[Federal Register Volume 80, Number 120 (Tuesday, June 23, 2015)]
[Notices]
[Pages 36015-36019]
[FR Doc No: 2015-15341]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75191; File No. SR-NYSEArca-2014-117]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order
Disapproving Proposed Rule Change To Remove the Exchange's Quote
Mitigation Plan as Provided in Commentary .03 to Exchange Rule 6.86

June 17, 2015.

I. Introduction

    On October 2, 2014, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to
remove the Exchange's quote mitigation plan as provided by Commentary
.03 to NYSE Arca Rule 6.86. The proposed rule change was published for
comment in the Federal Register on October 21, 2014.\3\ On December 2,
2014, pursuant to Section 19(b)(2) of the Act,\4\ the Commission
designated a longer period within which to approve the proposed rule
change, disapprove the proposed rule change, or institute proceedings
to determine whether to approve or disapprove the proposed rule
change.\5\ On January 8, 2015, the Exchange submitted a comment letter
in further support of its proposal.\6\ On January 16, 2015, the
Commission issued an Order Instituting Proceedings to Determine Whether
to Approve or Disapprove the proposed rule change.\7\ On February 27,
2015 and June 4, 2015, the Exchange submitted comment letters in
further support of its proposal.\8\ No additional comment letters were
submitted. This order disapproves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 73362 (October 15,
2014), 79 FR 62983 (``Notice'').
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 73720, 79 FR 72747
(December 8, 2014). The Commission designated January 19, 2015, as
the date by which it should approve, disapprove, or institute
proceedings to determine whether to approve or disapprove the
proposed rule change.
    \6\ See Letter from Elizabeth King, Secretary & General Counsel,
Exchange, to Kevin O'Neill, Deputy Secretary, Commission, dated
January 8, 2015 (``NYSE Arca Letter 1'') available at http://www.sec.gov/comments/sr-nysearca-2014-117/nysearca2014117.shtml.
    \7\ See Securities and Exchange Release No. 74088, 80 FR 3687
(January 23, 2015) (Order Instituting Proceedings to Determine
Whether to Approve or Disapprove a Proposal Rule Change to Remove
the Exchange's Quote Mitigation Plan as Provided by Commentary .03
to Exchange Rule 6.86) (``OIP'').
    \8\ See Letters from Elizabeth King, Secretary & General
Counsel, Exchange, to Kevin O'Neill, Deputy Secretary, Commission,
dated February 27, 2015 (``NYSE Arca Letter 2'') available athttp://
www.sec.gov/comments/sr-nysearca-2014-117/nysearca2014117-2.pdf and
to Brent Fields, Secretary, Commission, dated June 4, 2015 (``NYSE
Arca Letter 3'') available at http://www.sec.gov/comments/sr-nysearca-2014-117/nysearca2014117-3.pdf.
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II. Description of the Proposal

    In 2007, the Exchange adopted a quote mitigation plan in connection
with the Options Penny Pilot Program (``Penny Pilot'').\9\ According to
the Exchange, the quote mitigation plan was designed to reduce the
number of quotation messages sent by the Exchange to the Options Price
Reporting Authority (``OPRA'') by only submitting quote messages for
``active'' series.\10\ The Exchange defines active series under the
quote mitigation plan in Commentary .03 to Exchange Rule 6.86 as: (i)
Series that have traded on any options exchange in the previous 14
calendar days; or (ii) series that are solely listed on the Exchange;
or (iii) series that have been trading ten days or less; or (iv) series
for which the Exchange has received an order.\11\ In addition, under
the Exchange's quote mitigation plan, the Exchange may define a series
as active on an intraday basis if: (i) The series trades at any options
exchange; (ii) the Exchange receives an order in the series; or (iii)
the Exchange receives a request for quote from a customer in that
series.\12\
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    \9\ See Securities and Exchange Release No. 55156 (January 23,
2007), 72 FR 4759 (February 1, 2007) (Order Granting Approval of SR-
NYSEArca-2006-73) (``Quote Mitigation Approval Order''). In this
Order, the Commission approved a proposed rule change to amend the
NYSE Arca rules to (i) permit thirteen options classes to be quoted
in pennies on a pilot basis and (ii) adopt a quote mitigation plan.
In approving the Penny Pilot, the Commission analyzed data provided
by the options exchanges to assess the potential impact the Penny
Pilot would have on, among other things, the increase in quotation
message traffic. According to the Exchange, the quote mitigation
plan was designed to mitigate the volume of data processed and
disseminated by OPRA. See Securities and Exchange Release No. 55590
(October 12, 2006), 72 FR 4759 (October 18, 2006) (Notice of SR-
NYSEArca-2006-73). In approving the Exchange's quote mitigation plan
the Commission stated that ``because the Commission expects that the
Penny Pilot Program will increase quote message traffic, the
Commission is also approving the Exchange's proposal to reduce the
number of quotations it disseminates.'' See Quote Mitigation
Approval Order at 4760.
    \10\ See Notice, supra note 3, at 62983.
    \11\ See Exchange Rule 6.86, Commentary .03, and Notice, supra
note 3, at 62983.
    \12\ See id.
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    The Exchange proposes to remove its quote mitigation plan from its
rules by deleting Commentary .03 to Exchange Rule 6.86.\13\ The
Exchange states that its quote mitigation plan is no longer necessary
primarily for three reasons. First, the Exchange states that its
incorporation of select provisions of the Options Listing Procedures
Plan (``OLPP'') \14\ in Exchange Rule 6.4A serves to reduce the
potential for excess quoting because the OLPP limits the number of
options series eligible to be listed, which, according to the Exchange,
reduces the number of options series a market maker would be obligated
to quote.\15\ Second, the

Exchange states its view that Exchange Rule 6.37B Commentary .01, which
removes certain options series from market makers' continuous quoting
obligations, reduces the number of quote messages that the Exchange
sends to OPRA.\16\ The Exchange states that reliance on the OLPP, via
Exchange Rule 6.4A, and the refined market maker quoting obligations,
pursuant to Commentary .01 to Exchange Rule 6.37B, is sufficient as a
quote mitigation plan.\17\ Third, the Exchange states that both the
Exchange's systems capacity and OPRA's systems capacity are more than
sufficient to accommodate any additional increase in quote message
traffic that might be sent to OPRA as a result of the deletion of the
quote mitigation plan.\18\ The Exchange represents that it continually
assesses its capacity needs and ensures that the capacity that it
requests from OPRA is sufficient and compliant with the requirements
established in the OPRA Capacity Guidelines.\19\
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    \13\ See Notice, supra note 3, at 62984. In addition, the
Exchange proposes to amend paragraphs (b)(1) and (b)(2) of Exchange
Rule 6.86 to delete references to the ``Quote Mitigation Plan,''
which refer to the quote mitigation plan set forth in Commentary .03
to Exchange Rule 6.86. See id.
    \14\ See Amendment to Plan for the Purpose of Developing and
Implementing Procedures Designed to Facilitate the Listing and
Trading of Standardized Options Submitted Pursuant to Section
11A(a)(3)(B) of the Securities Exchange Act available at http://www.theocc.com/clearing/industry-services/olpp.jsp (providing for
the most current OLPP). See also Securities and Exchange Release No.
44521 (July 6, 2001), 66 FR 36809 (July 13, 2001) (order approving
the OLPP).
    \15\ See Notice, supra note 3, at 62983. See also Securities and
Exchange Release No. 61977 (April 23, 2010), 75 FR 22884 (April 30,
2010) (SR-NYSEArca-2010-30) (in which the Exchange adopted select
provisions of the OLPP into Exchange Rule 6.4A).
    \16\ Commentary .01 to Exchange Rule 6.37B provides that
Exchange market makers continuous quoting obligations do not apply
``to adjusted option series, and series with a time to expiration of
nine months or greater, for options on equities and Exchange Traded
Fund Shares, and series with a time to expiration of twelve months
or greater for Index options.'' See also Notice, supra note 3, at
62984.
    \17\ See Notice, supra note 3, at 62984. The Exchange states its
view that limiting the number of options series listed on the
Exchange is preferable to suppressing the quotes of inactive options
series, as required under current Exchange Rule 6.86, because all
quotes sent by Exchange market makers are actionable even if not
displayed. See id.
    \18\ See Notice, supra note 3, at 62984.
    \19\ See id.
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    The Exchange further represents that it has in place certain
measures that act as additional safeguards against excessive
quoting.\20\ According to the Exchange, these safeguards include
monitoring and alerting market makers disseminating an unusual number
of quotes, a business plan designed to ensure that new listings are
actively traded,\21\ and a ratio threshold fee designed to encourage
the efficient use of orders.\22\
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    \20\ See id.
    \21\ See id. (citing to NYSE Arca Options Listing Policy
Statement, available at, http://www.nyse.com/pdfs/TraderNoticeArcaLOPSChanges092713.pdf).
    \22\ See id. (citing to NYSE Arca Options Fee Schedule,
available at, https://www.theice.com/publicdocs/nyse/markets/arca-options/NYSE_Arca_Options_Fee_Schedule.pdf).
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III. Summary of Comment Letters

