[Federal Register Volume 82, Number 7 (Wednesday, January 11, 2017)]
[Proposed Rules]
[Pages 3512-3516]
[FR Doc No: 2016-30040]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 320

[EPA-HQ-OLEM-2016-0212; FRL-9956-56-OLEM]
RIN 2050-AG56

Financial Responsibility Requirements for Facilities in the
Chemical, Petroleum and Electric Power Industries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent to proceed with rulemakings.

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SUMMARY: Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) establishes certain regulatory
authorities concerning financial responsibility requirements.
Specifically, the statutory language addresses the promulgation of
regulations that require classes of facilities to establish and
maintain evidence of financial responsibility consistent with the
degree and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances. On January 6, 2010, the Environmental Protection Agency
(EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that
identified additional classes of facilities within three industry
sectors that may warrant the development of financial responsibility
requirements under CERCLA section 108(b)--the Chemical Manufacturing
industry (NAICS 325), the Petroleum and Coal Products Manufacturing
industry (NAICS 324), and the Electric Power Generation, Transmission,
and Distribution industry (NAICS 2211). This document formally
announces EPA's intention to publish a notice for proposed rulemaking
for classes of facilities within the three industries identified in the
2010 ANPRM, as well as gives an overview of some of the comments
received on the ANPRM and initial responses to those comments. The
announcement in this action is not a determination that requirements
are necessary for any or all of the classes of facilities within the
three industries, or that EPA will propose such requirements--rather,
it is an announcement that EPA intends to move forward with the
regulatory process. After that process, EPA will determine whether
proposal of requirements for any or all of the classes of facilities
within the three industries is necessary.

DATES: January 11, 2017.

FOR FURTHER INFORMATION CONTACT: For more information on this action,
contact Peggy Vyas, U.S. Environmental Protection Agency, Office of
Resource Conservation and Recovery, Mail Code 5303P, 1200 Pennsylvania
Ave. NW., Washington, DC 20460; telephone (703)

308-5477 or (email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. How can I get copies of this document and other related information?

    1. Docket. EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2016-0212. The 2010 Advance Notice of
Proposed Rulemaking and its related documents, including background
documents and public comments, are under Docket ID No. EPA-HQ-SFUND-
2009-0834. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at EPA/DC, EPA West, Room
3334, 1301 Constitution Ave. NW., Washington, DC 20460. This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The Docket telephone number is (202) 566-
0276. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is<PHONE_NUMBER>.
    2. Electronic Access. You may access this Federal Register document
electronically from the Government Printing Office under the ``Federal
Register'' listings at FDSys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

II. Overview of CERCLA Section 108(b)

    CERCLA section 108(b) generally requires that EPA develop
requirements that classes of facilities establish and maintain evidence
of financial responsibility ``consistent with the degree and duration
of risk associated with the production, transportation, treatment,
storage, or disposal of hazardous substances.'' \1\ CERCLA section
108(b)(2) directs that the level of financial responsibility shall be
initially established, and, when necessary, adjusted to protect against
the level of risk that EPA in its discretion believes is appropriate
based on the payment experience of the Fund, commercial insurers,
courts settlements and judgments, and voluntary claims satisfaction.
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    \1\ Executive Order 12580 delegates the responsibility to
develop these requirements to the Administrator of EPA for non-
transportation related facilities. 52 FR 2923, 3 CFR, 1987 Comp., p.
193.
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    CERCLA section 108(b) also discusses particular instruments for EPA
to consider in its regulations. Specifically, paragraph (b)(2) states
that financial responsibility may be established by any one, or any
combination, of the following: Insurance, guarantee, surety bond,
letter of credit, or qualification as a self-insurer. Paragraph (b)(2)
further authorizes EPA to specify policy or other contractual terms,
conditions, or defenses which are necessary, or which are unacceptable
in establishing evidence of financial responsibility. Paragraph (b)(2)
also requires EPA to cooperate with and seek the advice of the
commercial insurance industry to the maximum extent practicable when
developing financial responsibility requirements.\2\ Paragraph (b)(4)
provides direction on how the CERCLA section 108(b) instruments are to
address multiple owners and operators at a single facility.\3\
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    \2\ 42 U.S.C. 9608(b)(2).
    \3\ 42 U.S.C. 9608(b)(4).
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    CERCLA section 108(b)(3) requires that regulations promulgated
under CERCLA section 108(b) incrementally impose financial
responsibility requirements as quickly as can reasonably be achieved,
but in no event more than four years after the date of promulgation.\4\
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    \4\ 42 U.S.C. 9608(b)(3).
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    CERCLA section 108(c) also includes a ``direct action'' provision
under which any claim authorized by CERCLA section 107 or 111 may be
asserted directly against any guarantor providing evidence of financial
responsibility under CERCLA section 108(b) if the person is liable
under CERCLA section 107 and (1) is in bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Code, or (2) is likely
to be solvent at the time of judgment, but over whom jurisdiction in
the Federal courts cannot be obtained with reasonable diligence.\5\
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    \5\ 42 U.S.C. 9608(c)(2).
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III. In re Idaho Conservation League

    In August 2014, the groups Idaho Conservation League, Earthworks,
Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities
for a Better Environment filed a lawsuit in the U.S. Court of Appeals
for the District of Columbia Circuit, for a writ of mandamus requiring
issuance of CERCLA section 108(b) financial responsibility rules for
the hardrock mining industry, and for the three additional industries
identified by EPA in the ANPRM, that is, Chemical Manufacturing,
Petroleum and Coal Products Manufacturing, and Electric Power
Generation, Transmission, and Distribution.\6\ Following oral
arguments, EPA and the petitioners submitted Joint Motion for an Order
on Consent, filed on August 31, 2015, which included a schedule for
further administrative proceedings under CERCLA section 108(b). The
court order granting the motion was issued on January 29, 2016. A copy
of the order can be found in the docket for this action.
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    \6\ See In re: Idaho Conservation League, No. 14-1149. For more
information on the lawsuit please refer to the preamble of the
``Financial Responsibility Requirements for the Hardrock Mining
Industry'' proposed rule, published elsewhere in this Federal
Register.
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    In addition to requiring EPA to publish a proposed rule on hardrock
mining financial requirements by December 1, 2016, the January 2016
Order requires EPA to ``sign for publication in the Federal Register a
determination whether EPA will issue a action of proposed rulemaking on
financial responsibility requirements under CERCLA Sec.  108(b) in the
(a) chemical manufacturing industry; (b) petroleum and coal products
manufacturing industry; and (c) electric power generation,
transmission, and distribution industry by December 1, 2016.'' The
publication of this action satisfies that component of the January 2016
order. The order includes the following schedule for these rulemakings:

    ``EPA will sign for publication in the Federal Register a notice
of proposed rulemaking in the first additional industry by July 2,
2019, and sign for publication in the Federal Register a notice of
its final action by December 2, 2020.
    EPA will sign for publication in the Federal Register a notice
of proposed rulemaking in the second additional industry by December
4, 2019, and sign for publication in the Federal Register a notice
of its final action by December 1, 2021.
    EPA will sign for publication in the Federal Register a notice
of proposed rulemaking in the third additional industry by December
1, 2022, and sign for publication in the Federal Register a notice
of its final action by December 4, 2024.'' \7\
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    \7\ In Re: Idaho Conservation League, No. 14-1149 (D.C. Cir.
Jan. 29, 2016) (order granting joint motion).

