[Federal Register: November 21, 2006 (Volume 71, Number 224)]
[Notices]
[Page 67404-67408]
[DOCID:fr21no06-75]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 27553; 812-13264]

HealthShares, Inc., et al.; Notice of Application

November 16, 2006.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from sections
2(a)(32), 5(a)(1), 22(d), and 24(d) of the Act and rule 22c-1 under the
Act, and under sections 6(c) and 17(b) of the Act for an exemption from
sections 17(a)(1) and 17(a)(2) of the Act.

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    Summary of Application: Applicants request an order granting relief
to permit (a) an open-end management investment company, the series of
which consist of the component securities of certain equity securities
indexes, to issue shares (``Shares'') that can be redeemed only in
large aggregations (``Creation Units''), (b) secondary market
transactions in Shares to occur at negotiated prices on a national
securities exchange, as defined in section 2(a)(26) of the Act
(``Exchange''), (c) dealers to sell Shares to purchasers in the
secondary market unaccompanied by a prospectus when prospectus delivery
is not required by the Securities Act of 1933 (``Securities Act''), and
(d) certain affiliated persons of the series to deposit securities
into, and receive securities from, the series in connection with the
purchase and redemption of Creation Units.
    Applicants: HealthShares, Inc. (``Corporation''), Ferghana-
Wellspring LLC (``Index Creator''), and X-Shares Advisors, LLC
(``Advisor'').

DATES: Filing Dates: The application was filed on March 1, 2006, and
amended on August 23, 2006 and November 15, 2006.
    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 December 6, 2006, and should be accompanied by proof of
service on applicants, in the form of an affidavit, or for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090; Applicants, 420 Lexington
Avenue, Suite 2550, New York, NY 10170.

FOR FURTHER INFORMATION CONTACT: Shannon Conaty, Senior Counsel, at
(202) 551-6827, or Mary Kay Frech, 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 for a fee at the
Public Reference Desk, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington DC 20549-0102 (telephone<PHONE_NUMBER>).

Applicants' Representations

    1. The Corporation, a Maryland corporation, is registered under the
Act as an open-end management investment company. Applicants currently
intend to introduce 20 series (``Initial Funds'') of the Corporation
and may establish additional series in the future (``Future Funds,''
and together with the Initial Funds, ``Funds''). The Advisor, a wholly-
owned subsidiary of the Index Creator, is registered as an investment
adviser under the Investment Advisers Act of 1940 (``Advisers Act'')
and will serve as the investment adviser to each Fund.\1\ The Advisor
expects to enter into a sub-advisory agreement with BNY Investment
Advisors to serve as sub-adviser (``Sub-Advisor'') to the Funds. The
Sub-Advisor is not otherwise an affiliated person of the Advisor or the
Index Creator and is registered as an investment adviser under the
Advisers Act. ALPS Distributors, Inc., a broker-