    NYSE Arca submitted three comment letters in which it: (1) Supports
its position that Rule 6.4A of the OLPP together with the current
exceptions from a market maker's continuous quoting obligations for
certain options series would be sufficient as a quote mitigation plan;
\23\ (2) provides additional information to support its argument that
relying on the OLPP requirements in Rule 6.4A would suffice as a quote
mitigation plan; and (3) supports its argument that the Exchange and
OPRA have sufficient capacity to accommodate an increase in quote
message traffic resulting from elimination of the Exchange's quote
mitigation plan.\24\
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    \23\ See NYSE Arca Letter 1, supra note 6, at 1. See also NYSE
Arca Letter 2, supra note 8, at 1-2. The Exchange also supplies an
actual illustration of how the Rule results in quote mitigation. Id.
at 2.
    \24\ See NYSE Arca Letter 1, supra note 6.
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    The Exchange states that at least one other options exchange
primarily relies on the OLPP requirements in Rule 6.4A as a quote
mitigation plan.\25\ The Exchange explains that the OLPP Rule 6.4A puts
a restriction on the range of permissible strike prices based on the
price of the underlying security.\26\ The Exchange states its view that
reliance on the OLPP requirements is consistent with the Act and would
sufficiently limit the number of options series listed on the
Exchange.\27\
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    \25\ See NYSE Arca Letter 1, supra note 6, at 1-2. The comment
letter further notes that the Miami International Securities
Exchange, LLC (``MIAX'') stated in a response to comments on a
proposed rule change relating to increasing the number of options
series associated with Short Term Options Series that it was not
using a quote mitigation strategy, but instead employs a listing
policy that mitigates the number of classes and series listed on its
exchange by not listing illiquid options classes and products that
are not already trading on another market. (See NYSE Arca Letter 1,
supra note 6, at 2 (citing Letter to Elizabeth Murphy, Secretary,
U.S. Securities Exchange Commission, from Brian O'Neill, VP and
Senior Counsel, MIAX, dated June 2, 2013, available at http://www.sec.gov/comments/sr-miax-2013-23/miax201323-2.pdf.)). NYSE Arca
notes that it has a similar policy designed to help ensure that the
Exchange does not list options that generate quote volume without
providing the benefit of trading volume. See NYSEArca Letter 1,
supra note 6, at 2 and 4.
    \26\ See NYSE Arca Letter 2, supra note 8, at 1-2.
    \27\ See NYSE Arca Letter 1, supra note 6, at 1.
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    Next, the Exchange argues that eliminating its quote mitigation
plan is consistent with the Act because refined market maker quoting
obligations currently in place on the Exchange, which exempt certain
options series from market makers' continuous quoting obligations,
reduce the universe of series in which a market maker is required to
quote.\28\ The Exchange notes that these refined obligations were
adopted following implementation of its quote mitigation plan,\29\ and
believes that as a result, market makers do not need to quote in
approximately 5,000 options series, thereby decreasing quote message
traffic.\30\
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    \28\ See NYSE Arca Letter 1, supra note 6, at 1.
    \29\ See id.
    \30\ Id.
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    The Exchange argues that it has sufficient capacity to handle
quoting in all options series, including quotes in those series that
are inactive and not currently disseminated pursuant to the Exchange's
quote mitigation plan.\31\ In support of this statement, the Exchange
explains that although quotes in inactive series do not generate quote
traffic from NYSE Arca, the Exchange must nonetheless receive and
process quotes in such series, and perform additional processing to
suppress quotes in these series to comply with their quote mitigation
plan.\32\ The Exchange states that because it is already processing the
quotes it suppresses, it is ``confident that its own systems capacity
is more than sufficient to accommodate any increase in the traffic that
might be sent to OPRA.'' \33\ The Exchange notes that in its requests
for capacity submitted to the Independent Systems Capacity Advisory
(``ISCA'') (which OPRA uses to ensure overall aggregate capacity), NYSE
Arca assumes that (1) options series that are inactive at that time
could become active in the future, thereby increasing overall message
traffic sent to OPRA, and (2) that all options series that it lists,
including those without continuous quoting obligations for market
makers, will generate message traffic to OPRA.\34\ The Exchange further
states its belief that OPRA also would be able to accommodate any
increase in quote message traffic resulting from NYSE Arca no longer
suppressing quotes in inactive series.\35\
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    \31\ See NYSE Arca Letter 1, supra note 6, at 2.
    \32\ See NYSE Arca Letter 1, supra note 6, at 2.
    \33\ See NYSE Arca Letter 1, supra note 6, at 2-3.
    \34\ Id.
    \35\ See NYSE Arca Letter 1, supra note 6, at 2.
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    The Exchange further argues that eliminating its quote mitigation
plan is consistent with the Act because the Exchange actively monitors
market maker quoting activity and alerts market makers to heightened
levels of quoting activity, which could result from systems issues or
an incorrectly set parameter that generates erroneous quotes.\36\ The
Exchange notes that NYSE Arca's requests for capacity to the ISCA are
adjusted to account for ``some level'' of erroneous quoting.\37\
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    \36\ See NYSE Arca Letter 1, supra note 6, at 3-4.
    \37\ Id. at 4.
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    The Exchange also states that the landscape regarding quote message
traffic and capacity has changed since the adoption of the Penny
Pilot.\38\ NYSE