    While the January 2016 Order identifies the other industries as
being the Chemical Manufacturing industry, the Petroleum and Coal
Products Manufacturing industry, and the Electric Power Generation,
Transmission and Distribution industry, and sets a rulemaking schedule,
it does not specify which industry will be the

first, second or third. EPA will decide that at a later date. Nor does
the January 2016 Order mandate any specific outcome of the
rulemakings.\8\ The Joint Motion specified that it did not alter the
Agency's discretion provided by CERCLA and administrative law.\9\ In
other words, the substance of any requirements arising out of CERCLA
section 108(b) for the additional classes are not established in this
action--any such requirements, if they are imposed, will not be
established until EPA issues any final rules for these classes.
Consequently, this document is not final agency action.
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    \8\ In granting the Joint Motion, the court expressly stated
that its Order ``merely requires that EPA conduct a rulemaking and
then decide whether to promulgate a new rule--the content of which
is not in any way dictated by the [Order].'' In re Idaho
Conservation League, at 17 (quoting Defenders of Wildlife v.
Perciasepe, 714 F, 3d 1317, 1324 (D.C. Cir. 2013).
    \9\ See Joint Motion at 6 (``Nothing in this Joint Motion should
be construed to limit or modify the discretion accorded EPA by CECLA
or the general principles of administrative law''.)
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IV. Factors Identified by EPA for Consideration in the Decision To
Develop a Proposed Rule for an Additional Industry Sector

    On July 28, 2009, EPA published a Priority Notice in which we
identified classes of facilities in the hardrock mining industry for
development of CERCLA section 108(b) financial responsibility
requirements. In that action, EPA also announced its intention to
consider additional industry sectors. EPA identified the following
factors as among those it may consider in the decision whether to
propose requirements for an industry sector: (1) The amounts of
hazardous substances released to the environment; (2) the toxicity of
these substances; (3) the existence and proximity of potential
receptors; (4) contamination historically found from facilities; (5)
whether the causes of this contamination still exist; (6) experiences
from Federal cleanup programs; (7) projected costs of Federal clean-up
programs; and (8) corporate structures and bankruptcy potential.\10\
EPA also indicated that the Agency intends to consider whether
financial responsibility requirements under CERCLA section 108(b) will
effectively reduce these risks.\11\
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    \10\ See 74 FR 37218.
    \11\ See 74 FR 37219.
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    Some of the factors reflect the basic elements of risk evaluation
(i.e., the probability of release, exposure, and toxicity); others more
closely relate to the severity of consequences that result when risks
are realized, such as the releases' duration and the exposures that can
result if releases are not prevented or quickly controlled (e.g. as a
result of economic constraints).

V. Additional Classes Advance Notice of Proposed Rulemaking

    On January 6, 2010, EPA published an ANPRM,\12\ in which the Agency
identified three additional industrial sectors for the development, as
necessary, of a proposed CERCLA section 108(b) regulation. To develop
the list of additional classes for the 2010 ANPRM, EPA used information
from the National Priorities List (NPL), as well as analyzed data from
the Biennial Report (BR) and Toxics Release Inventory (TRI). As was
discussed in the document, these sources were chosen because ``they are
well-established, reliable sources of information on facilities
associated with hazardous substances, and were readily available to the
Agency.'' \13\ In addition to these sources, EPA further evaluated
industry sectors by gathering additional information from natural
resource damage cases. The result of this analysis is explained in the
2010 ANPRM in detail, with the conclusion that three industries--the
Chemical Manufacturing industry (NAICS 325), the Petroleum and Coal
Products Manufacturing industry (NAICS 324), and the Electric Power
Generation, Transmission, and Distribution industry (NAICS 2211)--
should be considered for financial responsibility requirements under
CERCLA section 108(b).
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    \12\ See 75 FR 816.
    \13\ See 75 FR 819.
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    EPA specifically requested public comment in the 2010 ANPRM on
whether to propose a regulation under CERCLA section 108(b) for any
class or classes, or the industry as a whole, including information
demonstrating why such financial responsibility requirements would not
be appropriate for those particular classes. In addition, the Agency
requested information related to the industry categories discussed in
the action, including data on facility operations, information on past
and expected future environmental responses, use of financial
responsibility mechanisms by the industry categories, existing
financial responsibility requirements, and other information the Agency
might consider in setting financial responsibility levels. Finally, EPA
requested information from the insurance and the financial sectors
related to instrument implementation and availability, and potential
instrument conditions.\14\
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    \14\ See 75 FR 830-831.
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    EPA received over sixty comments on the ANPRM, which can be found
in the docket for that action (see Docket ID No. EPA-HQ-SFUND-2009-
0834). Several comments offered valuable insight that will help to
inform the Agency's approach to the additional classes ANPRM. While the
Agency is not obligated to respond to comments received on the ANPRM,
EPA has provided general responses to those comments that relate
specifically to this announcement that EPA will continue the regulatory
process under CERCLA section 108(b).

VI. Comments Received on the 2010 ANPRM

    Representatives for the electric utility industry submitted roughly
one-third of the comments on the 2010 ANPRM. Representatives for the
chemical manufacturing industry, the petroleum industry, the waste
management industry, the hardrock mining industry, as well as other
interested parties also submitted comments.
    The comments on the 2010 ANPRM, which specifically addressed the
need for CERCLA section 108(b) regulation for the additional classes,
can be divided into four categories: (1) Other laws that the industry
complies with that obviate the need for CERCLA section 108(b)
regulation; (2) the sources of data EPA used to select the industries;
(3) past versus current practices within each industry; and (4) the
overall need for financial responsibility for each industry. EPA is
broadly addressing these categories of comments in this action.

A. Other Laws

    Many commenters cited existing laws that their industries are
already complying with to ensure that there are no occurrences of non-
permitted releases of hazardous substances. In particular, commenters
pointed out that there are already financial responsibility
requirements under the Resource Conservation and Recovery Act (RCRA).
While EPA appreciates the concern, as was discussed above, CERCLA
section 108(b) broadly directs the development of financial
responsibility requirements consistent with the degree and duration of
risk associated with the production, transportation, treatment, storage
or disposal of hazardous substances. These requirements, which are
designed to help ensure that CERCLA liabilities are paid if CERCLA
claims are made, are distinct from financial responsibility
requirements for closure imposed under other statutes, such as RCRA,
which are more narrowly designed to assure

compliance with those closure requirements.
    At the same time, the Agency recognizes that compliance with
regulatory requirements may reduce the risks at a facility. Thus, as
EPA moves forward with developing proposed rules for additional classes
of facilities, EPA expects to consider site factors that reduce risks,
including those that result from compliance with other regulatory
requirements. EPA has taken a similar approach in the CERCLA section
108(b) proposed rule applicable to hardrock mining, which is published
elsewhere in this Federal Register.