dealer registered under the Securities Exchange Act of 1934 (``Exchange
Act''), will serve as principal underwriter for the Funds (the
``Distributor'').
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    \1\ Neither the Index Creator nor the Advisor nor any affiliated
person of the Index Creator or the Advisor is or will be registered
as a broker or dealer.
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    2. Each Fund seeks to invest in a portfolio of equity securities
(``Portfolio Securities'') that substantially replicate a particular
benchmark (each an ``Index'' or ``Underlying Index'' and collectively,
the ``Indices'' or ``Underlying Indices''). The Underlying Indices are
based on a proprietary, rules-based methodology developed by the Index
Creator to define certain segments of the healthcare, life sciences and
biotechnology sectors of both domestic and international markets
(``Methodology'').\2\ The Methodology, including the rules which govern
the inclusion and weighting of securities in the Underlying Indices,
will be publicly available, including on either the Advisor's or the
Funds' website (``Web site''), along with the identities and weightings
of the component securities of each Index (``Component Securities'')
and the Portfolio Securities of each Fund.\3\ While the Index Creator
may change the rules of the Methodology in the future, the Index
Creator presently does not intend to do so. Any change to the
Methodology would not take effect until the Index Creator had given the
public at least 60 days advance notice of the change and had given
reasonable notice of the change to the Index Administrator/Calculation
Agent. The ``Index Administrator/Calculation Agent'' is the entity
that, pursuant to an agreement with the Index Creator, is solely
responsible for all Index calculation, maintenance, dissemination and
reconstitution activities.\4\ The Administrator/Calculation Agent is
not, and will not be, an affiliated person, or an affiliated person of
an affiliated person, of the Funds, Advisor, Sub-Advisor, Index
Creator, any promoter of the Funds, or the Distributor of the Funds.\5\
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    \2\ Each Underlying Index is developed using an investment
approach known as ``Vertical Investing,'' which seeks to categorize
companies within a particular healthcare, life sciences or
biotechnology index by focusing on each company's business
activities with regard to the diagnosis of diseases, the development
of drugs, treatments, therapies and delivery systems, and the
development of enabling/research tools and technologies for use in
these sectors.
    \3\ The Index Creator, as owner of the Indices and all
intellectual property related to them, intends to license the
Indices to the Advisor for use in connection with the Funds. The
license will specifically state that the Advisor must provide the
use of the Indices to the Funds at no cost.
    \4\ The Index Administrator/Calculation Agent will determine the
number, type and weight of securities that comprise each Index and
perform, or cause to be performed, all other calculations that are
necessary to determine the proper constitution of each Index. The
Index Administrator/Calculation Agent will not disclose any
information about any Index's constitution to the Index Creator, the
Advisor, the Sub-Advisor or the Funds prior to the publication of
such information on the Website. However, the Index Administrator/
Calculation Agent may disclose such information solely to certain
employees of the Index Creator and its affiliates who will monitor
the Methodology and the Indices (``Index Personnel'') and to the
chief compliance officer of the Funds, the Advisor and the Sub-
Advisor for purposes of monitoring compliance with the code of
ethics of these entities.
    \5\ Standard & Poor's (``S&P'') will serve as Index
Administrator/Calculation Agent for the Underlying Indices.
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    3. Applicants state that the Index Personnel will not have any
responsibility for the management of the Funds. In addition, applicants
have adopted policies and procedures that, among other things, are
designed to limit or prohibit communications between the Index
Personnel and other employees of the Index Creator and the Advisor or
any Sub-Advisor (``Firewalls''). Among other things, the Firewalls
prohibit the Index Personnel from disseminating non-public information
about the Indices, including potential changes to the Methodology, to,
among others, the employees of the Advisor or any Sub-Advisor
responsible for managing the Funds (``advisory personnel''). The
Firewalls also prohibit the Advisor's and Sub-Advisor's advisory
personnel from sharing any non-public information about the management
of the Funds with the personnel responsible for creating, monitoring,
calculating, maintaining or disseminating the Indices (i.e., Index
Personnel and the Index Administrator/Calculation Agent). Further, the
Advisor and the Sub-Advisor have adopted, pursuant to rule 206(4)-7
under the Advisers Act, written policies and procedures designed to
prevent violations of the Advisers Act and the rules under the Advisers
Act. The Advisor, the Sub-Advisor and the Distributor each have adopted
or will adopt a Code of Ethics as required under rule 17j-1 under the
Act, which contains provisions reasonably necessary to prevent Access
Persons (as defined in rule 17j-1) from engaging in any conduct
prohibited in rule 17j-1. In addition, the Advisor and the Sub-Advisor
have adopted or will adopt policies and procedures to detect and
prevent insider trading as required under section 204A of the Advisers
Act, which are reasonably designed, taking into account the nature of
their business, to prevent the misuse in violation of the Advisers Act,
Exchange Act, or rules and regulations under the Advisers Act and
Exchange Act, of material non-public information.
    4. Any Future Fund will be advised by the Advisor or an entity
controlled by or under common control with the Advisor. Applicants will
not offer a Future Fund unless either they have requested and received
with respect to such Future Fund exemptive relief from the Commission
or a no-action position from the staff of the Commission, or the Future
Fund will be listed on an Exchange without the need for a filing under
rule 19b-4 under the Exchange Act. In addition, any Future Fund that
relies on any order granted pursuant to this application will comply
with the terms and conditions of the application, including the
following: (a) The Methodology will be publicly available, including on
the Website; (b) once the rules of the Methodology are established,
applicants may change them only after giving the public at least 60
days advance notice of any change; (c) applicants have Firewalls; (d)
the Index Administrator/Calculation Agent will not be an affiliated
person, or an affiliated person of an affiliated person, of the Funds,
Advisor, Sub-Advisor, Index Creator, Distributor or promoter of the
Funds; and (e) the Indexes will be reconstituted on a fixed periodic
basis no more frequently than quarterly.
    5. The investment objective of each Fund will be to provide
investment results that track the performance, before fees and
expenses, of a particular Underlying Index. The intra-day value of each
Index will be disseminated every 15 seconds throughout the trading day
over the Consolidated Tape on each day that the Funds are open, which
includes any day that the Funds are required by to be open under
section 22(e) of the Act (``Business Day''). In seeking to achieve its
investment objective, each Fund will utilize either a replication or a
representative sampling strategy. A Fund using a replication strategy
generally will invest in the Component Securities in its Underlying
Index in approximately the same weightings as in the Underlying Index.
In certain circumstances, such as when a Component Security is illiquid
or there are practical difficulties or substantial costs involved in
holding every security in an Underlying Index, a Fund may use a
representative sampling strategy pursuant to which it will invest in
some but not all of the Component Securities.\6\ Applicants

