[Federal Register: January 5, 2007 (Volume 72, Number 3)]
[Notices]
[Page 591-596]
[DOCID:fr05ja07-64]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 27612; 813-356]

Opal Private Equity Fund, L.P. et al.; Notice of Application

December 27, 2006.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under sections 6(b) and
6(e) of the Investment Company Act of 1940 (the ``Act'') granting an
exemption from all provisions of the Act, except section 9 and sections
36 through 53, and the rules and regulations under the Act. With
respect to sections 17 and 30 of the Act, and the rules and regulations
thereunder, and rule 38a-1 under the Act, the exemption is limited as
set forth in the application.

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Summary of the Application: Applicants request an order to exempt
certain investment funds formed for the benefit of eligible current and
former employees of Schottenstein, Zox & Dunn Co., L.P.A., and its
affiliates from certain provisions of the Act. Each fund will be an
``employees' securities company'' as defined in section 2(a)(13) of the
Act.

Applicants: Opal Private Equity Fund, LP (the ``Investment Fund'') and
Schottenstein, Zox & Dunn Co., L.P.A. (together with any business
organization that results from a reorganization of Schottenstein, Zox &
Dunn Co., L.P.A., into a different type of business organization or
into an entity organized under the laws of another jurisdiction,
``SZD'').

Filing Dates: The application was filed on December 30, 2004 and
amended on December 22, 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 January 22, 2007 and should be accompanied by proof of service on
applicants, in the form of an affidavit or, for lawyers, a certificate
of service. Hearing requests should state the nature of the writer's
interest, the reason for the request, and the issues contested. Persons
who wish to be notified of a hearing may request notification by
writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F St.,
NE., Washington, DC 20549-9303. Applicants, 250 West St., Columbus,
Ohio 43215-5020.

FOR FURTHER INFORMATION CONTACT: Marilyn Mann, Senior Counsel, at (202)
551-6813, 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
Commission's Public Reference Branch,