B. Data Used in Developing the ANPRM

    In the ANPRM, EPA used data from the Toxics Release Inventory
(TRI), and RCRA's national Biennial Report (BR), among other sources,
to identify and prioritize which classes of facilities present the
highest risk of injury due to exposure, and thus to justify the need to
prioritize financial responsibility requirements. The Chemical
Manufacturing and Petroleum and Coal Products Manufacturing industries
were the top two industries in a ranking of the quantity of hazardous
waste generated in 2007. They were responsible for approximately 64
percent of all the hazardous waste reported to the 2007 Biennial Report
cycle.\15\ The Electric Power Generation, Transmission and Distribution
industry was responsible for approximately 0.05 percent hazardous waste
generated. This is not unexpected considering that coal combustion
residuals (CCRs) are a ``Bevill exempt'' \16\ waste under RCRA, and
thus not subject to Biennial Reporting requirements. Therefore, the
amount of hazardous waste generated is not necessarily a valid
representation of the hazardous substances produced by that
industry.\17\
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    \15\ See 75 FR 820-821.
    \16\ The ``Bevill'' exemption is codified at 40 CFR
261.3(a)(2)(i) and (g)(4) and 261.4(b)(7).
    \17\ This notice does not revisit EPA's Regulatory Determination
for CCR disposal units. See Hazardous and Solid Waste Management
System; Disposal of Coal Combustion Residuals from Electric
Utilities, 80 FR 21302, April 17, 2015.
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    The Chemical Manufacturing and Electric Power Generation,
Transmission and Distribution industries ranked high on the list of on-
site releases reported to TRI in 2007, at number two and three
respectively. The Petroleum and Coal Products Manufacturing industry
ranked seventh on that list.\18\
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    \18\ See 75 FR 821.
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    Commenters expressed concern that releases reported to TRI are
permitted releases, subject to various environmental laws. Commenters
also expressed concern that BR data merely shows the quantity of
hazardous substances generated and managed, and not any mismanagement
of those substances. Neither of these, commenters felt, should be used
as indicators of potential risk of exposure due to a release. EPA
recognizes the limitations on the extent of information that can be
gained from TRI and BR data, however, EPA believes these data do offer
insight into the characteristics and management of hazardous substances
for facilities in each industry, and that in conjunction with other
information, can be used as to evaluate the relative degree of risk
posed by a class of facilities and the priority need for financial
responsibility regulation under CERCLA section 108(b). As with the
hardrock mining rule, for each subsequent industry rule, EPA intends to
use other, more industry-specific and more current sources of data to
identify risk, and will propose financial responsibility requirements
based on the record EPA will develop for each rulemaking. Where the
Agency finds risk associated with management of hazardous substances
for a class of facilities, it is obligated to promulgate financial
responsibility requirements that are consistent with the degree and
duration of that risk. None of the commenters submitted data to
dissuade the Agency from the path of acquiring additional and more
comprehensive information for these industries. The Agency considers
quantity and toxicity of hazardous substances released to the
environment are good indicators of risk.

C. Past versus Current Industry Practices

    Another source of data for the ANPRM was the Superfund National
Priorities List (NPL). The NPL is the list of national priorities among
the known releases or threatened releases of hazardous substances,
pollutants, or contaminants in the United States. The Agency assigned
three-digit NAICS \19\ codes that best identified the activities at
each site, using available data and best professional judgment. The
Chemical Manufacturing industry had a total of 181 sites on the NPL
from 1981-2009, the Petroleum and Coal Products Manufacturing industry
had 30 sites.\20\
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    \19\ North American Industry Classification System (NAICS)--the
standard used by Federal statistical agencies in classifying
business establishments for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S. business
economy. NAICS codes are available at: http://www.census.gov.
    \20\ See 75 FR 820.
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    Commenters whose industries had sites listed on the NPL pointed out
that many of those sites either did not remain in production, or had
practices that were improved based on environmental regulations issued
after the initial contamination. Commenters felt that legacy
contamination was not a valid indicator of current and future risk.
Also at issue was EPA's analysis of the NPL data. Some commenters felt
their industry was over-represented based on incorrect analysis of the
NPL data.
    EPA believes, notwithstanding the commenters' negative assessment
of the Agency's analysis, that the NPL assessment is informative. Like
the TRI and BR data, NPL data was used to indicate which industries
pose potential risk that would warrant pursuing financial
responsibility regulation under CERCLA section 108(b). The Agency did
not receive evidence that risks do not continue at these sites. Where
risk continues, EPA believes it is appropriate to consider site factors
that reduce risks, such as current industry practices, in determining
the level of financial responsibility required. Consideration will also
be given to payment experience of the Fund, commercial insurers, court
settlements and judgments, and voluntary claims satisfaction.

D. Need for Financial Responsibility

    A common theme in the comments, across all three industries, was
that there was no need for financial responsibility since facilities
within these industries are not in danger of going bankrupt. Many
commenters felt that rather than focus on a few examples of past
bankruptcies, EPA should consider the financial health of all the
companies in an industry as a group. EPA disagrees with commenters'
suggestion that need for financial responsibility should be informed by
the financial health of the overall industry. Financial responsibility
is imposed on classes within an industry, but is assessed at the
facility level, and not the industry as a whole. Economic solvency at
an industry-wide level is not a substitute for insurance against the
possibility of CERCLA liabilities remaining unsatisfied on a facility-
specific basis. Furthermore, CERCLA section 108(b) funds could be used
to address releases at currently-operating facilities. It should be
noted that, as mentioned in the preamble to the Financial
Responsibility Requirements under CERCLA Section 108(b) for Classes of
Facilities in the Hardrock Mining Industry proposed rule, the financial
responsibility formula

developed for the hardrock mining industry is intended for that
industry only, and is not intended for other industries. In future
rulemakings under CERCLA section 108(b) for the additional classes, EPA
will evaluate how to determine financial responsibility amounts for
each particular industry, and will propose an appropriate methodology.

E. Comments That Support CERCLA Section 108(b) Requirements for
Additional Classes

    The Agency received two comments on the ANPRM that supported the
need for CERCLA section 108(b) regulations for the additional classes.
The first commenter provided an example of a facility that required
cleanup and where, in the commenter's opinion, had the facility been
subject to financial responsibility requirements, remediation would
have been achieved much earlier as financial resources would have been
available from the outset to carry out the remediation and there would
have been less incentive for the responsible party to delay cleanup.
    The second commenter supporting the need for financial
responsibility requirements for the additional classes cited a 2005 GAO
report that the number of sites on the NPL continues to expand, with
EPA adding an average of 28 sites to the NPL each year from 1983 to
2003, and the 1995 expiration of CERCLA authority to collect taxes for
the Superfund as reasons for EPA to move forward with regulations ``to
ensure that facilities generating and handling hazardous substances
will remain financially able to clean-up improperly disposed substances
that could pose threats to public health and the environment.''