anticipate that a Fund that utilizes a representative sampling strategy
will not track the performance of its Underlying Index with the same
degree of accuracy as an investment vehicle that invests in every
Component Security of the Underlying Index in the same weighting as the
Underlying Index. Applicants expect that each Fund will have a tracking
error relative to the performance of its Underlying Index of less than
5%.
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    \6\ Each Fund will invest at least 90% of its assets in
Component Securities. Each Fund may invest up to 10% of its assets
in securities that are not Component Securities, but which the
Advisor or Sub-Advisor believes will help the Fund track its
Underlying Index, including futures, options and swap contracts,
cash and cash equivalents. Certain Funds may invest in American
Depositary Receipts or Global Depositary Receipts (collectively,
``Depositary Receipts'') based on securities of foreign companies in
the Underlying Index. A Fund would treat Depositary Receipts that
represent Component Securities of its Underlying Index as Component
Securities for purposes of any requirements related to the
percentage of Component Securities held by a Fund.
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    6. Shares of the Funds will be sold at a price of between $40 and
$250 per Share in Creation Units of 50,000 Shares. All orders to
purchase Creation Units must be placed with the Distributor by or
through an ``Authorized Participant,'' an entity that has entered into
an agreement with the Distributor and that is either (a) A participant
in the continuous net settlement system of the National Securities
Clearing Corporation, a clearing agency registered with the Commission
or (b) a participant in the Depository Trust Company (``DTC,'' and such
participant, ``DTC Participant''). Creation Units generally will be
issued in exchange for an in-kind deposit of securities and cash,
though a Fund may sell Creation Units on a cash-only basis in limited
circumstances. An investor wishing to purchase a Creation Unit from a
Fund will have to transfer to the Fund a ``Creation Deposit''
consisting of: (a) A portfolio of securities that has been selected by
the Advisor or Sub-Advisor to correspond generally to the performance
of the relevant Index (``Deposit Securities''); and (b) a cash payment
to equalize any differences between the market value of the Deposit
Securities per Creation Unit and the net asset value (``NAV'') per
Creation Unit (``Cash Requirement'').\7\ An investor purchasing a
Creation Unit from a Fund will be charged a fee (``Transaction Fee'')
to prevent the dilution of the interests of the remaining shareholders
resulting from the Fund incurring costs in connection with the purchase
of the Creation Units.\8\ Each Fund will disclose the maximum
Transaction Fee in its prospectus (``Prospectus'') and the method of
calculating the Transaction Fee in its statement of additional
information (``SAI''). No sales charges for purchases of Creation Units
of any Fund are contemplated. The Corporation is authorized to
implement a plan under rule 12b-1 under the Act for each of the Funds,
which will be disclosed in the Fund's Prospectus, if implemented.
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    \7\ On each Business Day, prior to the opening of trading on the
Exchange, the Advisor or Sub-Advisor will make available the list of
the names and the required number of shares of each Deposit Security
required for the Creation Deposit for the Fund. That Creation
Deposit will apply to all purchases of Creation Units until a new
Creation Deposit for the Fund is announced. Each Fund reserves the
right to permit or require the substitution of an amount of cash in
lieu of depositing some or all of the Deposit Securities. The
Exchange will disseminate every 15 seconds throughout the trading
day over the Consolidated Tape an amount representing, on a per
Share basis, the sum of the current value of the Deposit Securities
and the estimated Cash Requirement.
    \8\ When a Fund permits a purchaser to substitute cash for
Deposit Securities, the purchaser may be assessed a higher
Transaction Fee to offset the brokerage and other transaction costs
incurred by the Fund to purchase the requisite Deposit Securities.
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    7. Orders to purchase Creation Units of a Fund will be placed with
the Distributor who will be responsible for transmitting orders to the
Funds. The Distributor will maintain a record of Creation Unit
purchases. The Distributor will be responsible for issuing
confirmations of acceptance and furnishing Prospectuses to purchasers
of Creation Units.
    8. Persons purchasing Creation Units from a Fund may hold the
Shares or sell some or all of them in the secondary market. Shares of
the Funds will be listed on an Exchange and traded in the secondary
market in the same manner as other equity securities. It is expected
that one or more members of the Exchange will act as a specialist
(``Specialist''), and maintain a market on the Exchange for the Shares.
The price of Shares traded on an Exchange will be based on a current
bid/offer market. Purchases and sales of Shares in the secondary market
will be subject to customary brokerage commissions and charges.
    9. Applicants expect that purchasers of Creation Units will include
institutional investors and arbitrageurs. The Specialist, in providing
for a fair and orderly secondary market for Shares, also may purchase
Creation Units for use in its market-making activities. Applicants
expect that secondary market purchasers of Shares will include both
institutional and retail investors.\9\ Applicants expect that the price
at which the Shares trade will be disciplined by arbitrage
opportunities created by the ability to continually purchase or redeem
Creation Units at their NAV, which should ensure that the Shares will
not trade at a material discount or premium in relation to their NAV.
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    \9\ Shares will be registered in book-entry form only. DTC or
its nominee will be the registered owner of all outstanding Shares.
DTC or DTC Participants will maintain records reflecting the
beneficial owners of Shares.
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    10. Shares will not be individually redeemable. Shares will only be
redeemable in Creation Units from a Fund. To redeem, an investor will
have to accumulate enough Shares to constitute a Creation Unit.
Redemption orders must be placed by or through an Authorized
Participant. An investor redeeming a Creation Unit generally will
receive (a) A portfolio of securities designated to be delivered for
Creation Unit redemptions on the date that the request for redemption
is submitted (``Redemption Securities''), and (b) a ``Cash Redemption
Payment,'' consisting of an amount calculated in the same manner as the
Cash Requirement. An investor may receive the cash equivalent of a
Redemption Security in certain circumstances, such as if the investor
is constrained from effecting transactions in the security by
regulation or policy. A redeeming investor will pay a Transaction Fee,
which is calculated in the same manner as a Transaction Fee payable in
connection with purchases of Creation Units.
    11. Applicants state that neither the Corporation nor any Fund will
be marketed or otherwise held out as a traditional open-end investment
company or mutual fund. Rather, applicants state that each Fund will be
marketed as an ``exchange-traded fund,'' ``investment company,''
``fund,'' or ``trust.'' All marketing materials that refer to
redeemability or describe the method of obtaining, buying or selling
Shares will prominently disclose that Shares are not individually
redeemable and that Shares may be acquired or redeemed from the Fund in
Creation Units only. The same type of disclosure will be provided in
the Prospectus, SAI, shareholder reports and investor educational
materials issued or circulated in connection with Shares. The Funds
will provide copies of their annual and semi-annual shareholder reports
to DTC Participants for distribution to beneficial owners of Shares.

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act
granting an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 24(d)
of the Act and rule 22c-1 Under the Act, and under sections 6(c) and
17(b) of the Act granting an exemption from sections 17(a)(1) and
17(a)(2) of the Act.

    2. Section 6(c) of the Act provides that the Commission may exempt
any person, security or transaction, or any class of persons,
securities or transactions, from any provision of the Act, if and to
the extent that such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Section 17(b) of the Act authorizes the Commission to exempt a proposed
transaction from section 17(a) if evidence establishes that the terms
of the transaction, including the consideration to be paid or received,
are reasonable and fair and do not involve overreaching on the part of
any person concerned, and the proposed transaction is consistent with
the policies of the registered investment company and the general
provisions of the Act.