Arca represents that in January 2007, 15% of quotes received by the
Exchange were not sent to OPRA, compared to 5.8% as of April 2015.\39\
The Exchange also states that at the time the Penny Pilot was adopted,
OPRA's total capacity was set to 359,000 messages per seconds
(``mps''), and that by July 2015, OPRA's peak capacity is anticipated
to be 42,100,000 mps.\40\ In addition, the Exchange states, based on
peak message traffic figures on the Exchange for one day in May
2015,\41\ that if the quotes the Exchange suppressed on that day had
been sent to OPRA, industry quotes published by OPRA would have
increased by no more than 1%, and that this would use less than .05% of
total OPRA capacity.\42\
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    \38\ See NYSE Arca Letter 3, supra note 8, at 2.
    \39\ Id.
    \40\ Id.
    \41\ Id. The Exchange represents that as of Friday May 29, 2015,
peak message traffic for the Exchange was 1,707,820 mps, measured
over a 100 millisecond period. Based on this, the Exchange believes
that if the highest percentage of quotes suppressed by the Exchange
during this period (8.3%) had been published at the same rate as
quotes the Exchange had not suppressed during this time, the mps
rate would instead be 1,849,569. Id.
    \42\ Id.
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IV. Discussion

    Under Section 19(b)(2)(C) of the Act, the Commission shall approve
a proposed rule change of a self-regulatory organization if the
Commission finds that such proposed rule change is consistent with the
requirements of the Act, and the rules and regulations thereunder that
are applicable to such organization.\43\ The Commission shall
disapprove a proposed rule change if it does not make such a
finding.\44\ Rule 700(b)(3) of the Commission's Rules of Practice
states that the ``burden to demonstrate that a proposed rule change is
consistent with the [Act] . . . is on the self-regulatory organization
that proposed the rule change'' and that a ``mere assertion that the
proposed rule change is consistent with those requirements . . . is not
sufficient.'' \45\
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    \43\ 15 U.S.C. 78s(b)(2)(C)(i).
    \44\ 15 U.S.C. 78s(b)(2)(C)(i); see also 17 CFR 201.700(b)(3)
and note 45 infra, and accompanying text.
    \45\ 17 CFR 201.700(b)(3). The description of a proposed rule
change, its purpose and operation, its effect, and a legal analysis
of its consistency with applicable requirements must all be
sufficiently detailed and specific to support an affirmative
Commission finding. See id. Any failure of a self-regulatory
organization to provide the information solicited by Form 19b-4 may
result in the Commission not having a sufficient basis to make an
affirmative finding that a proposed rule change is consistent with
the Act and the rules and regulations issued thereunder that are
applicable to the self-regulatory organization. Id.
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    After careful consideration, the Commission cannot find that the
proposed rule change is consistent with the requirements of the Act and
the rules and regulations thereunder applicable to a national
securities exchange.\46\ In particular, the Commission cannot find that
the proposed rule change is consistent with Section 6(b)(5) of the
Act,\47\ which requires that the rules of a national securities
exchange be designed, among other things, to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and to protect
investors and the public interest.
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    \46\ In disapproving the proposed rule change, the Commission
has considered the proposed rule's impact on efficiency,
competition, and capital formation. 15 U.S.C. 78c(f).
    \47\ 15 U.S.C. 78f(b)(5).
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    In conjunction with the adoption of the Penny Pilot in 2007 that
permitted the options exchanges to quote certain options series in one
and five cent increments, and in response to a letter sent by the then
Chairman of the Commission,\48\ the options exchanges, including NYSE
Arca, adopted quote mitigation plans.\49\ The Commission emphasized the
importance of options exchanges' quote mitigation strategies in
connection with the Penny Pilot in its orders approving an expansion of
the Penny Pilot in 2007. In those orders, the Commission noted that
options exchanges participating in the Penny Pilot would continue to
use quote mitigation strategies.\50\ Likewise, when the Commission
approved NYSE Arca's proposal to again expand the Penny Pilot in 2009,
the Commission reiterated that the Exchange would retain and continue
to employ its quote mitigation strategy.\51\
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    \48\ In a letter sent to the options exchanges on June 7, 2006,
encouraging the implementation of a penny pilot program, then
Chairman Cox noted that quoting options in pennies would increase
quote message traffic, which the systems of exchanges, market data
vendors, and securities firms must be able to manage, and for that
reason, quoting options in pennies would begin in a small number of
options. To assist in managing the anticipated increase in quote
traffic, Chairman Cox asked that options exchanges include a
workable quote mitigation strategy in any proposal to allow quoting
in pennies. See Commission Press Release 2006-91, ``SEC Chairman Cox
Urges Options Exchanges to Start Limited Penny Quoting,'' June 7,
2006.
    \49\ See Quote Mitigation Approval Order, supra note 9.
    \50\ See Securities Exchange Act Release No. 56568, 72 FR 56422
(October 3, 2007) (SR-NYSEArca-2007-88); 56567 (September 27, 2007),
72 FR 56307 (October 3, 2007) (Amex-2007-96); 56565 (September 27,
2007), 72 FR 56403 (October 3, 2007) (CBOE-2007-98); 56564
(September 27, 2007), 72 FR 56412 (October 3, 2007) (ISE-2007-74);
56563 (September 27, 2007), 72 FR 56429 (October 3, 2007) (Phlx-
2007-62); and 56566 (September 27, 2007), 72 FR 56400 (October 3,
2007) (BSE-2007-40).
    \51\ See Securities Exchange Act Release No. 60711, 74 FR 49419
(September 28, 2009) (SR-NYSEArca-2009-44). See also Securities
Exchange Act Nos. 60373 (October 23, 2009), 74 FR 56675 (November 2,
2009) (Phlx-2009-91); 60864 (October 22, 2009), 74 FR 55876 (October
29, 2009) (CBOE-2009-076); 60865 (October 22, 2009), 74 FR 55880
((ISE-2009-82); 60886 (October 27, 2009), 74 56897 (November 3,
2009); 60874 (October 23, 2009), 74 FR 56682 (November 2, 2009)
(NASDAQ-2009-091); and 61106 (December 3, 2009), 74 FR 65193
(December 9, 2009) (NYSEAmex-2009-74).
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    When considering whether the Exchange's quote mitigation plan was
consistent with the Act, the Commission relied upon supporting data and
analysis provided by the Exchange.\52\ In its proposal to provide for a
quote mitigation plan, NYSE Arca represented that the quote mitigation
plan was intended to reduce the number of quotations generated by the
Exchange for all option issues traded at NYSE Arca, not just options on
issues included in the Penny Pilot, and that the Exchange anticipated
the quote mitigation plan would reduce quote message traffic by 20-
30%.\53\ In approving NYSE Arca's proposal in February 2007, the
Commission stated that because it expected that the Penny Pilot would
increase quote message traffic, the Commission also approved the
Exchange's proposal to reduce the number of quotations it
disseminates.\54\
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    \52\ See Quote Mitigation Approval Order, supra note 9.
    \53\ See Quote Mitigation Approval Order, supra note 9, at 4760.
    \54\ See Quote Mitigation Approval Order, supra note 9, at 4760.
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    In 2007 and 2009, the Commission approved rule changes submitted by
NYSE Arca expanding the number of classes eligible to participate in
the Penny Pilot.\55\ In so approving, the Commission reviewed data
provided by the options exchanges, including data relating to OPRA's
capacity to process the increase in quotes resulting from the expansion
of the Penny Pilot and the effectiveness of its quote mitigation
plan.\56\ In approving each of these expansions, the Commission noted
that