VII. Conclusion

    Since the issuance of the 2010 ANPRM, EPA has not received evidence
that would demonstrate that regulation under CERCLA section108(b) is
not necessary for the Chemical Manufacturing industry (NAICS 325), the
Petroleum and Coal Products Manufacturing industry (NAICS 324), and the
Electric Power Generation, Transmission, and Distribution industry
(NAICS 2211).
    EPA has not, at this time, identified sufficient evidence to
determine that initiating the rulemaking process is not warranted, nor
has EPA identified sufficient evidence to establish the necessary
CERCLA section 108(b) requirements, if any. To make a final decision
regarding the need for CERCLA section 108(b) requirements, the Agency
must gather additional information, and must further evaluate the
classes of facilities within the three industry sectors.
    Therefore, in response to the January 29, 2016 Court Order, EPA is
announcing its intent to proceed with rulemakings according to the
schedule stipulated in the order. This announcement does not indicate
that EPA has determined that requirements are necessary for any or all
of the classes of facilities within the three industries, or that EPA
will propose such requirements--rather, this announcement indicates
that EPA intends to move forward with the regulatory process. That
process will include gathering and analyzing additional information to
support the Agency's ultimate decision. At that time, EPA will decide
whether proposal of requirements for any or all of the classes of
facilities within each industry sector is necessary and, if they are,
will propose appropriate requirements. If, however, after a careful
evaluation of the information for each industry sector, EPA were to
determine that requirements under CERCLA section 108(b) are not
necessary, EPA would propose not to impose requirements. In other
words, this document does not constitute a rulemaking. It merely
indicates the initiation of the rulemaking process rather than being
the culmination of such a process.

    Dated: December 1, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-30040 Filed 1-10-17; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 86 (Monday, May 4, 2020)]
[Notices]
[Pages 26507-26508]
[FR Doc No: 2020-09378]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 33857; File No. 812-15075]

First Trust Series Fund, et. al.

April 28, 2020.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    Notice of an application for an order pursuant to: (a) Section 6(c)
of the Investment Company Act of 1940 (``Act'') granting an exemption
from sections 18(f) and 21(b) of the Act; (b) section 12(d)(1)(J) of
the Act granting an exemption from section 12(d)(1) of the Act; (c)
sections 6(c) and 17(b) of the Act granting an exemption from sections
17(a)(1), 17(a)(2) and 17(a)(3) of the Act; and (d) section 17(d) of
the Act and rule 17d-1 under the Act to permit certain joint
arrangements and transactions. Applicants request an order that would
permit certain registered open-end management investment companies to
participate in a joint lending and borrowing facility.
    Applicants: First Trust Series Fund, First Trust Variable Insurance
Trust, First Trust Exchange-Traded Fund, First Trust Exchange-Traded
Fund II, First Trust Exchange-Traded Fund III, First Trust Exchange-
Traded Fund IV, First Trust Exchange-Traded Fund V, First Trust
Exchange-Traded Fund VI, First Trust Exchange-Traded Fund VII, First
Trust Exchange-Traded Fund VIII, First Trust Exchange-Traded
AlphaDEX[supreg] Fund, and First Trust Exchange-Traded AlphaDEX[supreg]
Fund II, each an investment company organized as a Massachusetts
business trust and registered under the Act as an open-end management
investment company, and on behalf of each of their respective series
\1\, and First Trust Advisors L.P. (the ``Adviser''), an Illinois
limited partnership registered as an investment adviser under the
Investment Advisers Act of 1940.
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    \1\ Certain of the Funds (defined below) may be money market
funds that comply with Rule 2a-7 under the Act (each a ``Money
Market Fund Money Market Funds typically will not participate as
borrowers under the interfund lending facility because they rarely
need to borrow cash to meet redemptions.
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    Filing Dates: The application was filed on October 22, 2019 and
amended on February 13, 2020.
    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 emailing the Commission's
Secretary at<EMAIL_ADDRESS>and serving applicants with a
copy of the request, personally, by mail, or by email. Hearing requests
should be received by the Commission by 5:30 p.m. on May 25, 2020, 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 reason for the request,
and the issues contested. Persons who wish to be notified of a hearing
may request notification by emailing the Commission's Secretary at
<EMAIL_ADDRESS>
ADDRESSES: Secretary, U.S. Securities and Exchange Commission,
<EMAIL_ADDRESS>Applicants: Attention: W. Scott Jardine, 120
East Liberty Drive, Suite 400, Wheaton, IL 60187,
<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Lily D. Vo, Senior Counsel, at (202)
551-5431, or Kaitlin Bottock, Branch Chief, at<PHONE_NUMBER> (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 website by searching for the file number, or an applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Summary of the Application

    1. Applicants request an order that would permit the applicants to
participate in an interfund lending facility where each Fund could lend
money directly to and borrow money directly from other Funds to cover
unanticipated cash shortfalls, such as unanticipated redemptions or
sales fails.\2\ The Funds will not borrow under

the facility for leverage purposes and the loans' duration will be no
more than 7 days.\3\
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    \2\ Applicants request that the order apply to the applicants
and to any existing or future registered open-end management
investment company or series thereof for which the Adviser or any
successor thereto or an investment adviser controlling, controlled
by, or under common control with the Adviser or any successor
thereto serves as investment adviser (each a ``Fund'' and
collectively the ``Funds'' and each such investment adviser an
``Adviser''). For purposes of the requested order, ``successor'' is
limited to any entity that results from a reorganization into
another jurisdiction or a change in the type of a business
organization.
    \3\ Any Fund, however, will be able to call a loan on one
business day's notice.
---------------------------------------------------------------------------

    2. Applicants anticipate that the proposed facility would provide a
borrowing Fund with a source of liquidity at a rate lower than the bank
borrowing rate at times when the cash position of the Fund is
insufficient to meet temporary cash requirements. In addition, Funds
making short-term cash loans directly to other Funds would earn
interest at a rate higher than they otherwise could obtain from
investing their cash in repurchase agreements or certain other short
term instruments. Thus, applicants assert that the facility would
benefit both borrowing and lending Funds.
    3. Applicants agree that any order granting the requested relief
will be subject to the terms and conditions stated in the application.
Among others, the Adviser, through a designated committee, would
administer the facility as a disinterested fiduciary as part of its
duties under the investment management agreements with the Funds and
would receive no additional fee as compensation for its services in
connection with the administration of the facility.\4\ The facility
would be subject to oversight and certain approvals by the Funds'
Board, including, among others, approval of the interest rate formula
and of the method for allocating loans across Funds, as well as review
of the process in place to evaluate the liquidity implications for the
Funds. A Fund's aggregate outstanding interfund loans will not exceed
15% of its net assets, and the Fund's loans to any one Fund will not
exceed 5% of the lending Fund's net assets.\5\
---------------------------------------------------------------------------

    \4\ Members of the designated committee may include one or more
investment professionals, including individuals involved in making
investment decisions regarding short-term investments.
    \5\ Under certain circumstances, a borrowing Fund will be
required to pledge collateral to secure the loan.
---------------------------------------------------------------------------

    4. Applicants assert that the facility does not raise the concerns
underlying section 12(d)(1) of the Act given that the Funds are part of
the same group of investment companies and there will be no duplicative
costs or fees to the Funds.\6\ Applicants also assert that the proposed
transactions do not raise the concerns underlying sections 17(a)(1),
17(a)(3), 17(d) and 21(b) of the Act as the Funds would not engage in
lending transactions that unfairly benefit insiders or are detrimental
to the Funds. Applicants state that the facility will offer both
reduced borrowing costs and enhanced returns on loaned funds to all
participating Funds and each Fund would have an equal opportunity to
borrow and lend on equal terms based on an interest rate formula that
is objective and verifiable. With respect to the relief from section
17(a)(2) of the Act, applicants note that any collateral pledged to
secure an interfund loan would be subject to the same conditions
imposed by any other lender to a Fund that imposes conditions on the
quality of or access to collateral for a borrowing (if the lender is
another Fund) or the same or better conditions (in any other
circumstance).\7\
---------------------------------------------------------------------------