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

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

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

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

Section 24(d) of the Act

    7. Section 24(d) of the Act provides, in relevant part, that the
prospectus delivery exemption provided to dealer transactions by
section 4(3) of the Securities Act does not apply to any transaction in
a redeemable security issued by an open-end investment company.
Applicants request an exemption from section 24(d) to permit dealers
selling Shares to rely on the prospectus delivery exemption provided by
section 4(3) of the Securities Act.\10\
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    \10\ Applicants state that they do not seek relief from the
prospectus delivery requirement for non-secondary market
transactions, such as purchases of Shares from the Funds or an
underwriter. Applicants state that the Prospectus will caution
persons purchasing Creation Units that some activities on their
part, depending on the circumstances, may result in their being
deemed statutory underwriters and subject them to the prospectus
delivery and liability provisions of the Securities Act. For
example, a broker-dealer firm and/or its client may be deemed a
statutory underwriter if it takes Creation Units after placing an
order with the Distributor, breaks them down into the constituent
Shares and sells them directly to its customers, or if it chooses to
couple the creation of new Shares with an active selling effort
involving solicitation of secondary market demand for Shares. The
Prospectus will state that whether a person is an underwriter
depends upon all the facts and circumstances pertaining to that
person's activities. The Prospectus also will state that dealers who
are not ``underwriters'' but are participating in a distribution (as
contrasted to ordinary secondary market trading transactions), and
thus dealing with Shares that are part of an ``unsold allotment''
within the meaning of section 4(3)(C) of the Securities Act, would
be unable to take advantage of the prospectus delivery exemption
provided by section 4(3) of the Securities Act.
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    8. Applicants state that Shares will be listed on an Exchange and
will be traded in a manner similar to other equity securities,
including the shares of closed-end investment companies. Applicants
note that dealers selling shares of closed-end investment companies in
the secondary market generally are not required to deliver a prospectus
to the purchaser. Applicants contend that Shares, as a listed security,
merit a reduction in the compliance costs and regulatory burdens
resulting from the imposition of prospectus delivery obligations in the
secondary market. Because Shares will be exchange-listed, prospective
investors will have access to several types of market information about
Shares. Applicants state that information regarding market price and
volume will be continually available on a real-time basis throughout
the day on computer screens of brokers and other electronic services.
The previous day's closing price and volume information for Shares also
will be published daily in the financial section of newspapers. In
addition, the Web site will include, for each Fund, the prior Business
Day's NAV, the mid-point of the bid-ask spread for a Share at the time
of calculation of the NAV (``Bid/Ask Price''), and a calculation of the
premium or discount of the closing price against such Bid/Ask Price, as
well as data in chart format displaying the frequency distribution of
discounts and premiums of the Bid/Ask Price against the NAV, within
appropriate ranges, for each of the four previous calendar quarters.
    9. Investors also will receive a short product description
(``Product Description''), describing a Fund and its

Shares. Applicants state that, while not intended as a substitute for a
Prospectus, the Product Description will contain information about
Shares that is tailored to meet the needs of investors purchasing
Shares in the secondary market. The Product Description will
prominently disclose that the Indexes are created and sponsored by an
affiliated person of the Advisor.

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

    10. Section 17(a) of the Act generally prohibits an affiliated
person of a registered investment company, or an affiliated person of
such a person, from selling any security to or purchasing any security
from the company. Section 2(a)(3) of the Act defines ``affiliated
person'' to include any person directly or indirectly owning,
controlling or holding with power to vote 5% or more of the outstanding
voting securities of the other person, and any person directly or
indirectly controlling, controlled by or under common control with the
other person. Section 2(a)(9) of the Act provides that a control
relationship will be presumed where one person owns more than 25% of
another person's voting securities.
    11. Applicants request an exemption from section 17(a) to the
extent necessary to permit (a) persons who are affiliated persons of a
Fund solely by virtue of holding with the power to vote 5% or more, or
more than 25%, of the Shares of a Fund (``First-Tier Affiliates'') and
(b) affiliated persons of First-Tier Affiliates who are not otherwise
affiliated with the Fund, and persons who are affiliated persons of a
Fund solely by virtue of holding with the power to vote 5% or more, or
more than 25%, of the outstanding voting securities of other registered
investment companies (or series thereof) advised by the Advisor
(``Second-Tier Affiliates'') to purchase and redeem Creation Units
through in-kind purchases and sales of securities. Applicants contend
that no useful purpose would be served by prohibiting the First- and
Second-Tier Affiliates from purchasing or redeeming Creation Units
through in-kind transactions. The deposit procedure for in-kind
purchases and the redemption procedure for in-kind redemptions will be
the same for all purchases and redemptions. Deposit Securities and
Redemption Securities will be valued in the same manner as the
Portfolio Securities. Therefore, applicants state, the in-kind
purchases and redemptions for which relief is requested will afford no
opportunity for the affiliated persons of a Fund, or the affiliated
persons of such affiliated persons, described above, to effect a
transaction detrimental to other holders of Shares. Applicants also
believe that these in-kind purchases and redemptions will not result in
self-dealing or overreaching of the Fund.

