary to make an
informed determination of whether the Distribution Policy should be
continued or continued after amendment;
    (2) Will determine whether continuation, or continuation after
amendment, of the Distribution Policy is consistent with the Fund's
investment objective(s) and policies and is in the best interests of
the Fund and its stockholders, after considering the information in
condition 5.b.i.(1) above; including, without limitation:
    (A) Whether the Distribution Policy is accomplishing its
purpose(s);
    (B) The reasonably foreseeable material effects of the Distribution
Policy on the Fund's long-term total return in relation to the market
price and NAV of the Fund's common stock; and
    (C) The Fund's current distribution rate, as described in condition
5.b. above, compared with the Fund's average annual taxable income or
total return over the 2-year period, as described in condition 5.b., or
such longer period as the Board deems appropriate; and
    (3) Based upon that determination, will approve or disapprove the
continuation, or continuation after amendment, of the Distribution
Policy; and
    ii. The Board will record the information considered by it,
including its consideration of the factors listed in condition
5.b.i.(2) above, and the basis for its approval or disapproval of the
continuation, or continuation after amendment, of the Distribution
Policy in its meeting minutes, which must be made and preserved for a
period of not less than six years from the date of such meeting, the
first two years in an easily accessible place.
    6. Public Offerings. The Fund will not make a public offering of
the Fund's common stock other than:
    a. A rights offering below NAV to holders of the Fund's common
stock;
    b. An offering in connection with a dividend reinvestment plan,
merger, consolidation, acquisition, spin-off or reorganization of the
Fund; or
    c. An offering other than an offering described in conditions 6.a.
and 6.b. above, provided that, with respect to such other offering:
    i. The Fund's annualized distribution rate for the six months
ending on the last day of the month ended immediately prior to the most
recent distribution record date, expressed as a percentage of NAV per
share as of such date,\4\ is no more than 1 percentage point greater
than the Fund's average annual total return for the 5-year period
ending on such date; \5\ and
---------------------------------------------------------------------------

    \4\ If the Fund has been in operation fewer than six months, the
measured period will begin immediately following the Fund's first
public offering.
    \5\ If the Fund has been in operation fewer than five years, the
measured period will begin immediately following the Fund's first
public offering.
---------------------------------------------------------------------------

    ii. The transmittal letter accompanying any registration statement
filed with the Commission in connection with such offering discloses
that the Fund has received an order under section 19(b) to permit it to
make periodic distributions of long-term capital gains with respect to
its common stock as frequently as twelve times each year, and as
frequently as distributions are specified by or determined in
accordance with the terms of any outstanding preferred stock as such
Fund may issue.
    7. Amendments to Rule 19b-1. The requested order will expire on the
effective date of any amendment to rule 19b-1 that provides relief
permitting certain closed-end investment companies to make periodic
distributions of long-term capital gains with respect to their
outstanding common stock as frequently as twelve times each year.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-21323 Filed 8-19-11; 8:45 am]
BILLING CODE 8011-01-P