    \6\ Applicants state that the obligation to repay an interfund
loan could be deemed to constitute a security for the purposes of
sections 17(a)(1) and 12(d)(1) of the Act.
    \7\ Applicants state that any pledge of securities to secure an
interfund loan could constitute a purchase of securities for
purposes of section 17(a)(2) of the Act.
---------------------------------------------------------------------------

    5. Applicants also believe that the limited relief from section
18(f)(1) of the Act that is necessary to implement the facility
(because the lending Funds are not banks) is appropriate in light of
the conditions and safeguards described in the application and because
the open-end Funds would remain subject to the requirement of section
18(f)(1) that all borrowings of the open-end Fund, including combined
interfund loans and bank borrowings, have at least 300% asset coverage.
    6. Section 6(c) of the Act permits the Commission to exempt any
persons or transactions from any provision of the Act if 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 12(d)(1)(J) of the Act
provides that the Commission may exempt any person, security, or
transaction, or any class or classes of persons, securities, or
transactions, from any provision of section 12(d)(1) if the exemption
is consistent with the public interest and the protection of investors.
Section 17(b) of the Act authorizes the Commission to grant an order
permitting a transaction otherwise prohibited by section 17(a) if it
finds that (a) the terms of the proposed transaction are fair and
reasonable and do not involve overreaching on the part of any person
concerned; (b) the proposed transaction is consistent with the policies
of each registered investment company involved; and (c) the proposed
transaction is consistent with the general purposes of the Act. Rule
17d-1(b) under the Act provides that in passing upon an application
filed under the rule, the Commission will consider whether the
participation of the registered investment company in a joint
enterprise, joint arrangement or profit sharing plan on the basis
proposed is consistent with the provisions, policies and purposes of
the Act and the extent to which such participation is on a basis
different from or less advantageous than that of the other
participants.

    For the Commission, by the Division of Investment Management,
under delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-09378 Filed 5-1-20; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: January 18, 2011 (Volume 76, Number 11)]
[Rules and Regulations]
[Page 2801-2802]
[DOCID:fr18ja11-4]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2010-1191; Airspace Docket No. 10-AAL-22]

Revocation and Establishment of Compulsory Reporting Points;
Alaska

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action removes and establishes high altitude Alaskan
compulsory reporting points in the vicinity of the United States (U.S.)
and Canadian border. Specifically, the FAA is removing BORAN and
establishing the TOVAD reporting point.

DATES: Effective date 0901 UTC, May 5, 2011. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and
publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT: Ken McElroy, Airspace Regulation and
ATC Procedures Group, Office of Mission Support Services, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

History

    The FAA was notified November 30, 2010, that Canadian Authorities
had removed the BORAN intersection and established the TOVAD
intersection as a compulsory reporting point on the U.S./Canada border
effective November 18, 2010. This action is in response to those
changes. Accordingly, since this is an administrative change and does
not affect the boundaries, altitudes, or operating requirements of the
airspace, notice and public procedures under Title 5 U.S.C. 553(b) are
unnecessary.

The Rule

    The FAA amends Title 14 Code of Federal Regulations (14 CFR) part
71 by removing the BORAN reporting point and establishing the TOVAD
Compulsory Reporting Point on the U.S./Canadian border.
    Alaskan High Altitude Reporting Points are listed in paragraph 7005
of FAA Order 7400.9U dated August 18, 2010, and effective September 15,
2010, which is incorporated by reference in 14 CFR 71.1. The Reporting
Points listed in this document will be revised subsequently in the
Order.
    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation: (1) Is not a ``significant regulatory
action'' under Executive Order 12866; (2) is not a ``significant rule''
under Department of Transportation (DOT) Regulatory Policies and
Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant
preparation of a regulatory evaluation as the anticipated impact is so
minimal. Since this is a routine matter that will only affect air
traffic procedures and air navigation, it is certified that this rule,
when promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority.
    This rulemaking is promulgated under the authority described in
subtitle VII, part A, subpart I, section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of the
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it amends High Altitude Compulsory Reporting Points in Alaska.

Environmental Review

    The FAA has determined that this action qualifies for categorical
exclusion under the National Environmental Policy Act in accordance
with 311a, FAA Order 1050.1E, ``Environmental

Impacts: Policies and Procedures.'' This airspace action is not
expected to cause any potentially significant environmental impacts,
and no extraordinary circumstances exist that warrant preparation of an
environmental assessment.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854,
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9U,
Airspace Designations and Reporting Points, signed August 18, 2010, and
effective September 15, 2010, is amended as follows:

Paragraph 7005 Alaskan High Altitude Reporting Points.

* * * * *

BORAN, AK [Removed]

* * * * *

TOVAD, AK [New]

    Issued in Washington, DC on January 7, 2011.
Edith V. Parish,
Manager, Airspace Regulation and ATC Procedures Group.
[FR Doc. 2011-827 Filed 1-14-11; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: August 25, 2009 (Volume 74, Number 163)]
[Notices]
[Page 42885]
[DOCID:fr25au09-58]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP09-454-000]

BCR Holdings, Inc.; Notice of Application

August 18, 2009.
    Take notice that on August 13, 2009, BCR Holdings, Inc. (BCR), 820
Gessner, Suite 1680, Houston, TX 77024, filed a petition in Docket No.
CP09-454-000 for Exemption of Temporary Acts and Operations from
Certificate Requirements, pursuant to Rule 207(a)(5) of the
Commission's Rules of Practice and Procedure, and section 7(c)(1)(B) of
the Natural Gas Act, seeking approval of an exemption from certificate
requirements to perform temporary activities in order to drill two test
wells and perform other activities to assess the feasibility of
developing an underground natural gas storage facility in Lafourche
Parish, Louisiana, all as more fully set forth in the application which
is on file with the Commission and open to public inspection. The
filing may also be viewed on the Web at http://www.ferc.gov using the
``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. For
assistance, call<PHONE_NUMBER> or TYY,<PHONE_NUMBER>.
    Any questions regarding this application should be directed to
Thomas W. Cook, 805 E. Union St., Broken Arrow, Oklahoma 74011, and
phone:<PHONE_NUMBER> or facsimile:<PHONE_NUMBER>.
    There are two ways to become involved in the Commission's review of
this project. First, any person wishing to obtain legal status by
becoming a party to the proceedings for this project should, on or
before the comment date file with the Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, a motion to
intervene in accordance with the requirements of the Commission's Rules
of Practice and Procedure (18 CFR 385.214 or 385.211) and the
Regulations under the NGA (18 CFR 157.10). A person obtaining party
status will receive copies of all documents filed by the applicant and
by all other parties. A party must submit 14 copies of filings made in
the proceeding with the Commission and must mail a copy to the
applicant and to every other party. Only parties to the proceeding can
ask for court review of Commission orders in the proceeding.
    Persons who wish to comment only on the environmental review of
this project, or in support of or in opposition to this project, should
submit an original and two copies of their comments to the Secretary of
the Commission. Environmental commenters will be placed on the
Commission's environmental mailing list, will receive copies of the
environmental documents, and will be notified of meetings associated
with the Commission's environmental review process. Environmental
commenters will not be required to serve copies of filed documents on
all other parties. The Commission's rules require that persons filing
comments in opposition to the project provide copies of their protests
only to the applicant. However, the non-party commenters will not
receive copies of all documents filed by other parties or issued by the
Commission (except for the mailing of environmental documents issued by
the Commission) and will not have the right to seek court review of the
Commission's final order.
    The Commission strongly encourages electronic filings of comments,
protests, and interventions via the Internet in lieu of paper. See 18
CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web
site (http://www.ferc.gov) under the ``e-Filing'' link.
    Comment Date: 5 p.m. Eastern Time on September 8, 2009.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-20371 Filed 8-24-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: October 5, 2009 (Volume 74, Number 191)]
[Notices]
[Page 51143]
[DOCID:fr05oc09-36]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings No. 1

September 25, 2009.