Applicants' Conditions

    Applicants agree that any order granting the requested order will
be subject to the following conditions:
    1. Applicants will not register a Future Fund by means of filing a
post-effective amendment to the Corporation's registration statement or
by any other means, unless either (a) Applicants have requested and
received with respect to such Future Fund, either exemptive relief from
the Commission or a no-action letter from the Division of Investment
Management of the Commission, or (b) the Future Fund will be listed on
an Exchange without the need for a filing pursuant to rule 19b-4 under
the Exchange Act.
    2. Each Fund's Prospectus and Product Description will clearly
disclose that, for purposes of the Act, Shares are issued by the Funds
and that the acquisition of Shares by investment companies is subject
to the restrictions of section 12(d)(1) of the Act, except as permitted
by an exemptive order that permits registered investment companies to
invest in a Fund beyond the limits of section 12(d)(1), subject to
certain terms and conditions, including that the registered investment
company enter into an agreement with the Fund regarding the terms of
the investment.
    3. As long as the Corporation operates in reliance on the requested
order, the Shares will be listed on an Exchange.
    4. Neither the Corporation nor any Fund will be advertised or
marketed as an open-end investment company or a mutual fund. Each
Fund's Prospectus will prominently disclose that Shares are not
individually redeemable shares and will disclose that the owners of
Shares may acquire those Shares from a Fund and tender those Shares for
redemption to a Fund in Creation Units only. Any advertising material
that describes the purchase or sale of Creation Units or refers to
redeemability will prominently disclose that Shares are not
individually redeemable and that owners of Shares may acquire those
Shares from a Fund and tender those Shares for redemption to a Fund in
Creation Units only.
    5. The Web site maintained for the Corporation, which is and will
be publicly accessible at no charge, will contain the following
information, on a per Share basis, for each Fund: (a) The prior
Business Day's NAV and the Bid/Ask Price and a calculation of the
premium or discount of the Bid/Ask Price at the time of calculation of
the NAV against such NAV; and (b) data in chart format displaying the
frequency distribution of discounts and premiums of the daily Bid/Ask
Price against the NAV, within appropriate ranges, for each of the four
previous calendar quarters. In addition, the Product Description for
each Fund will state that the website for the Fund has information
about the premiums and discounts at which the Shares have traded.
    6. The Prospectus and annual report for each Fund will also
include: (a) The information listed in condition 5(b), (i) in the case
of the Prospectus, for the most recently completed year (and the most
recently completed quarter or quarters, as applicable) and (ii) in the
case of the annual report, for the immediately preceding five years, as
applicable; and (b) the following data, calculated on a per Share basis
for one, five and ten year periods (or life of the Fund), (i) the
cumulative total return and the average annual total return based on
NAV and Bid/Ask Price, and (ii) the cumulative total return of the
relevant Underlying Index.
    7. Before a Fund may rely on the order, the Commission will have
approved, pursuant to rule 19b-4 under the Exchange Act, an Exchange
rule requiring Exchange members and member organizations effecting
transactions in Shares to deliver a Product Description to purchasers
of Shares.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Nancy M. Morris,
Secretary.
[FR Doc. E6-19666 Filed 11-20-06; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 65 (Friday, April 3, 2020)]
[Notices]
[Pages 19004-19007]
[FR Doc No: 2020-07052]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2020-0002; Internal Agency Docket No. FEMA-B-2023]

Changes in Flood Hazard Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice lists communities where the addition or
modification of Base Flood Elevations (BFEs), base flood depths,
Special Flood Hazard Area (SFHA) boundaries or zone designations, or
the regulatory floodway (hereinafter referred to as flood hazard
determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and
where applicable, in the supporting Flood Insurance Study (FIS)
reports, prepared by the Federal Emergency Management Agency (FEMA) for
each community, is appropriate because of new scientific or technical
data. The FIRM, and where applicable, portions of the FIS report, have
been revised to reflect these flood hazard determinations through
issuance of a Letter of Map Revision (LOMR), in accordance with Federal
Regulations. The LOMR will be used by insurance agents and others to
calculate appropriate flood insurance premium rates for new buildings
and the contents of those buildings. For rating purposes, the currently
effective community number is shown in the table below and must be used
for all new policies and renewals.

DATES: These flood hazard determinations will be finalized on the dates
listed in the table below and revise the FIRM panels and FIS report in
effect prior to this determination for the listed communities.
    From the date of the second publication of notification of these
changes in a newspaper of local circulation, any person has 90 days in
which to request through the community that the Deputy Associate
Administrator for Insurance and Mitigation reconsider the changes. The
flood hazard determination information may be changed during the 90-day
period.

ADDRESSES: The affected communities are listed in the table below.
Revised flood hazard information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA Map Service Center at https://msc.fema.gov for
comparison.
    Submit comments and/or appeals to the Chief Executive Officer of
the community as listed in the table below.

FOR FURTHER INFORMATION CONTACT: Rick Sacbibit, Chief, Engineering
Services Branch, Federal Insurance and Mitigation Administration, FEMA,
400 C Street SW, Washington, DC 20472,<PHONE_NUMBER>, or (email)
<EMAIL_ADDRESS>or visit the FEMA Mapping and Insurance
eXchange (FMIX) online at https://www.floodmaps.fema.gov/fhm/fmx_main.html.

SUPPLEMENTARY INFORMATION: The specific flood hazard determinations are
not described for each community in this notice. However, the online
location and local community map repository address where the flood
hazard determination information is available for inspection is
provided.
    Any request for reconsideration of flood hazard determinations must
be submitted to the Chief Executive Officer of the community as listed
in the table below.
    The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
    The FIRM and FIS report are the basis of the floodplain management
measures that the community is required either to adopt or to show
evidence of having in effect in order to qualify or remain qualified
for participation in the National Flood Insurance Program (NFIP).
    These flood hazard determinations, together with the floodplain
management criteria required by 44 CFR 60.3, are the minimum that are
required. They should not be construed to mean that the community must
change any existing ordinances that are more stringent in their
floodplain management requirements. The community may at any time enact
stricter requirements of its own or pursuant to policies established by
other Federal, State, or regional entities. The

flood hazard determinations are in accordance with 44 CFR 65.4.
    The affected communities are listed in the following table. Flood
hazard determination information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA Map Service Center at https://msc.fema.gov for
comparison.