it relied, in part, on the Exchange's representation that it would
continue to use its quote mitigation plan to suppress certain quotation
traffic that would otherwise be sent to OPRA.\57\ The Commission also
relied on data provided by the options exchanges to support
representations that capacity was not a concern, and that the quote
mitigation plans in place were successful.\58\ For example, NYSE Arca,
provided the Commission with data supporting its claim that the
Exchange's quote mitigation plan mitigated 12.1 million quotes a day or
13 percent of NYSE Arca's daily quote traffic sent to OPRA.\59\ In
another report, NYSE Arca provided data on OPRA's then-current
capacity, future capacity, and peaks in message traffic sent to OPRA to
support its argument that quote traffic increases were manageable.\60\
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    \55\ The Commission approved thirteen classes to participate in
the Penny Pilot on January 23, 2007. See Quote Mitigation Approval
Order, supra note 9. On September 27, 2007, the Commission approved
an expansion of Penny Pilot, which raised the number of
participating classes to 63. See Securities Exchange Act Release No.
56568, 72 FR 56422 (October 3, 2007) (SR-NYSEArca-2007-88) (``Order
Approving Expansion 1''). On September 23, 2009, the Commission
approved another expansion, raising the number of participating
classes to 363. See Securities Exchange Act Release No. 60711, 74 FR
49419 (September 28, 2009) (SR-NYSEArca-2009-44) (``Order Approving
Extension 2'').
    \56\ See Order Approving Expansion 1 and Order Approving
Expansion 2, supra note 55 at 56423-24 and 49422-23, respectively.
    \57\ Id.
    \58\ Id. For example, in Order Approving Expansion 2, the
Commission noted that on June 2, 2009, the sustained message traffic
peak of 852,350 messages per second reported by OPRA is still well
below the OPRA's current message per second capacity limit of
2,050,000. See Order Approving Expansion 2, supra note 55 at 49422.
    \59\ See Understanding Economic and Capacity Impacts of the
Penny Pilot, NYSE ARCA Options, May 31, 2007.
    \60\ See The Options Penny Pilot, NYSE ARCA, received August 18,
2009.
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    As noted above, the Exchange believes that its quote mitigation
plan is no longer necessary because: (1) the Exchange has incorporated
select provisions of the OLPP in Exchange Rule 6.4A, which the Exchange
believes limits the number of series eligible to be traded; (2) current
Exchange Rule 6.37B Commentary .01 removes certain options series from
market makers' continuous quoting obligations, which the Exchange
believes reduces the number of quote messages that the Exchange sends
to OPRA; and (3) both the system capacity at the Exchange and at OPRA
are more than sufficient to accommodate any additional increase in
quote message traffic that might be disseminated if NYSE Arca's quote
mitigation plan is eliminated. However, the Exchange has not provided
the Commission with sufficient data regarding potential changes in
quote message traffic if the Commission approves its proposal.
    For example, the Exchange does not provide sufficient data about
the number of quote messages that its quote mitigation plan currently
suppresses relative to capacity at OPRA. Specifically, the Exchange
provided data from May 29, 2015 that purports to show that if all quote
messages suppressed by the Exchange were instead sent to OPRA, industry
quotes published by OPRA would increase by no more than 1%. The
Exchange asserts that this increase would use less than .05% of total
OPRA capacity across all option exchanges. Importantly, however, the
Exchange does not provide data that shows the excess capacity between
peak quote message traffic sent from all options exchanges and OPRA's
Peak Capacity for the May 29, 2015 sample. If peak quote message
traffic sent to OPRA by all the options exchanges was at or approached
OPRA's Peak Capacity, then potentially even a small increase in quote
message traffic from one exchange could result in OPRA's capacity being
exceeded.
    In addition, the Exchange does not provide data or analysis
demonstrating the potential impact the Exchange's proposal would have
on market participants who consume the OPRA and/or the Exchange's
quotation message feeds.\61\ Nor does the Exchange quantify the number
or percentage of quote messages that have been and would continue to be
suppressed as a result of the implementation of Exchange Rule 6.4A \62\
or current Exchange Rule 6.37B Commentary .01.\63\ The Commission notes
that the Exchange's comment letter stated its belief that as a result
of refined quoting obligations, market makers do not need to quote in
approximately 5,000 options series, and that this has resulted in a
decrease in message traffic,\64\ however, the Exchange did not provide
data to quantify the decrease in message traffic for the Commission to
consider. Absent sufficient information and data of this type, the
Commission is not able to adequately evaluate the Exchange's assertion
that ``reliance on the OLPP, via Rule 6.4A, together with the refined
market maker obligation, pursuant to Commentary .01 to Rule 6.37B, is
sufficient as a quote mitigation strategy and obviates the need for
Rule 6.86.'' \65\ Other information or data may also be helpful for the
Commission's consideration of the proposed rule change. Without
sufficient supporting data and analysis, the Commission is not able to
adequately assess the impact of NYSE Arca's proposed rule change to
eliminate its quote mitigation plan and make a determination that the
proposed rule change is consistent with the Act.
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    \61\ See Order Approving Expansion 2, supra note 55 at 49421
(The Commission noted that several commenters expressed concerns
that increased quotation message traffic imposes costs on exchanges
and other market participants to process and store the additional
quotations and they questioned the ability of market systems to
effectively handle the increased quote message traffic that would
likely result from the expansion of the Penny Pilot to 363 classes.
In approving the expansion, the Commission noted that NYSE Arca
``had adopted and [would] continue to utilize quote mitigate
strategies that should continue to mitigate the expected increase in
quotation traffic.'') Id. at 49422-23.
    \62\ In 2009, the OLPP Participants, including NYSE Arca,
represented that the new strategy they were proposing as Amendment
No. 3 to the OLPP (which was subsequently codified as Rule 6.4A on
the Exchange's rulebook) would be ``an additional strategy'' to be
used to address overall capacity concerns in the industry. See
Securities Exchange Act Release No. 60365 (July 22, 2009), 74 FR
37266 (July 28, 2009) (Notice of Filing of Amendment No. 3 to the
OLPP proposing uniform standards to the range of options series
exercise prices available for trading). Although it was anticipated
that the exercise price limitation bands set forth in Amendment No.
3 would also have the attendant benefit of further reducing
increases in quote message traffic, nothing in the language in the
exchanges' OLPP filings suggest that the methodology set forth in
Amendment No. 3 (to limit the number of options series available for
trading) was intended to replace the options exchanges' quote
mitigation strategies, nor does the language in those filings
suggest that it was contemplated at the time that the options
exchanges would eliminate their existing exchange-specific quote
mitigation strategies.
    \63\ While NYSE Arca stated in its proposed rule change to adopt
Exchange Rule 6.37B Commentary .01 that the burden of continuous
quoting in adjusted series is counter to efforts to mitigate the
number of quotes collected and disseminated, and that the proposal
would further the goal of quote mitigation, this was not a basis
given for the proposed rule change, and the Exchange did not provide
any data on what the impact of the proposal on quote volume would
be. See Securities Exchange Act Release No. 65210 (August 26, 2011),
76 FR 54516 (September 1, 2011) (SR-NYSEArca-2011-59). Additionally,
the Commission did not consider the potential impact of the proposal
on quote mitigation as a basis for approving the elimination of
continuous quoting obligation in certain series. See Securities
Exchange Act Release No. 65573 (October 14, 2011), 76 FR 65305
(October 20, 2011) (SR-NYSEArca-2011-59).
    \64\ See NYSE Arca Letter 1, supra note 6, at 3.
    \65\ See Notice, supra note 3, at 62984.
---------------------------------------------------------------------------