    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:

    Docket Numbers: RP09-1066-000.
    Applicants: Viking Gas Transmission Company.
    Description: Viking Gas Transmission Company submits Twenty-Seventh
Revised Sheet 5B of its FERC Gas Tariff, First Revised Volume 1, to be
effective 11/1/09.
    Filed Date: 09/23/2009.
    Accession Number: 20090923-0033.
    Comment Date: 5 p.m. Eastern Time on Monday, October 5, 2009.

    Docket Numbers: RP09-1067-000.
    Applicants: Northern Natural Gas Company.
    Description: Northern Natural Gas Company submits Fifth Revised
Sheet 67 et al. of its FERC Gas Tariff, Fifth Revised Volume 1, to be
effective 11/1/09.
    Filed Date: 09/23/2009.
    Accession Number: 20090923-0032.
    Comment Date: 5 p.m. Eastern Time on Monday, October 5, 2009.

    Docket Numbers: RP09-1068-000.
    Applicants: Northern Natural Gas Company.
    Description: Northern Natural Gas Company submits the 32nd Revised
Sheet 54 et al. of its FERC Gas Tariff, Fifth Revised Volume 1, to be
effective 12/1/09.
    Filed Date: 09/23/2009.
    Accession Number: 20090923-0034.
    Comment Date: 5 p.m. Eastern Time on Monday, October 5, 2009.

    Docket Numbers: RP09-1069-000.
    Applicants: Cheniere Creole Trail Pipeline, L.P.
    Description: Cheniere Creole Trail Pipeline, LP submits work paper
reflecting historical data in support of the continuation of the
Retainage Percentage of 0.15%.
    Filed Date: 09/23/2009.
    Accession Number: 20090924-0024.
    Comment Date: 5 p.m. Eastern Time on Monday, October 5, 2009.

    Docket Numbers: RP09-1070-000.
    Applicants: Dominion Transmission, Inc.
    Description: Dominion Transmission, Inc submits Second Revised
Sheet No 1301 et al. to FERC Gas Tariff, Third Revised Volume No 1.
    Filed Date: 09/24/2009.
    Accession Number: 20090924-0115.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 6, 2009.

    Any person desiring to intervene or to protest in any of the above
proceedings 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) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. 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. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://
www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also 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 dockets(s). For assistance
with any FERC Online service, please e-mail<EMAIL_ADDRESS>
or call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9-23855 Filed 10-2-09; 8:45 am]

BILLING CODE 6717-01-P


PAPERWORK REDUCTION ACT SUBMISSION Please read the instructions before completing this form. For additional forms or assistance in completing this form, contact your agency's Paperwork Clearance Officer. Send two copies of this form, the collection instrument to be reviewed, the Supporting Statement and any additional documentation to: Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street NW Washington, DC 20503.

1. Agency/ Subagency originating request U. S. EPA/ Office of air and radiation/ Office of Air Quality Planning and Standards 2. OMB control number b. X None a__ __ __ __  __ __ __ __ ( Comment reference number 2060 0513)

3. Type of information collection ( check one) a.

New collection b. G Revision of a currently approved collection c. G Extension of a currently approved collection d. G Reinstatement, without change, of a previously approved collection for which approval has expired e. G Reinstatement, with change, of a previously approved collection for which approval has expired f. G Existing collection in use without an OMB control number 4. Type of review requested ( check one) a.

Regular b. G Emergency  Approval requested by: / / c. G Delegated 5. Small entities Will this information collection have a significant economic impact on a substantial number of small entities? G Yes

No For b f, note item A2 of Supporting Statement Instructions 6. Requested expiration date a.

Three years from approval date b. G Other Specify: / /___

7. Title NESHAP for Stationary Combustion Turbines ( 40 CFR part 63, subpart YYYY) ( Final Rule)

8. Agency form number( s) ( If applicable) EPA ICR No. 1967.02 9. Keywords Clean Air Act, Air pollution control, NESHAP, Stationary combustion turbines, recordkeeping, reporting 10. Abstract The respondents to the information collection are owners or operators of facilities subject to the stationary combustion turbine NESHAP. The information is requested by the agency to determine compliance with the rule. The information will then be used by enforcement agencies to verify that sources subject to the standard are meeting the emission reductions mandated by the Clean Air Act.

11. Affected public ( Mark primary with " P" and all others that apply with " X") a. Individuals or households d. Farms b. P Business or other for profit e. X Federal Government c. Not for profit institutions f. X State, Local or Tribal Government 12. Obligation to respond ( Mark primary with " P" and all others that apply with " X") a. G Voluntary b. G Required to obtain or retain benefits c. P Mandatory 13. Annual reporting and recordkeeping hour burden a. Number of respondents 132 b. Total annual responses 237 1. Percentage of these responses collected electronically 0 % c. Total hours requested 2,448 d. Current OMB inventory 0 e. Difference 2,448 f. Explanation of difference 1. Program Change 2,448 2. Adjustment 0 14. Annual reporting and recordkeeping cost burden ( in thousands of dollars)

a. Total annualized capital/ startup costs $ 8 b. Total annual costs ( O& M) $ 0 c. Total annualized cost requested $ 8 d. Current OMB inventory $ 0 e. Difference $ 8 f. Explanation of difference 1. Program change $ 8 2. Adjustment $ 0 15. Purpose of information collection ( Mark Primary With " P" and all others that apply with " X") a. __ Application for benefits e. __ Program planning or management b. __ Program evaluation f. __ Research c. __ General purpose statistics g. P Regulatory or compliance d. __ Audit 16. Frequency of recordkeeping or reporting ( check all that apply) a.

Recordkeeping b. Q Third party disclosure c. Q Reporting 1. Q On occasion 2. Q Weekly 3. Q Monthly 4. Q Quarterly 5.

Semi annually 6. Q Annually 7. Q Biannually 8. Q Other ( describe)

17. Statistical methods Does this information collection employ statistical methods?

Q Yes

No 18. Agency contact ( person who can best answer questions regarding the content of this submission) Name: Sims Roy, EPA OAQPS ESD Phone: ( 919) 541 5263 OMB 83 I 10/ 95 19. Certification for Paperwork Reduction Act Submissions On behalf of this Federal agency, 1 certify that the collection of information encompassed by this request complies with' 5 CFR 1320.9.

NOTE: The text of 5 CFR 1320.9, and the related provisions of 5 CFR 1320.8( b)( 3), appear at the end of the instructions. The certification is to be made with reference to those regulatory provisions as set forth in the instructions.