100 F St., NE., Washington, DC 20549-0102 (tel.<PHONE_NUMBER>).

Applicants' Representations

    1. SZD is a law firm incorporated under the laws of the State of
Ohio as a legal professional association. SZD and its ``affiliates,''
as defined in rule 12b-2 under the Securities Exchange Act of 1934 (the
``Exchange Act''), are referred to collectively as the ``SZD Group''
and individually as a ``SZD entity.'' The shareholders of SZD are
referred to as ``Principals.''
    2. The Investment Fund is a Delaware limited partnership. The
applicants may in the future offer additional pooled investment
vehicles identical in all material respects to the Investment Fund
(other than investment objectives and strategies) (the ``Subsequent
Funds'') (together, the Investment Fund and the Subsequent Funds are
referred to as the ``Funds''). The applicants anticipate that each
Subsequent Fund will also be structured as a limited partnership,
although a Subsequent Fund could be structured as a limited liability
company, corporation, trust or other business organization formed as an
``employees' securities company'' within the meaning of section
2(a)(13) of the Act. The Funds will operate as non-diversified, closed-
end management investment companies. The Funds will be established to
enable the Principals and certain attorney employees of SZD Group to
participate in certain investment opportunities that come to the
attention of SZD Group. Participation as investors in the Funds will
allow the Eligible Investors, as defined below, to diversify their
investments and to have the opportunity to participate in investments
that might not otherwise be available to them or that might be beyond
their individual means.
    3. Opal Private Equity, Inc., a wholly-owned subsidiary of SZD,
will serve as the general partner (the ``General Partner'') of each
Fund. The Funds will have one or more investment committees
(``Investment Committees''), each member of which shall be a Principal.
The General Partner or SZD shall appoint the members of each Investment
Committee. The General Partner or any person involved in the operation
of the Funds will register as an investment adviser if required under
the Investment Advisers Act of 1940, or the rules under that Act.
    4. Interests in the Funds (``Interests'') will be offered without
registration in reliance on section 4(2) of the Securities Act of 1933
(the ``Securities Act''), Regulation D under the Securities Act or rule
701 under the Securities Act, or any successor rule, and will be sold
solely to Eligible Investors. Eligible Investors consist of ``Eligible
Employees,'' ``Qualified Investment Vehicles,'' each as defined below,
and SZD entities. The term ``Fund Investors'' refers to Eligible
Investors who invest in the Funds. Prior to offering Interests in a
Fund to an individual, the General Partner must reasonably believe that
the individual is a sophisticated investor capable of understanding and
evaluating the risks of participating in the Fund without the benefit
of regulatory safeguards. An ``Eligible Employee'' is a person who is,
at the time of investment, a current Principal of SZD or lawyer
employed by SZD who (a) meets the standards of an ``accredited
investor'' set forth in rule 501(a)(5) or rule 501(a)(6) of Regulation
D under the Securities Act, (b) is one of 35 or fewer lawyers employed
by SZD who meets certain requirements (``Category 2 investors''), or
(c) is a lawyer employed by SZD who purchases Interests pursuant to an
offering under rule 701 under the Securities Act (``rule 701'')
(``Category 3 investors'').
    5. Each Category 2 investor will be a lawyer employed by SZD, who
meets the sophistication requirements set forth in rule 506(b)(2)(ii)
of Regulation D under the Securities Act \1\ and who (a) has a minimum
of 3 years of business and/or professional experience, has had
compensation of at least $150,000 in the preceding 12 month period, and
has a reasonable expectation of compensation of at least $150,000 in
each of the 2 immediately succeeding 12 month periods, or (b) is a
``knowledgeable employee,'' as defined in rule 3c-5 under the Act, of
the Fund (with the Fund treated as though it were a ``Covered Company''
for purposes of the rule). In addition, a Category 2 investor
qualifying under (a) above will not be permitted to invest in any
calendar or fiscal year (as determined by SZD) more than 10% of his or
her income from all sources for the immediately preceding calendar or
fiscal year in one or more Funds.
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    \1\ Some or all Category 2 investors may purchase their
Interests in an offering under rule 701 rather than under Regulation
D.
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    6. Each Category 3 investor will be a lawyer employed by SZD who
reasonably expects to have compensation of at least $120,000 in the
next 12 months and who has a reasonable expectation of compensation of
at least $150,000 in each of the 2 immediately succeeding 12 month
periods. In addition, any Category 3 investor who is not a Principal
will not be permitted to invest in any calendar or fiscal year (as
determined by SZD) more than 10% (or 5%, if he or she has been employed
as a lawyer for less than 3 years) of his or her reasonably expected
income from all sources for that year in one or more Funds. Category 3
investors will purchase Interests pursuant to an offering under rule
701. Prior to receiving a subscription agreement from any potential
Fund Investor pursuant to an offering in reliance on rule 701, SZD will
make available at no charge to potential Fund Investors the services of
an independent third party (``Financial Consultant'') qualified to
provide advice concerning the appropriateness of investing in a Fund.
    7. A Qualified Investment Vehicle is a trust or other entity the
sole beneficiaries of which are Eligible Employees or their Immediate
Family Members or the settlors and trustees of which consist of
Eligible Employees or Eligible Employees together with Immediate Family
Members.\2\ Immediate Family Members include any parent, child, spouse
of a child, spouse, brother or sister, and includes any step and
adoptive relationships. A Qualified Investment Vehicle must be either
(a) an accredited investor as defined in rule 501(a) of Regulation D or
(b) an entity for which an Eligible Employee is a settlor and principal
investment decision-maker.\3\
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    \2\ A Qualified Investment Vehicle is not permitted to
participate in a rule 701 offering. SZD or the General Partner may,
however, in their discretion and in compliance with rule 701, permit
an Eligible Employee who purchases Interests in the Fund in a rule
701 offering to transfer some or all of those Interests to a
Qualified Investment Vehicle.
    \3\ If a Qualified Investment Vehicle is an entity other than a
trust, the reference to ``settlor'' shall be construed to mean a
person who created the vehicle, alone or together with others, and
who contributed funds or other assets to the vehicle.
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    8. Each Fund may issue its Interests in series (each, a ``Series'
and collectively, the ``Series'') with new Series of Interests being
offered from time to time. Each Series may be further divided into two
or more separate classes (each, a ``Class''), having such terms and
conditions as the General Partner may establish. Each Series will
represent an interest in some or all of those Fund investments made by
the Fund during a specified period of time (the ``Investment Period'').
Following the end of a Series' Investment Period, no new investments
will be made for that Series, although following a Series' Investment
Period additional money may be contributed to an existing investment.
    9. In order to comply with the requirements of rule 701, at the
beginning of each Investment Period,