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

Michael M. Grimm,
Assistant Administrator for Risk Management, Department of Homeland
Security, Federal Emergency Management Agency.

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                                                         Chief executive                         Online location of
        State and county           Location  and case      officer of         Community map        letter of map      Date of  modification   Community
                                          No.               community          repository             revision                                   No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Colorado: Broomfield............  City and County of   The Honorable       Engineering         https://msc.fema.gov/  May 6, 2020..........       085073
                                   Broomfield (19-08-   Patrick Quinn,      Department, 1       portal/advanceSearch.
                                   1004P).              Mayor, City and     DesCombes Drive,
                                                        County of           Broomfield, CO
                                                        Broomfield, 1       80020.
                                                        DesCombes Drive,
                                                        Broomfield, CO
                                                        80020.
Florida:
    Lee.........................  City of Sanibel,     The Honorable       Community Services  https://msc.fema.gov/  Jul. 15, 2020........       120402
                                   (19-04-6595P).       Kevin Ruane,        Department, 800     portal/advanceSearch.
                                                        Mayor, City of      Dunlop Road,
                                                        Sanibel, 800        Sanibel, FL 33957.
                                                        Dunlop Road,
                                                        Sanibel, FL 33957.
    Monroe......................  Unincorporated       The Honorable       Monroe County       https://msc.fema.gov/  Jul. 21, 2020........       125129
                                   areas of Monroe      Heather             Building            portal/advanceSearch.
                                   County, (20-04-      Carruthers,         Department, 2798
                                   1422P).              Mayor, Monroe       Overseas Highway,
                                                        County Board of     Suite 300,
                                                        Commissioners,      Marathon, FL
                                                        500 Whitehead       33050.
                                                        Street, Suite
                                                        102, Key West, FL
                                                        33040.
    Palm Beach..................  City of Westlake,    Mr. Kenneth G.      City Hall, 4001     https://msc.fema.gov/  Jul. 15, 2020........       120018
                                   (19-04-3409P).       Cassel, City of     Seminole Pratt,     portal/advanceSearch.
                                                        Westlake Manager,   Whitney Road,
                                                        4001 Seminole       Westlake, FL
                                                        Pratt, Whitney      33470.
                                                        Road, Westlake,
                                                        FL 33470.
Massachusetts:
    Plymouth....................  Town of Duxbury,     The Honorable       Planning            https://msc.fema.gov/  Jul. 6, 2020.........       250263
                                   (20-01-0284P).       David J. Madigan,   Department, 878     portal/advanceSearch.
                                                        Chairman, Town of   Tremont Street,
                                                        Duxbury Board of    Duxbury, MA 02332.
                                                        Selectmen, 878
                                                        Tremont Street,
                                                        Duxbury, MA 02332.
    Plymouth....................  Town of Marshfield,  The Honorable       Building            https://msc.fema.gov/  Jul. 6, 2020.........       250273
                                   (20-01-0284P).       Joseph E.           Department, 870     portal/advanceSearch.
                                                        Kelleher,           Moraine Street,
                                                        Chairman, Town of   Marshfield, MA
                                                        Marshfield Board    02050.
                                                        of Selectmen, 870
                                                        Moraine Street,
                                                        Marshfield, MA
                                                        02050.
North Carolina:
    Wake County.................  Town of Cary (19-04- The Honorable       Stormwater          http://msc.fema.gov/   Apr. 15, 2020........       370238
                                   3102P.               Harold              Services            portal/advanceSearch.
                                                        Weinbrecht,         Division, 316
                                                        Mayor, Town of      North Academy
                                                        Cary, P.O. Box      Street, Cary, NC
                                                        8005, Cary, NC      27513.
                                                        27512.
    Wake County.................  Town of              The Honorable T.J.  Planning            http://msc.fema.gov/   Apr. 15, 2020........       370242
                                   Morrisville, (19-    Cawley, Mayor,      Department, 260     portal/advanceSearch.
                                   04-3102P.            Town of             Town Hall Drive,
                                                        Morrisville, 100    Suite B,
                                                        Town Hall Drive,    Morrisville, NC
                                                        Morrisville, NC     27560.
                                                        27560.
Oklahoma:
    Tulsa.......................  City of Tulsa, (18-  The Honorable G.T.  Development         https://msc.fema.gov/  Jul. 9, 2020.........       405381
                                   06-3174P).           Bynum, Mayor,       Services            portal/advanceSearch.
                                                        City of Tulsa,      Department, 175
                                                        175 East 2nd        East 2nd Street,
                                                        Street, Tulsa, OK   Suite 450, Tulsa,
                                                        74103.              OK 74103.
    Tulsa.......................  City of Tulsa, (19-  The Honorable G.T.  Development         https://msc.fema.gov/  Jun. 25, 2020........       405381
                                   06-3205P).           Bynum, Mayor,       Services            portal/advanceSearch.
                                                        City of Tulsa,      Department, 175
                                                        175 East 2nd        East 2nd Street,
                                                        Street, Tulsa, OK   Suite 450, Tulsa,
                                                        74103.              OK 74103.
Pennsylvania:
    Lackawanna..................  Borough of Jermyn,   The Honorable       Borough Hall, 440   https://msc.fema.gov/  Aug. 6, 2020.........       420530
                                   (20-03-0330P).       Frank Kulick,       Jefferson Avenue,   portal/advanceSearch.
                                                        President,          Jermyn, PA 18433.
                                                        Borough of Jermyn
                                                        Council, 440
                                                        Jefferson Avenue,
                                                        Jermyn, PA 18433.
    Lackawanna..................  Borough of           The Honorable       Borough Hall, 739   https://msc.fema.gov/  Aug. 6, 2020.........       420532
                                   Mayfield, (20-03-    Alexander J.        Penn Avenue,        portal/advanceSearch.
                                   0330P).              Chelik, Mayor,      Mayfield, PA
                                                        Borough of          18433.
                                                        Mayfield, 739
                                                        Penn Avenue,
                                                        Mayfield, PA
                                                        18433.