The following is a summary of the topics, regarding the proposed collection of information, that the certification covers:

( a) It is necessary for the proper performance of agency functions;

( b) It avoids unnecessary duplication;

( c) It reduces burden on small entities;

( d) It uses plain, coherent, and unambiguous terminology that is understandable to respondents;

( e) Its implementation will be consistent and compatible with current reporting and recordkeeping practices;

( f) It indicates the retention periods for recordkeeping requirements;

( g) It informs respondents of the information called for under 5 CFR 1320.8( b)( 3): ( I) Why the information is being collected' ( ii) Use of information; ( iii) Burden estimate; ( iv) Nature of response ( voluntary, required for a benefit, or mandatory); ( v) Nature and extent of confidentiality; and ( vi) Need to display currently valid OMB control number;

( h) It was developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected ( see note in Item 19 of the instructions);

( I) It uses effective and efficient statistical survey methodology; and ( j) It makes appropriate use of information technology.

If you are unable to certify compliance with any of these provisions, identify the item below and explain the reason in Item 18 of the Supporting Statement.

Signature of Program Official Date Signature of Senior Official or designee Date OMB 83 I 10/ 95 Certification Requirement for Paperwork Reduction Act Submissions 5 CFR 1320.9 reads " As part of the agency submission to OMB of a proposed collection of information, the agency ( through the head of the agency, the Senior Official or their designee) shall certify ( and provide a record supporting such certification) that the proposed collection of information

"( a) is necessary for the proper performance of the functions of the agency, including that the information to be collected will have practical utility;

"( b) is not unnecessarily duplicative of information otherwise reasonably accessible to the agency;

"( c) reduces to the extent practicable and appropriate the burden on persons who shall provide information to or for the agency, including with respect to small entities, as defined in the Regulatory Flexibility Act 5 U. S. C § 601( 6)), the use of such techniques as:

"( 1) establishing differing compliance or reporting requirements or timetables that take into account the resources available to those who are to respond; "( 2) the clarification, consolidation, or simplification of compliance and reporting requirements; or collection of information , or any part thereof; "( 3) an exemption from coverage of the collection of information, or any part thereof;

"( d) is written using plain, coherent, and unambiguous terminology and is understandable to those who are to respond;

"( e) is to be implemented in ways consistent and compatible, to the maximum extent practicable, with the existing reporting and recordkeeping practices of those who are to respond;

"( f) indicates for each recordkeeping requirement the length of time persons are required to maintain the records specified;

"( g) informs potential respondents of the information called for under § 1320.8( b)( 3); [ see below]

"( h) has been developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected, including the processing of the information in a manner which shall enhance, where appropriate, the utility of the information to agencies and the public;

"( I) uses effective and efficient statistical survey methodology appropriate to the purpose for which the information is to be collected; and "( j) to the maximum extent practicable, uses appropriate information technology to reduce burden and improve data quality, agency efficiency and responsiveness to the public."

NOTE: 5 CFR 1320.8( b)( 3) requires that each collection of information:

"( 3) informs and provides reasonable notice to the potential persons to whom the collection of information is addressed of: "( I) the reasons the information is planned to be and/ or has been used to further the proper performance of the functions of the agency; "( ii) the way such information is planned to be and/ or has been used to further the proper performance of the functions of the agency; "( iii) an estimate, to the extent practicable, of the average burden of the collection ( together with a request that the public direct to the agency any comments concerning the accuracy of this burden estimate and any suggestions for reducing this burden); "( iv) whether responses to the collection of information are voluntary, required to obtain or retain a benefit ( citing authority), or mandatory ( citing authority); "( v) the nature and extent of confidentiality to be provided, if any ( citing authority); and "( vi) the fact that any agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number."

OMB 83 I ( Instructions) 10/ 95


[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Notices]
[Pages 54267-54269]
[FR Doc No: 2021-21321]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34386; 812-15183]

Optimum Fund Trust, et al.; Notice of Application

AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    Notice of an application under Section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from Section 15(c) of
the Act.

Applicants: Optimum Fund Trust, Delaware Group Adviser Funds, Delaware
Group Cash Reserve, Delaware Group Equity Funds I, Delaware Group
Equity Funds II, Delaware Group Equity Funds IV, Delaware Group Equity
Funds V, Delaware Group Foundation Funds, Delaware Group Global &
International Funds, Delaware Group Government Fund, Delaware Group
Income Funds, Delaware Group Limited-Term Government Funds, Delaware
Group State Tax-Free Income Trust, Delaware Group Tax Free Fund,
Delaware Pooled Trust, Delaware VIP Trust, Voyageur Insured Funds,
Voyageur Intermediate Tax Free Funds, Voyageur Mutual Funds, Voyageur
Mutual Funds II, Voyageur Mutual Funds III, and Voyageur Tax Free Funds
(each, a ``Trust''), each a Delaware statutory trust registered under
the Act as an open-end management investment company

offering one or more series, and Delaware Management Company, a series
of Macquarie Investment Management Business Trust, a Delaware statutory
trust registered as an investment adviser under the Investment Advisers
Act of 1940 (``Adviser'') that serves an investment adviser to such
series (collectively the ``Applicants'').

Summary of Application: The requested exemption would permit each
Trust's board of trustees (the ``Board'') to approve new sub-advisory
agreements and material amendments to existing sub-advisory agreements
for the Subadvised Series (as defined below), without complying with
the in-person meeting requirement of Section 15(c) of the Act.

Filing Dates: The application was filed on December 10, 2021 and
amended on May 14, 2021.

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 emailing the Commission's
Secretary at<EMAIL_ADDRESS>and serving Applicants with a
copy of the request by email. Hearing requests should be received by
the Commission by 5:30 p.m. on October 22, 2021, 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 reason for the request, and the issues contested.
Persons who wish to be notified of a hearing may request notification
by emailing the Commission's Secretary.

ADDRESSES: The Commission<EMAIL_ADDRESS>Applicants: Bruce
G. Leto, Esq. at<EMAIL_ADDRESS>and Michael W. Mundt, Esq., at
<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Keri E. Riemer, Senior Counsel, at
(202) 551-8695, or Marc Mehrespand, Branch Chief, at<PHONE_NUMBER>
(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 website by searching for the file number or an Applicant
using the ``Company'' name box, at http://www.sec.gov/search/search.htm
or by calling<PHONE_NUMBER>.