the Fund will accept capital contributions or irrevocable commitments
for the relevant Series from those Eligible Investors investing
pursuant to Regulation D (the ``Regulation D Investors''), and then
prepare a balance sheet as required by rule 701. The Fund may then
receive and accept subscription agreements, and thereafter accept
capital contributions or commitments for that Series from those
Eligible Investors investing pursuant to rule 701 (the ``Rule 701
Investors''). The capital contributions and commitments of the Rule 701
Investors, in the aggregate, will not exceed 15% of the total amount of
capital contributions and irrevocable commitments received from the
Regulation D Investors. Because the capital commitments of the Rule 701
Investors may be funded, in whole or in part, through periodic payroll
deductions, the Rule 701 Investors may from time to time contribute
money prior to the time the Fund is able to invest that money. It
currently is anticipated that any such amounts will be placed in a
separate bank or escrow account, pending the delivery of the money to
the Fund for investment or other authorized purposes. No more than
approximately 13% (i.e., 15% of the total amount of capital
contributions and irrevocable commitments received from the Regulation
D Investors) of all Fund investments and other authorized expenditures
for each Series will at any time be paid for out of money contributed
to the Fund by Rule 701 Investors.
    10. The terms of a Fund will be fully disclosed in the private
placement memorandum of the Fund, and each Eligible Investor will
receive a private placement memorandum and the Fund's limited
partnership agreement (or other organizational documents) prior to his
or her investment in the Fund. Each Fund will send its Fund Investors
annual reports, which will contain audited financial statements with
respect to those Series in which the Fund Investor has Interests, as
soon as practicable after the end of each fiscal year. In addition, as
soon as practicable after the end of each fiscal year, the Funds will
send a report to each Fund Investor setting forth such tax information
as shall be necessary for the preparation by the Fund Investor of his
or her federal and state tax returns.
    11. Fund Investors will be permitted to transfer their Interests
only by operation of law, to a receiver or trustee in bankruptcy for
that Fund Investor, to the Fund Investor's estate in the event of his
or her death, or with the express consent of the General Partner. The
General Partner does not anticipate giving such consent. No person may
become a transferee or substitute Fund Investor unless that person is a
member of one of the classes of persons listed in section 2(a)(13) of
the Act, except that a legal representative or executor may hold an
Interest in order to settle the estate of a decedent or bankrupt or for
similar purposes. No fee of any kind will be charged in connection with
the sale of Interests.
    12. A Fund Investor's Interests may be subject to repurchase or
cancellation if: (a) The Fund Investor ceases to be an Eligible
Investor; (b) the Fund Investor is no longer deemed to be able to bear
the economic risk of investment in a Fund; (c) adverse tax consequences
were to inure to the Fund were a particular Fund Investor to remain; or
(d) the continued membership of the Fund Investor would violate
applicable law or regulations. In addition, SZD reserves the right to
impose vesting provisions on a Fund Investor's investments in a Fund.
In an investment program that provides for vesting provisions, all or a
portion of a Fund Investor's Interests will be treated as unvested, and
vesting will occur through the passage of a specified period of time.
To the extent a Fund Investor's Interests become ``vested,'' the
termination of such Fund Investor's association or employment with SZD
will not affect the Fund Investor's rights with respect to the vested
Interests. If a Fund Investor's employment with SZD terminates because
of (a) death, (b) total and permanent disability as defined by SZD's
group insurance policy or (c) retirement from the practice of law upon
or after such Fund Investor attaining the age of fifty-five (each a
``Qualifying Termination''), then such Fund Investor shall be fully
vested in his or her Interests in the Fund. If a Fund Investor's
employment with SZD terminates for reasons other than a Qualifying
Termination, then such Fund Investor's Interests that are unvested
shall be subject to repurchase or cancellation. Upon any repurchase or
cancellation of all or a portion of a Fund Investor's Interests, a Fund
will at a minimum pay to the Fund Investor the lesser of (a) the amount
actually paid by the Fund Investor to acquire the Interests less the
amount of any distributions received by that Fund Investor from the
Fund (plus interest at or above the prime rate, as determined by the
General Partner) and (b) the fair market value of the Interests
determined at the time of repurchase or cancellation, as determined in
good faith by the General Partner. Any interest owed to a Fund Investor
pursuant to (a) above will begin to accrue at the end of the Investment
Period.
    13. With respect to any Interests that have vested, the terminated
Fund Investor will have the right to elect (a) to continue as a Fund
Investor, or (b) to have the fair market value, as determined in good
faith by the General Partner, of such terminated Fund Investor's
Interests determined as of the date of termination. If the election
described in (b) of the preceding sentence is made, the value of the
vested Interests of the terminated Fund Investor shall be deemed to
have been repurchased by the relevant Series of the Fund and payment
shall be made to the terminated Fund Investor in five consecutive
annual payments, with interest at or above the prime rate, as
determined by the General Partner, unless the General Partner
determines to postpone payment until a liquidity event takes place
allowing the Fund to make payment of the terminated Fund Investor. In
no event will the terminated Fund Investor be paid later than the date
that all Fund Investors in the Series receive their liquidating
distribution. The General Partner may accelerate any payments due to a
terminated Fund Investor. The General Partner has the right to amend
the limited partnership agreement to allow for less restrictive vesting
terms.
    14. SZD may be reimbursed by a Fund for reasonable and necessary
out-of-pocket costs directly associated with the organization and
operation of the Funds. There will be no allocation of any of SZD's
operating expenses to a Fund. In addition, SZD may allocate to a Series
any out-of-pocket expenses specifically attributable to the
organization and operation of that Series. No separate management fee
will be charged to a Fund by the General Partner, and no compensation
will be paid by a Fund or by Fund Investors to the General Partner for
its services.
    15. SZD may in its discretion advance funds to Eligible Investors
for the purpose of making their capital contributions. SZD currently
expects that no interest will be charged on such loans, but SZD
reserves the right to charge interest on such loans in the future. The
interest rate charged on such loans will not exceed the prime rate.
    16. The Funds may borrow from SZD Group, Principals, or a bank or
other financial institution, provided that a Fund will not borrow from
any person if the borrowing would cause any person not named in section
2(a)(13) of the Act to own outstanding securities of the Fund (other
than short-term paper).