    Given the limitations in the data provided by NYSE Arca, as
described above, the Commission cannot find a sufficient basis to
conclude that the proposal is consistent with the Act. The Commission
notes, however, that the Penny Pilots for each of the options exchanges
are anticipated to be extended for an additional year, until June 30,
2016. In connection with any future requests to extend the Penny Pilots
after that date, the Commission intends to require each exchange to
submit detailed information to allow for permanent approval or
disapproval by the Commission. Such proposals should, among other
things, provide detailed data and analysis to support the efficacy, or
any proposed modification or elimination, of any exchanges' quote
mitigation plan.\66\
---------------------------------------------------------------------------

    \66\ In reviewing the quote mitigation plans in this manner, the
Commission would be able to consider the market-wide impact of any
proposed modification to or elimination of an exchange's quote
mitigation practices.
---------------------------------------------------------------------------

    For the foregoing reasons, the Commission does not believe that
NYSE

Arca has met its burden to demonstrate that the proposed rule change is
consistent with the requirements of the Act and the rules and
regulations thereunder, including that the rules of an exchange be
designed to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, to protect investors and the
public interest.\67\
---------------------------------------------------------------------------

    \67\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Conclusion

    For the reasons set forth above, the Commission does not believe
that NYSE Arca has met its burden to demonstrate that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange,
and in particular, Section 6(b)(5) of the Act.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NYSEArca-2014-117) be, and hereby is,
disapproved.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\68\
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    \68\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-15341 Filed 6-22-15; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 31 (Tuesday, February 17, 2015)]
[Notices]
[Pages 8373-8374]
[FR Doc No: 2015-03099]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31454; File No. 812-14326]

Corsair Opportunity Fund, et al.; Notice of Application

February 10, 2015.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment
Company Act of 1940 (the ``Act'') for an exemption from sections 18(c)
and 18(i) of the Act and for an order pursuant to section 17(d) of the
Act and rule 17d-1 under the Act.

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Summary of Application:  Applicants request an order to permit certain
registered closed-end management investment companies to issue multiple
classes of shares (``Classes'') with varying sales loads and to impose
asset-based service and/or distribution fees and contingent deferred
sales loads (``CDSCs'').

Applicants:  Corsair Opportunity Fund (``Fund'') and Corsair Capital
Management, L.P. (``Adviser'').

Filing Dates:  The application was filed on June 30, 2014, and amended
on October 21, 2014, January 8, 2015, January 30, 2015, and February 9,
2015.

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 March 9, 2015 and should be accompanied by proof of
service on the applicants, in the form of an affidavit, or, for
lawyers, a certificate of service. Pursuant to Rule 0-5 under the Act,
hearing requests should state the nature of the writer's interest, any
facts bearing upon the desirability of a hearing on the matter, the
reasons 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: Brent J. Fields, Secretary, U.S. Securities and Exchange
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants:
Corsair Opportunity Fund and Corsair Capital Management, L.P. 366
Madison Avenue, 12th Floor, New York, NY 10017.

FOR FURTHER INFORMATION CONTACT: Stephan N. Packs, Senior Counsel, at
(202) 551-6853, or Nadya Roytblat, Assistant Chief Counsel, at (202)
551-6825 (Division of Investment Management, Chief Counsel's Office).

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

Applicants' Representations

    1. The Fund is a continuously offered non-diversified, closed-end
management investment company registered under the Act and organized as
a Delaware statutory trust. The Adviser is registered as an investment
adviser under the Investment Advisers Act of 1940 and serves as
investment adviser to the Fund.
    2. The Fund continuously offers its shares pursuant to its
currently effective registration statement under the Securities Act of
1933. The Fund's shares are not listed on any securities exchange and
do not trade on an over-the-counter system such as Nasdaq. Applicants
do not expect that any secondary market will develop for the Fund's
shares.
    3. The Fund currently offers, and intends to continue to offer, a
single Class of shares (``Initial Class'') at net asset value per share
(``NAV''). The Initial Class is not currently subject to any sales load
or distribution and/or service fees. The Fund proposes to offer
additional Classes of shares that will adopt a distribution and service
plan in compliance with rules 12b-1 and 17d-3 under the Act as if such
rules applied to closed-end management investment companies
(``Distribution and Service Plan''). Additional Classes may be subject
to a sales load, a distribution fee (``Distribution Fee''), and/or a
service fee (``Service Fee''), pursuant to the Distribution and Service
Plan.\1\
---------------------------------------------------------------------------

    \1\ The Fund will not impose an ``early withdrawal charge'' or
``repurchase fee'' on shareholders who purchase and tender their
shares.
---------------------------------------------------------------------------

    4. In order to provide a limited degree of liquidity to
shareholders, the Fund may from time to time offer to repurchase shares
at their then-current NAV in accordance with rule 13e-4 under the 1934
Act pursuant to written tenders by shareholders. Repurchases of the
Fund's shares are made at such times, in such amounts and on such terms
as may be determined by the board of trustees of the Fund (``Board'')
in its sole discretion. The Adviser ordinarily recommends that the
Board authorize the Fund to offer to repurchase shares from
shareholders quarterly.
    5. Applicants request that the order also apply to any
continuously-offered registered closed-end management investment
company existing now or in the future for which the Adviser, or any
entity controlling, controlled by, or under common control with the
Adviser acts as investment adviser or principal underwriter, and which
provides periodic liquidity with respect to its shares pursuant to rule
13e-4 under the 1934 Act (collectively with the Fund, the
``Funds'').\2\
---------------------------------------------------------------------------

    \2\ Any Fund relying on this relief will do so in a manner
consistent with the terms and conditions of the application.
Applicants represent that each investment company presently
intending to rely on the requested order is listed as an applicant.
---------------------------------------------------------------------------

    6. Applicants represent that any asset-based Distribution and
Service fees will comply with the provisions of rule 2830(d) of the
Conduct Rules of the National Association of Securities Dealers, Inc.
(``NASD Conduct Rule 2830'').\3\ Applicants also represent that the
Fund will disclose in its prospectus, the fees, expenses and other
characteristics of each Class offered for sale by the prospectus, as is
required for open-end, multiple class funds under Form N-1A. As if it
were an open-end management investment company, the Fund will disclose
fund expenses in shareholder reports, and disclose in its prospectus
any arrangements that result in breakpoints in, or elimination of,
sales loads.\4\ Applicants will also comply with any requirements that
may be adopted by the Commission or FINRA regarding disclosure at the
point of sale and in transaction confirmations about the costs and
conflicts of interest arising out of the distribution of open-end
investment company shares, and regarding prospectus disclosure of sales
loads and revenue sharing arrangements as if those requirements applied
to the

Fund and any distributor of shares of the Fund.\5\
---------------------------------------------------------------------------

    \3\ Any references to NASD Conduct Rule 2830 include any
successor or replacement Financial Industry Regulatory Authority
Rule to NASD Conduct Rule 2830.
    \4\ See Shareholder Reports and Quarterly Portfolio Disclosure
of Registered Management Investment Companies, Investment Company
Act Release No. 26372 (Feb. 27, 2004) (adopting release); and
Disclosure of Breakpoint Discounts by Mutual Funds, Investment
Company Act Release No. 26464 (June 7, 2004) (adopting release).
    \5\ See Confirmation Requirements and Point of Sale Disclosure
Requirements for Transactions in Certain Mutual Funds and Other
Securities, and Other Confirmation Requirement Amendments, and
Amendments to the Registration Form for Mutual Funds, Investment
Company Act Release No. 26341 (Jan. 29, 2004) (proposing release).
---------------------------------------------------------------------------

    7. The Fund will allocate all expenses incurred by it among the
various Classes based on net assets of the Fund attributable to each
such Class, except that the NAV and expenses of each Class will reflect
the expenses associated with the Distribution and Service Plan of that
Class (if any), and any other incremental expenses of that Class
(including transfer agency fees, if any). Expenses of the Fund
allocated to a particular Class of the Fund's shares will be borne on a
pro rata basis by each outstanding share of that Class. Applicants
state that the Fund will comply with the provisions of rule 18f-3 under
the Act as if it were an open-end investment company.
    8. In the event the Funds impose a CDSC, applicants will comply
with the provisions of rule 6c-10 under the Act, as if that rule
applied to closed-end management investment companies. With respect to
any waiver of, scheduled variation in, or elimination of the CDSC, the
Fund will comply with the requirements of rule 22d-1 under the Act as
if the Fund were an open-end investment company.