    Lackawanna..................  Township of          The Honorable Paul  Township Hall, 103  https://msc.fema.gov/  Aug. 6, 2020.........       421750
                                   Carbondale, (20-03-  Figliomeni,         School Street,      portal/advanceSearch.
                                   0330P).              Chairman,           Childs, PA 18407.
                                                        Township of
                                                        Carbondale Board
                                                        of Supervisors,
                                                        103 School
                                                        Street, Childs,
                                                        PA 18407.
    Montgomery..................  Township of          The Honorable       Township Hall, 960  https://msc.fema.gov/  Jul. 6, 2020.........       420713
                                   Whitpain, (19-03-    Frederick R.        Wentz Road, Blue    portal/advanceSearch.
                                   1425P).              Conner, Jr.,        Bell, PA 19422.
                                                        Chairman,
                                                        Township of
                                                        Whitpain Board of
                                                        Supervisors, 960
                                                        Wentz Road, Blue
                                                        Bell, PA 19422.
Rhode Island:
    Washington..................  Town of Hopkinton,   The Honorable       Town Hall, 1 Town   https://msc.fema.gov/  Jul. 6, 2020.........       440028
                                   (20-01-0268P).       Frank Landolfi,     House Road,         portal/advanceSearch.
                                                        President, Town     Hopkinton, RI
                                                        of Hopkinton        02833.
                                                        Council, 1 Town
                                                        House Road,
                                                        Hopkinton, RI
                                                        02833.
    Washington..................  Town of Richmond,    The Honorable Rich  Town Hall, 5        https://msc.fema.gov/  Jul. 6, 2020.........       440031
                                   (20-01-0268P).       Nassaney,           Richmond            portal/advanceSearch.
                                                        President, Town     Townhouse Road,
                                                        of Richmond         Wyoming, RI 02898.
                                                        Council, 5
                                                        Richmond
                                                        Townhouse Road,
                                                        Wyoming, RI 02898.
Tennessee:
    Shelby......................  Town of              The Honorable Stan  Department of       https://msc.fema.gov/  May 8, 2020..........       470263
                                   Collierville, (18-   Joyner, Jr.,        Public Services,    portal/advanceSearch.
                                   04-7494P).           Mayor, Town of      500 Keough Road,
                                                        Collierville, 500   Collierville, TN
                                                        Poplar View         38017.
                                                        Parkway,
                                                        Collierville, TN
                                                        38017.
    Shelby......................  Unincorporated       The Honorable Lee   Shelby County       https://msc.fema.gov/  May 8, 2020..........       470214
                                   areas of Shelby      Harris, Mayor,      Department of       portal/advanceSearch.
                                   County, (18-04-      Shelby County,      Engineering, 6463
                                   7494P).              160 North Main      Haley Road,
                                                        Street, Memphis,    Memphis, TN 38134.
                                                        TN 38103.
Texas:
    Bell........................  City of Harker       The Honorable       Building and        https://msc.fema.gov/  Jun. 17, 2020........       480029
                                   Heights, (18-06-     Spencer H. Smith,   Permits             portal/advanceSearch.
                                   3437P).              Mayor, City of      Department, 305
                                                        Harker Heights,     Millers Crossing,
                                                        305 Millers         Harker Heights,
                                                        Crossing, Harker    TX 76548.
                                                        Heights, TX 76548.
    Bexar.......................  City of San          The Honorable Ron   Transportation and  https://msc.fema.gov/  Jun. 22, 2020........       480045
                                   Antonio, (19-06-     Nirenberg, Mayor,   Capitol             portal/advanceSearch.
                                   1390P).              City of San         Improvements
                                                        Antonio, P.O. Box   Department, Storm
                                                        839966, San         Water Division,
                                                        Antonio, TX 78283.  114 West Commerce
                                                                            Street, 7th
                                                                            Floor, San
                                                                            Antonio, TX 78205.
    Bexar.......................  Unincorporated       The Honorable       Bexar County        https://msc.fema.gov/  Jun. 15, 2020........       480035
                                   areas of Bexar       Nelson W. Wolff,    Public Works        portal/advanceSearch.
                                   County, (19-06-      Bexar County        Department, 1948
                                   3386P).              Judge, 101 West     Probandt Street,
                                                        Nueva Street,       San Antonio, TX
                                                        10th Floor, San     78214.
                                                        Antonio, TX 78205.
    Collin......................  City of Plano, (20-  The Honorable       Department of       https://msc.fema.gov/  Jul. 17, 2020........       480140
                                   06-0804P).           Harry               Engineering, 1520   portal/advanceSearch.
                                                        LaRosiliere,        K Avenue, Suite
                                                        Mayor, City of      250, Plano, TX
                                                        Plano, 1520 K       75074.
                                                        Avenue, Suite
                                                        300, Plano, TX
                                                        75074.
    Denton......................  City of Denton (19-  The Honorable       Engineering         https://msc.fema.gov/  Jul. 17, 2020........       480194
                                   06-2271P).           Chris Watts,        Department, 901-A   portal/advanceSearch.
                                                        Mayor, City of      Texas Street,
                                                        Denton, 215 East    Denton, TX 76209.
                                                        McKinney Street,
                                                        Denton, TX 76201.
    Denton......................  City of Denton (20-  The Honorable       Engineering         https://msc.fema.gov/  Jul. 24, 2020........       480194
                                   06-0789P).           Chris Watts,        Department, 901-A   portal/advanceSearch.
                                                        Mayor, City of      Texas Street,
                                                        Denton, 215 East    Denton, TX 76209.
                                                        McKinney Street,
                                                        Denton, TX 76201.
    Denton......................  Unincorporated       The Honorable Andy  Denton County       https://msc.fema.gov/  Jul. 24, 2020........       480774
                                   areas of Denton      Eads, Denton        Public Works,       portal/advanceSearch.
                                   County, (20-06-      County Judge, 110   Engineering
                                   0789P).              West Hickory        Department, 1505
                                                        Street, 2nd         East McKinney
                                                        Floor, Denton, TX   Street, Suite
                                                        76201.              175, Denton, TX
                                                                            76209.
    El Paso.....................  City of El Paso,     Mr. Tommy           Development         https://msc.fema.gov/  Jun. 16, 2020........       480214
                                   (19-06-2053P).       Gonzalez,           Department, 801     portal/advanceSearch.
                                                        Manager, City of    Texas Avenue, El
                                                        El Paso, 300        Paso, TX 79901.
                                                        North Campbell
                                                        Street, El Paso,
                                                        TX 79901.