Any borrowings by a Fund will be non-recourse other than to SZD or an
SZD entity. If SZD or an SZD entity or a Principal makes a loan to the
Funds, the interest rate on the loan will be no less favorable to the
Funds than the rate that could be obtained on an arm's length basis.
    17. No Fund will acquire any security issued by a registered
investment company if immediately after the acquisition the Fund would
own more than 3% of the outstanding voting stock of the registered
investment company.

Applicants' Legal Analysis

    1. Section 6(b) of the Act provides, in part, that the Commission
will exempt employees' securities companies from the provisions of the
Act to the extent that the exemption is consistent with the protection
of investors. Section 6(b) provides that the Commission will consider,
in determining the provisions of the Act from which the company should
be exempt, the company's form of organization and capital structure,
the persons owning and controlling its securities, the price of the
company's securities and the amount of any sales load, how the
company's funds are invested, and the relationship between the company
and the issuers of the securities in which it invests. Section 2(a)(13)
defines an employees' securities company as any investment company all
of whose securities (other than short-term paper) are beneficially
owned (a) by current or former employees, or persons on retainer, of
one or more affiliated employers, (b) by immediate family members of
such persons, or (c) by such employer or employers together with any of
the persons in (a) or (b).
    2. Section 7 of the Act generally prohibits investment companies
that are not registered under section 8 of the Act from selling or
redeeming their securities. Section 6(e) provides that, in connection
with any order exempting an investment company from any provision of
section 7, certain provisions of the Act, as specified by the
Commission, will be applicable to the company and other persons dealing
with the company as though the company were registered under the Act.
Applicants request an order under sections 6(b) and 6(e) of the Act
exempting the Funds from all provisions of the Act, except section 9
and sections 36 through 53, and the rules and regulations under the
Act. With respect to sections 17 and 30 of the Act, and the rules and
regulations thereunder, and rule 38a-1 under the Act, the exemption is
limited as set forth in the application.
    3. Section 17(a) generally prohibits any affiliated person of a
registered investment company, or any affiliated person of an
affiliated person, acting as principal, from knowingly selling or
purchasing any security or other property to or from the company.
Applicants request an exemption from section 17(a) to permit a Fund to:
(a) Purchase, from SZD or any affiliated person thereof, securities or
interests in properties previously acquired for the account of SZD or
any affiliated person thereof; (b) sell, to SZD or any affiliated
person thereof, securities or interests in properties previously
acquired by the Funds; and (c) purchase interests in any company or
other investment vehicle (i) in which SZD owns 5% or more of the voting
securities, or (ii) that otherwise is an affiliated person of the Fund
(or an affiliated person of such a person) or an affiliated person of
SZD.
    4. Applicants state that an exemption from section 17(a) is
consistent with the protection of investors and the purposes of the
Act. Applicants state that the Fund Investors will be informed in the
Fund's private placement memorandum of the possible extent of the
Fund's dealings with SZD or any affiliated person thereof. Applicants
also state that, as financially sophisticated professionals, Fund
Investors will be able to evaluate the attendant risks. Applicants
assert that the community of interest among the Fund Investors and SZD
will provide the best protection against any risk of abuse.
    5. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
any affiliated person or principal underwriter of a registered
investment company, or any affiliated person of an affiliated person or
principal underwriter, acting as principal, from participating in any
joint arrangement with the company unless authorized by the Commission.
Applicants request relief to permit affiliated persons of each Fund, or
affiliated persons of any of these persons, to participate in any joint
arrangement in which the Fund is a participant. Joint transactions in
which a Fund may participate could include the following: (a) an
investment by one or more Funds in a security in which SZD or its
affiliated person, or another Fund, is a participant, or with respect
to which SZD or an affiliated person is entitled to receive fees
(including, but not limited to, legal fees, placement fees, investment