Applicants' Legal Analysis

Multiple Classes of Shares

    1. Section 18(c) of the Act provides, in relevant part, that a
closed-end investment company may not issue or sell any senior security
if, immediately thereafter, the company has outstanding more than one
class of senior security. Applicants state that the creation of
multiple Classes of the Fund may be prohibited by section 18(c).
    2. Section 18(i) of the Act provides that each share of stock
issued by a registered management investment company will be a voting
stock and have equal voting rights with every other outstanding voting
stock. Applicants state that permitting multiple Classes of the Fund
may violate section 18(i) of the Act because each Class would be
entitled to exclusive voting rights with respect to matters solely
related to that Class.
    3. Section 6(c) 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 the Act, or from any
rule under the Act, if and to the extent 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. Applicants request an exemption under section
6(c) from sections 18(c) and 18(i) to permit the Fund to issue multiple
Classes.
    4. Applicants submit that the proposed allocation of expenses and
voting rights among multiple classes is equitable and will not
discriminate against any group or class of shareholders. Applicants
submit that the proposed system would permit the Fund to facilitate the
distribution of Classes through diverse distribution channels and would
provide investors with a broader choice of shareholder options.
Applicants assert that the proposed closed-end investment company
multiple class structure does not raise the concerns underlying section
18 of the Act to any greater degree than open-end investment companies'
multiple class structures that are permitted by rule 18f-3 under the
Act. Applicants state the Fund will comply with the provisions of rule
18f-3 as if it were an open-end investment company.

CDSCs

    5. Applicants believe that the requested relief meets the standards
of section 6(c) of the Act. Rule 6c-10 under the Act permits open-end
investment companies to impose CDSCs, subject to certain conditions.
Applicants state that the Fund does not anticipate imposing CDSCs and
would only do so in compliance with rule 6c-10 under the Act as if that
rule were applied to closed-end investment companies. The Fund also
will make all required disclosures in accordance with the requirements
of Form N-1A concerning CDSCs. Applicants further state that, in the
event the Fund imposes CDSCs, the Fund will apply the CDSCs (and any
waivers or scheduled variations of the CDSCs) uniformly to all
shareholders in a given class and consistently with the requirements of
rule 22d-1 under the Act.

Asset-Based Service and/or Distribution Fees

    6. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
an affiliated person of a registered investment company or an
affiliated person of such person, acting as principal, from
participating in or effecting any transaction in which such registered
company is a joint or a joint and several participant unless the
Commission issues an order permitting the transaction. In reviewing
applications submitted under section 17(d) and rule 17d-1, the
Commission considers whether the participation of the investment
company in a joint enterprise or joint arrangement is consistent with
the provisions, policies and purposes of the Act, and the extent to
which the participation is on a basis different from or less
advantageous than that of other participants.
    7. Rule 17d-3 under the Act provides an exemption from section
17(d) and rule 17d-1 to permit open-end investment companies to enter
into distribution arrangements pursuant to rule 12b-1 under the Act.
Applicants request an order under section 17(d) and rule 17d-1 under
the Act to permit the Fund to impose Distribution Fees and/or Service
Fees. Applicants have agreed to comply with rules 12b-1 and 17d-3 as if
those rules applied to closed-end investment companies.

Applicants' Condition

    Applicants agree that any order granting the requested relief will
be subject to the following condition:
    Applicants will comply with the provisions of rules 6c-10, 12b-1,
17d-3, 18f-3 and 22d-1 under the Act, as amended from time to time or
replaced, as if those rules applied to closed-end management investment
companies, and will comply with the NASD Conduct Rule 2830, as amended
from time to time, as if that rule applied to all closed-end management
investment companies.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Brent J. Fields,
Secretary.
[FR Doc. 2015-03099 Filed 2-13-15; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 176 (Tuesday, September 11, 2012)]
[Notices]
[Pages 55880-55884]
[FR Doc No: 2012-22244]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30195; File No. 812-13998]

Prudential Short Duration High Yield Fund, Inc. and Prudential
Investments LLC; Notice of Application

September 5, 2012.
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 certain
registered closed-end investment companies to make periodic
distributions of long-term capital gains with respect to their
outstanding common stock as frequently as monthly in any one taxable
year, and as frequently as distributions are specified by or in
accordance with the terms of any outstanding preferred stock that such
investment companies may issue.

Applicants: Prudential Short Duration High Yield Fund, Inc. (``Initial
Fund'') and Prudential Investments LLC (``PI'' or the ``Adviser'').

Filing Dates: The application was filed on January 13, 2012, and
amended on July 10, 2012.

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 October 1, 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: Elizabeth M. Murphy, Secretary, Securities and Exchange
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants,
Gateway Center 3, 100 Mulberry Street, 4th Floor, Newark, NJ 07102,
Contact: Kathryn Quirk, Esq. and Claudia DiGiacomo, Esq.

FOR FURTHER INFORMATION CONTACT: Jaea F. Hahn, Senior Counsel, at (202)
551-6870, or Jennifer L. Sawin, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

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

Applicants' Representations

    1. The Initial Fund is a closed-end management investment company
registered under the Act and is organized as a Maryland corporation.\1\

The investment objective of the Initial Fund is to provide a high level
of current income by investing primarily in a diversified portfolio of
high yield fixed income instruments that are rated below investment
grade or, if unrated, are considered to be of comparable quality. The
Initial Fund's shares of common stock are currently listed on the New
York Stock Exchange, a national securities exchange as defined in
section 2(a)(26) of the Act. The Initial Fund and any Future Fund may
issue preferred stock. Applicants believe that closed-end fund
investors may prefer an investment vehicle that provides regular
current income through fixed distribution policies.
---------------------------------------------------------------------------

    \1\ Applicants request that any order issued granting the relief
requested in the application also apply to any registered closed-end
investment company currently advised or to be advised in the future
by PI (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 PI (such entities,
together with PI, the ``Advisers'') that decides in the future to
rely on the requested relief (``Future Fund'' and together with the
Initial Fund, the ``Funds''). The Initial Fund and PI are referred
to collectively as ``Applicants''. Any Future Funds that may rely on
the order in the future will comply with the terms and conditions of
the application. All existing registered closed-end investment
companies currently intending to rely on the order have been named
as Applicants. A successor in interest is limited solely to an
entity that results from a reorganization into another jurisdiction
or a change in the type of business organization.
---------------------------------------------------------------------------