    El Paso.....................  Unincorporated       The Honorable       El Paso County      https://msc.fema.gov/  Jun. 16, 2020........       480212
                                   areas of El Paso     Ricardo A.          Public Works        portal/advanceSearch.
                                   County, (19-06-      Samaniego, El       Department, 800
                                   2053P).              Paso County         East Overland
                                                        Judge, 500 East     Avenue, Suite
                                                        San Antonio         200, El Paso, TX
                                                        Street, Suite       79901.
                                                        301, El Paso, TX
                                                        79901.
    Kaufman.....................  City of Crandall     The Honorable       City Hall, 110      https://msc.fema.gov/  Jul. 10, 2020........       480409
                                   (19-06-3605P).       Danny Kirbie,       South Main          portal/advanceSearch.
                                                        Mayor, City of      Street, Crandall,
                                                        Crandall, P.O.      TX 75114.
                                                        Box 277,
                                                        Crandall, TX
                                                        75114.
    Kaufman.....................  Unincorporated       The Honorable Hal   Kaufman County      https://msc.fema.gov/  Jul. 10, 2020........       480411
                                   areas of Kaufman     Richards, Kaufman   Development         portal/advanceSearch.
                                   County, (19-06-      County Judge, 100   Services
                                   3605P).              West Mulberry       Department, 106
                                                        Street, Kaufman,    West Grove
                                                        TX 75142.           Street, Kaufman,
                                                                            TX 75142.
    Kaufman.....................  Unincorporated       The Honorable Hal   Kaufman County      https://msc.fema.gov/  Jul. 6, 2020.........       480411
                                   areas of Kaufman     Richards, Kaufman   Development         portal/advanceSearch.
                                   County, (20-06-      County Judge, 100   Services
                                   0329P).              West Mulberry       Department, 106
                                                        Street, Kaufman,    West Grove
                                                        TX 75142.           Street, Kaufman,
                                                                            TX 75142.
    Kendall.....................  Unincorporated       The Honorable       Kendall County      https://msc.fema.gov/  Jun. 24, 2020........       480417
                                   areas of Kendall     Darrel L. Lux,      Engineering         portal/advanceSearch.
                                   County, (19-06-      Kendall County      Department, 201
                                   2192P).              Judge, 201 East     East San Antonio
                                                        San Antonio         Avenue, Suite
                                                        Avenue, Suite       101, Boerne, TX
                                                        122, Boerne, TX     78006.
                                                        78006.
    Tarrant.....................  City of Hurst, (18-  The Honorable       Public Works        https://msc.fema.gov/  Jul. 6, 2020.........       480601
                                   06-4025P).           Henry Wilson,       Department, 1505    portal/advanceSearch.
                                                        Mayor, City of      Precinct Line
                                                        Hurst, 1505         Road, Hurst, TX
                                                        Precinct Line       76054.
                                                        Road, Hurst, TX
                                                        76054.
    Tarrant.....................  City of Richland     The Honorable       City Hall, 3200     https://msc.fema.gov/  Jul. 6, 2020.........       480608
                                   Hills, (18-06-       Edward Lopez,       Diana Drive,        portal/advanceSearch.
                                   4025P).              Mayor, City of      Richland Hills,
                                                        Richland Hills,     TX 76118.
                                                        3200 Diana Drive,
                                                        Richland Hills,
                                                        TX 76118.
    Travis......................  Unincorporated       The Honorable       Travis County       https://msc.fema.gov/  Jul. 13, 2020........       481026
                                   areas of Travis      Sarah Eckhardt,     Transportation      portal/advanceSearch.
                                   County, (19-06-      Travis County       and Natural
                                   2941P).              Judge, P.O. Box     Resources
                                                        1748, Austin, TX    Department, 700
                                                        78767.              Lavaca Street,
                                                                            5th Floor,
                                                                            Austin, TX 78701.
Utah:
    Washington..................  City of St. George,  The Honorable       City Hall, 175      https://msc.fema.gov/  Jul. 1, 2020.........       490177
                                   (20-08-0005P).       Jonathon T. Pike,   East 200 North,     portal/advanceSearch.
                                                        Mayor, City of      St. George, UT
                                                        St. George, 175     84770..
                                                        East 200 North,
                                                        St. George, UT
                                                        84770.
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[FR Doc. 2020-07052 Filed 4-2-20; 8:45 am]
BILLING CODE 9110-12-P