I. Requested Exemptive Relief

    1. Applicants request an exemption from Section 15(c) of the Act to
permit the Board,\1\ including the Independent Board Members, \2\ to
approve an agreement (each a ``Sub-Advisory Agreement'') pursuant to
which a sub-adviser manages all or a portion of the assets of one or
more of the series, or a material amendment thereto (a ``Sub-Adviser
Change''), without complying with the in-person meeting requirement of
Section 15(c).\3\ Under the requested relief, the Independent Board
Members could instead approve a Sub-Adviser Change at a meeting at
which members of the Board participate by any means of communication
that allows them to hear each other simultaneously during the meeting.
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    \1\ The term ``Board'' also includes the board of trustees or
directors of a future Subadvised Series (as defined below).
    \2\ The term ``Independent Board Members'' means the members of
the Board who are not parties to the Sub-Advisory Agreement (as
defined below), or ``interested persons'', as defined in Section
2(a)(19) of the Act, of any such party.
    \3\ Applicants do not request relief that would permit the Board
and the Independent Board Members to approve renewals of Sub-
Advisory Agreements at non-in-person meetings.
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    2. Applicants request that the relief apply to Applicants, as well
as to any future series of each Trust and any other existing or future
registered open-end management investment company or series thereof
that intends to rely on the requested order in the future and that: (i)
is advised by the Adviser; \4\ (ii) uses the multi-manager structure
described in the application; and (iii) complies with the terms and
conditions of the application (each, a ``Subadvised Series'').\5\
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    \4\ The term ``Adviser'' includes (i) the Adviser or its
successors and (ii) any entity controlling, controlled by, or under
common control with, the Adviser or its successors. For the purposes
of the requested order, ``successor'' is limited to an entity
resulting from a reorganization into another jurisdiction or a
change in the type of business organization.
    \5\ All registered open-end investment companies that currently
intend to rely on the requested order are named as applicants. Any
entity that relies on the requested order will do so only in
accordance with the terms and conditions contained in the
application.
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II. Management of the Subadvised Series

    3. The Adviser will serve as the investment adviser to each
Subadvised Series pursuant to an investment advisory agreement with
each Trust (each an ``Investment Management Agreement''). The Adviser,
subject to the oversight of the Board, will provide continuous
investment management services to each Subadvised Series. Applicants
are not seeking an exemption from the Act with respect to the
Investment Management Agreements.
    4. Applicants state that the Subadvised Series may seek to provide
exposure to multiple strategies across various asset classes, thus
allowing investors to more easily access such strategies without the
additional transaction costs and administrative burdens of investing in
multiple funds to seek to achieve comparable exposures.
    5. To that end, the Adviser may achieve its desired exposures to
specific strategies by allocating discrete portions of the Subadvised
Series' assets to various sub-advisers. Consistent with the terms of
each Investment Management Agreement and subject to the Board's
approval,\6\ the Adviser would delegate management of all or a portion
of the assets of a Subadvised Series to a sub-adviser.\7\ Each sub-
adviser would be an ``investment adviser'' to the Subadvised Series
within the meaning of Section 2(a)(20) of the Act.\8\ The Adviser would
retain overall responsibility for the management and investment of the
assets of each Subadvised Series.
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    \6\ A Sub-Advisory Agreement may also be subject to approval by
a Subadvised Series' shareholders. Applicants currently rely on a
multi-manager exemptive order to enter into and materially amend
Sub-Advisory Agreements without obtaining shareholder approval. See
Delaware Management Business Trust, et al., Investment Company Act
Release Nos. 32395 (Dec. 19, 2016) (notice) and 32423 (Jan. 17,
2017) (order).
    \7\ A sub-adviser may manage the assets of a Subadvised Series
directly or provide the Adviser with model portfolio or investment
recommendation(s) that would be utilized in connection with the
management of a Subadvised Series.
    \8\ Each sub-adviser would be registered with the Commission as
an investment adviser under the Advisers Act or not subject to such
registration.
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III. Applicable Law

    6. Section 15(c) of the Act prohibits a registered investment
company having a board from entering into, renewing or performing any
contract or agreement whereby a person undertakes regularly to act as
an investment adviser (including a sub-adviser) to the investment
company, unless the terms of such contract or agreement and any renewal
thereof have been approved by the vote of a majority of the investment
company's board members who are not parties to such contract or
agreement, or interested persons of any such party, cast in person at a
meeting called for the purpose of voting on such approval.
    7. 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 provisions of the Act, or any rule thereunder, if
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 state that
the requested relief meets this standard for the reasons discussed
below.

IV. Arguments in Support of the Requested Relief

    8. Applicants assert that boards of registered investment
companies, including the Board, typically hold in-person meetings on a
quarterly basis. Applicants state that during the three to four month
period between board meeting dates, market conditions may change or
investment opportunities may arise such that the Adviser may wish to
make a Sub-Adviser Change. Applicants also state that at these moments
it may be impractical, and/or costly to hold an additional in-person
Board meeting, especially given the geographic diversity of Board
members and the additional cost of holding in-person meetings.
    9. As a result, Applicants believe that the requested relief would
allow the Subadvised Series to operate more efficiently. In particular,
Applicants assert that without the delay inherent in holding in-person
Board meetings (and the attendant difficulty of obtaining the necessary
quorum for, and the additional costs of, an unscheduled in-person Board
meeting), the Subadvised Series would be able to act quicker and with
less expense to add or replace sub-advisers when the Board and the
Adviser believe that a Sub-Adviser Change would benefit the Subadvised
Series.
    10. Applicants also note that the in-person meeting requirement in
Section 15(c) of the Act was designed to prohibit absentee approval of
advisory agreements. Applicants state that condition 1 to the requested
relief is designed to avoid such absentee approval by requiring that
the Board approve a Sub-Adviser Change at a meeting where all
participating Board members can hear each other and be heard by each
other during the meeting.\9\
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    \9\ Applicants state that technology that includes visual
capabilities will be used unless unanticipated circumstances arise.
Applicants also state that the Board could not rely upon the relief
to approve a Sub-Advisory Agreement by written consent or another
form of absentee approval by the Board.
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    11. Applicants, moreover, represent that the Board would conduct
any such non-in-person consideration of a Sub-Advisory Agreement in
accordance with its typical process for approving Sub-Advisory
Agreements. Consistent with Section 15(c) of the Act, the Board would
request and evaluate such information as may reasonably be necessary to
evaluate the terms of any Sub-Advisory Agreement, and the Adviser and
sub-adviser would provide such information.
    12. Finally, Applicants note that if one or more Board members
request that a Sub-Adviser Change be considered in-person, then the
Board would not be able to rely on the relief and would have to
consider the Sub-Adviser Change at an in-person meeting.

V. Applicants' Conditions

    Applicants agree that any order granting the requested relief will
be subject to the following conditions:
    1. The Independent Board Members will approve the Sub-Adviser
Change at a non-in-person meeting in which Board members may
participate by any means of communication that allows those Board
members participating to hear each other simultaneously during the
meeting.
    2. Management will represent that the materials provided to the
Board for the non-in-person meeting include the same information the
Board would have received if a Sub-Adviser Change were sought at an in-
person Board meeting.
    3. The notice of the non-in-person meeting will explain the need
for considering the Sub-Adviser Change at a non-in-person meeting. Once
notice of the non-in-person meeting to consider a Sub-Adviser Change is
sent, Board members will be given the opportunity to object to
considering the Sub-Adviser Change at a non-in-person Board meeting. If
a Board member requests that the Sub-Adviser Change be considered in-
person, the Board will consider the Sub-Adviser Change at an in-person
meeting, unless such request is rescinded.
    4. A Subadvised Series' ability to rely on the requested relief
will be disclosed in the Subadvised Series' registration statement.
    5. In the event that the Commission adopts a rule under the Act
providing substantially similar relief to that in the order requested
in the application, the requested order will expire on the effective
date of that rule.
    For the Commission, by the Division of Investment Management, under
delegated authority.

    Dated: September 27, 2021.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-21321 Filed 9-29-21; 8:45 am]
BILLING CODE 8011-01-P