    2. PI, a New York limited liability company, is, and all other
Advisers will be, registered under the Investment Advisers Act of 1940,
as amended (``Advisers Act''), or exempt from such registration. PI
acts as investment adviser to the Initial Fund and has responsibility
for the implementation of the Initial Fund's overall investment
strategy. PI entered into a subadvisory agreement with Prudential
Investment Management Inc. (the ``Subadviser''), an affiliate of PI,
for the day-to-day management of the Initial Fund's portfolio. The
Subadviser is, and any subadviser to any Future Fund will be,
registered as an investment adviser under the Advisers Act or exempt
from such registration.
    3. Applicants state that, prior to a Fund's implementing a
distribution policy (``Distribution Policy'') in reliance on the order,
the board of directors (the ``Board'') of the Fund, including a
majority of the directors who are not ``interested persons,'' of such
Fund as defined in section 2(a)(19) of the Act (the ``Independent
Directors''), shall have requested, and the Adviser shall have
provided, such information as is reasonably necessary to make an
informed determination of whether the Board should adopt a proposed
Distribution Policy. In particular, the Board and the Independent
Directors will review information regarding the purpose and terms of a
proposed Distribution Policy; the likely effects of such policy on such
Fund's long-term total return (in relation to market price and its net
asset value (``NAV'') per share of common stock); the expected
relationship between such Fund's distribution rate on its common stock
under the policy and the Fund's total return (in relation to NAV per
share); whether the rate of distribution would exceed such Fund's
expected total return in relation to its NAV per share; and any
foreseeable material effects of such policy on such Fund's long-term
total return (in relation to market price and NAV per share). The
Independent Directors shall also have considered what conflicts of
interest the Adviser and the affiliated persons of the Adviser and each
such Fund might have with respect to the adoption or implementation of
the Distribution Policy. Applicants state that, only after considering
such information shall the Board, including the Independent Directors,
of a Fund approve a Distribution Policy and in connection with such
approval shall have determined that the Distribution Policy is
consistent with a Fund's investment objectives and in the best
interests of the holders of a Fund's common stock.
    4. Applicants state that the purpose of a Distribution Policy,
generally, would be to permit a Fund to distribute over the course of
each year, through periodic distributions in relatively equal amounts
(plus any required special distributions), an amount closely
approximating the total taxable income of such Fund during such year
and, if so determined by its Board, all or a portion of returns of
capital paid by portfolio companies to such Fund during the year. Under
the Distribution Policy of a Fund, such Fund would distribute to its
respective common stockholders a fixed monthly percentage of the market
price of such Fund's common stock at a particular point in time or a
fixed monthly percentage of NAV at a particular time or a fixed monthly
amount, any of which may be adjusted from time to time. It is
anticipated that under a Distribution Policy, the minimum annual
distribution rate with respect to such Fund's common stock would be
independent of the Fund's performance during any particular period but
would be expected to correlate with the Fund's performance over time.
Except for extraordinary distributions and potential increases or
decreases in the final dividend periods in light of a Fund's
performance for an entire calendar year and to enable a Fund to comply
with the distribution requirements of Subchapter M of the Internal
Revenue Code (``Code'') for the calendar year, each distribution on the
Fund's common stock would be at the stated rate then in effect.
    5. Applicants state that prior to the implementation of a
Distribution Policy for a Fund, the Board shall have adopted policies
and procedures under rule 38a-1 under the Act that: (i) are reasonably
designed to ensure that all notices required to be sent to the Fund's
stockholders pursuant to section 19(a) of the Act, rule 19a-1
thereunder and condition 4 below (each a ``19(a) Notice'') include the
disclosure required by rule 19a-1 under the Act and by condition 2(a)
below, and that all other written communications by the Fund or its
agents regarding distributions under the Distribution Policy include
the disclosure required by condition 3(a) below; and (ii) require the
Fund to keep records that demonstrate its compliance with all of the
conditions of the order and that are necessary for such Fund to form
the basis for, or demonstrate the calculation of, the amounts disclosed
in its 19(a) Notices.

Applicants' Legal Analysis

    1. Section 19(b) of the Act generally makes it unlawful for any
registered investment company to make long-term capital gains
distributions more than once every twelve months. Rule 19b-1 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 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, in relevant part, that the
Commission may exempt any person or transaction from any provision of
the Act 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.
    3. Applicants state that the one of the concerns leading to the
enactment of section 19(b) and adoption of rule 19b-1 was that
stockholders might be unable to distinguish 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 distributions (or the confirmation of the
reinvestment thereof) estimated to be sourced in part from capital
gains or capital be accompanied by a separate statement showing the
sources of the distribution

(e.g., estimated net income, net short-term capital gains, net long-
term capital gains and/or return of capital). Applicants state that
similar information is included in the Funds' annual reports to
stockholders and on the Internal Revenue Service Form 1099 DIV, which
is sent to each common and preferred stockholder who received
distributions during a particular year.
    4. Applicants further state that each of the Funds will make the
additional disclosures required by the conditions set forth below, and
each of them will adopt 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
state that the information required by section 19(a), rule 19a-1, the
Distribution Policy, the policies and procedures under rule 38a-1 noted
above, and the conditions listed below will help ensure that each
Fund's stockholders are provided sufficient information to understand
that their periodic distributions are not tied to a Fund's net
investment income (which for this purpose is the Fund's taxable income
other than from capital gains) and realized capital gains to date, and
may not represent yield or investment return. Accordingly, Applicants
assert that continuing to subject the Funds 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 Funds, which do not continuously distribute shares.
According to Applicants, if the underlying concern extends to secondary
market purchases of shares of closed-end funds that are subject to a
large upcoming capital gains dividend, adoption of a periodic
distribution plan actually helps minimize the concern by avoiding,
through periodic distributions, any buildup of large end-of-the-year
distributions.
    6. Applicants also note that the common stock of closed-end funds
often trades in the marketplace at a discount to its NAV. Applicants
believe that this discount may be reduced if the Funds are permitted to
pay relatively frequent dividends on their common stock at a consistent
rate, whether or not those dividends contain an element of long-term
capital gain.
    7. Applicants assert that the application of rule 19b-1 to a
Distribution Policy actually could have an inappropriate influence on
portfolio management decisions. Applicants state that, in the absence
of an exemption from rule 19b-1, the adoption of a periodic
distribution plan imposes pressure on management (i) 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 (ii) 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 assert that by limiting the
number of long-term capital gain dividends that a Fund may make with
respect to any one year, rule 19b-1 may prevent the normal and
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 force 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 would be available. To distribute all of a Fund's long-term
capital gains within the limits in rule 19b-1, a Fund may be required
to make total distributions in excess of the annual amount called for
by its periodic distribution plan, or to retain and pay taxes on the
excess amount. Applicants assert that the requested order would
minimize these anomalous 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.
---------------------------------------------------------------------------

    \2\ Returns of capital as used in the application means return
of capital for financial accounting purposes and not for tax
accounting purposes.
---------------------------------------------------------------------------

    9. Applicants state that Revenue Ruling 89-81 under the Code
requires that a fund that seeks to qualify as a regulated investment
company under the Code and that has both common stock and preferred
stock outstanding designate the types of income, e.g., investment
income and capital gains, in the same proportion as the total
distributions distributed to each class for the tax year. To satisfy
the proportionate designation requirements of Revenue Ruling 89-81,
whenever a fund has realized a long-term capital gain with respect to a
given tax year, the fund must designate the required proportionate
share of such capital gain to be included in common and preferred stock
dividends. Applicants state that although rule 19b-1 allows a fund some
flexibility with respect to the frequency of capital gains
distributions, a fund might use all of the exceptions available under
the rule for a tax year and still need to distribute additional capital
gains allocated to the preferred stock to comply with Revenue Ruling
89-81.
    10. Applicants assert that the potential abuses addressed by
section 19(b) and rule 19b-1 do not arise with respect to preferred
stock issued by a closed-end fund. Applicants assert that such
distributions are either 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 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 specified periodic dividend at a fixed rate or the
rate determined by the market, and, like a debt security, is priced
based upon its liquidation preference, dividend rate, credit quality,
and frequency of payment. Applicants state that investors buy preferred
stock for the purpose of receiving payments at the frequency bargained
for, and any application of rule 19b-1 to preferred stock would be
contrary to the expectation of investors.
    12. Applicants request an order under section 6(c) of the Act
granting an exemption from the provisions of section 19(b) of the Act
and rule 19b-1 thereunder to permit each Fund 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 in respect of its common
stock and as often as specified by or determined in accordance with the
terms thereof in respect of its preferred stock.

Applicants' Conditions

    Applicants agree that, with respect to each Fund seeking to rely on
the order, the order 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 Adviser have complied with the conditions of the order, and (ii) a
material compliance matter (as defined in rule 38a-1(e)(2) under the
Act) has occurred with respect to such conditions; and (b) review the
adequacy of the policies and procedures adopted by the Board no less
frequently than annually.

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 section19(a)
and rule 19a-1:
    (i) will provide, in a tabular or graphical format:
    (1) the amount of the distribution, on a per share of common stock
basis, together with the amounts of such distribution amount, on a per
share of common stock 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 of common stock basis, together with the amounts of such
cumulative amount, on a per share of common stock 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 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
---------------------------------------------------------------------------

    \3\ The disclosure in 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 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
Distribution 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 will 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; and
    (c) The Fund will post prominently a statement on its (or the
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 stock 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 stock; 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) The 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 Fund's 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,\4\ expressed as a percentage of NAV
per share as of such date, is no more than 1 percentage point greater
than the Fund's average annual total return for the 5-year period
ending on such date; \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
amendments to rule 19b-1 that provide 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.
Kevin M. O'Neill,
 Deputy Secretary.
[FR Doc. 2012-22244 Filed 9-10-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: December 8, 2006 (Volume 71, Number 236)]
[Notices]
[Page 71162-71163]
[DOCID:fr08de06-81]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Notice of Application for Non-Project Use of Project Lands and
Waters and Soliciting Comments, Motions To Intervene, and Protests

December 1, 2006.
    a. Type of Application: Application for non-project use of project
lands and waters.
    b. Project Number: P-2055-039.
    c. Date Filed: November 17, 2006.
    d. Applicant: Idaho Power Company.
    e. Name of Project: C.J. Strike Hydroelectric Project.
    f. Location: The project is located on the Snake River in Owyhee
County, Idaho.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. Sec.  Sec. 791
(a) 825(r) and Sec.  Sec. 799 and 801.
    h. Applicant Contact: Mr. L. Lewis Wardle, Idaho Power Company,
1221 West Idaho Street, Boise, ID 83707, phone:<PHONE_NUMBER>.
    i. FERC Contact: Any questions on this notice should be addressed
to Chris Yeakel at<PHONE_NUMBER>, or e-mail address:
<EMAIL_ADDRESS>
    j. Deadline for filing comments and or motions: December 29, 2006.
    k. Description of Application: The licensee proposes to issue a
special use permit to Mr. Dale Hooley for the use of less than one acre
of land within the project boundary of the C.J. Strike Project for the
construction, maintenance, and use of an irrigation pumping station and
buried pipeline, and the necessary ingress and egress. The proposed
pumping station will consist of: (1) A concrete box 8 feet square by 13
feet deep with a metal grate opening; (2) a pump station cover; (3) an
inlet canal 35 feet in length by 8

feet wide and 13 feet deep; (4) an underground irrigation pipeline
approximately 750 feet long; and (5) the necessary ingress and egress.
The proposed pumping station will divert 1.96 million gallons of water
per day.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street, NE, Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov using the

``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field (p-2055) to access the document. You
may also register online at http://www.ferc.gov/docs-filing/esubscription.asp
 to be notified via e-mail of new filings and

issuances related to this or other pending projects. For assistance,
call 1-866-208-3676 or e-mail<EMAIL_ADDRESS>for TTY, call
(202) 502-8659. A copy is also available for inspection and
reproduction at the address in item (h) above.
    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, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments 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 comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Filing and Service of Responsive Documents--Any filings must
bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS
FOR TERMS AND CONDITIONS'', ``PROTEST'', OR ``MOTION TO INTERVENE'', as
applicable, and the Project Number of the particular application to
which the filing refers (p-2055-039). All documents (original and eight
copies) should be filed with: Magalie R. Salas, Secretary, Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426. A copy of any motion to intervene must also be served upon each
representative of the Applicant specified in the particular
application.
    p. Agency Comments--Federal, state, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.
    q. Comments, protests and interventions 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

under the ``e-Filing'' link.

Magalie R. Salas,
Secretary.
 [FR Doc. E6-20823 Filed 12-7-06; 8:45 am]

BILLING CODE 6717-01-P


children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and

explain why the planned regulation is preferable to other potentially
effective and reasonably feasible alternatives considered by the
Agency.
    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it proposes to partially
approve and partially disapprove a state rule implementing a Federal
program and to disapprove a redesignation request.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.

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

    Dated: November 18, 2009.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E9-28692 Filed 11-30-09; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: August 28, 2008 (Volume 73, Number 168)]
[Notices]
[Page 50833]
[DOCID:fr28au08-83]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[FEMA-1763-DR]

Iowa; Amendment No. 17 to Notice of a Major Disaster Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: This notice amends the notice of a major disaster declaration
for the State of Iowa (FEMA-1763-DR), dated May 27, 2008, and related
determinations.

Effective Date:  August 13, 2008.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the incident
period for this disaster is closed effective August 13, 2008.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households In
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050 Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs, 97.036,
Disaster Grants--Public Assistance (Presidentially Declared
Disasters); 97.039, Hazard Mitigation Grant.)

R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-19984 Filed 8-27-08; 8:45 am]

BILLING CODE 9110-10-P


[Federal Register: January 19, 2006 (Volume 71, Number 12)]
[Notices]
[Page 3074]
[DOCID:fr19ja06-67]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL06-45-000]

El Paso Electric Company, Complainant, v. Tucson Electric Power
Company, Respondent; Notice of Complaint

January 11, 2006.
    Take notice that on January 10, 2006, El Paso Electric Company
(EPE) filed a formal Complaint against Tucson Electric Power Company
(TEP) pursuant to 18 CFR 385.206 of the Commission regulations,
alleging that TEP has asserted its intent to transmit power generated
at the Luna generating facility on EPE's transmission system from the
Luna substation near Deming, New Mexico to interconnection points at
Springerville and/or Greenlee, Arizona, but that TEP does not have, and
has failed to acquire, contractual right to do so. EPE seeks interim
relief to assure that testing of the Luna generating facility will not
be adversely affected. TEP states that subject to the grant of such
relief, it is the only party affected by the complaint.
    EPE states that copies of the complaint were served on the contacts
for TEP.
    Any person desiring 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. The Respondent's
answer and all interventions, or protests must be filed on or before
the comment date. The Respondent's answer, motions to intervene, and
protests must be served on the Complainants.
    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 on January 30, 2006.

Magalie R. Salas,
Secretary.
 [FR Doc. E6-550 Filed 1-18-06; 8:45 am]

BILLING CODE 6717-01-P