banking fees, brokerage commissions, or other economic benefits or
interests); and (b) an investment by one or more Funds in a security in
which an affiliate is or may become a participant.
    6. Applicants state that strict compliance with section 17(d) would
cause the Funds to forego investment opportunities simply because a
Fund Investor, SZD or other affiliates of the Fund also had made or
contemplated making a similar investment. In addition, because
investment opportunities of the types considered by the Funds often
require that each participant make available funds in an amount that
may be substantially greater than that available to the investor alone,
there may be certain attractive opportunities of which a Fund may be
unable to take advantage except as a co-participant with other persons,
including affiliates. Applicants note that, in light of SZD's purpose
of establishing the Funds so as to reward Eligible Investors and to
attract highly qualified personnel to SZD, the possibility is minimal
that an affiliated party investor will enter into a transaction with a
Fund with the intent of disadvantaging the Fund. Finally, applicants
contend that the possibility that a Fund may be disadvantaged by the
participation of an affiliate in a transaction will be minimized by
compliance with the lockstep procedures described in condition 4 below.
Applicants assert that the flexibility to structure co-investments and
joint investments will not involve abuses of the type section 17(d) and
rule 17d-1 were designed to prevent.
    7. Section 17(f) of the Act designates the entities that may act as
investment company custodians, and rule 17f-2 allows an investment
company to act as self-custodian, subject to certain requirements.
Applicants request an exemption from section 17(f) and rule 17f-2 to
permit the following exceptions from the requirements of rule 17f-2:
(a) A Fund's investments may be kept in the locked files of SZD or of a
Principal; (b) for purposes of paragraph (d) of the rule, (i) employees
of SZD will be deemed employees of the Funds, (ii) officers of the
General Partner and the General Partner of a Fund will be deemed to be
officers of the Fund, and (iii) the General Partner of a Fund will be
deemed to be the board of directors of the Fund; and (c) in place of
the verification procedure under paragraph (f) of the rule,
verification will be effected quarterly by two employees of SZD.
Applicants assert that the securities held by the Funds are most
suitably kept in SZD's files, where they can be referred to as
necessary.
    8. Section 17(g) and rule 17g-1 generally require the bonding of
officers and employees of a registered investment company who have
access to its securities or funds. Rule 17g-1 requires that a majority
of directors who are not interested persons (``disinterested
directors'') take certain

actions and give certain approvals relating to fidelity bonding.
Paragraph (g) of rule 17g-1 sets forth certain materials relating to
the fidelity bond that must be filed with the Commission and certain
notices relating to the fidelity bond that must be given to each member
of the investment company's board of directors. Paragraph (h) of rule
17g-1 provides that an investment company must designate one of its
officers to make the filings and give the notices required by paragraph
(g). Paragraph (j) of rule 17g-1 exempts a joint insured bond provided
and maintained by an investment company and one or more other parties
from section 17(d) of the Act and the rules thereunder. Rule 17g-
1(j)(3) requires that the board of directors of an investment company
satisfy the fund governance standards defined in rule 0-1(a)(7).
Applicants request an exemption from section 17(g) and rule 17g-1 to
the extent necessary to permit each Fund to comply with rule 17g-1
without the necessity of having a majority of the disinterested
directors take such action and make such approvals as are set forth in
the rule. Specifically, each Fund will comply with rule 17g-1 by having
the General Partner take such actions and make such approvals as are
set forth in rule 17g-1. Applicants state that, because the General
Partner will be an interested person of the Fund, a Fund could not
comply with rule 17g-1 without the requested relief. Applicants also
request an exemption from the requirements of rule 17g-1(g) and (h)
relating to the filing of copies of fidelity bonds and related
information with the Commission and the provision of notices to the
board of directors and from the requirements of rule 17g-1(j)(3).
Applicants believe the filing requirements are burdensome and
unnecessary as applied to the Funds. The General Partner will maintain
the materials otherwise required to be filed with the Commission by
rule 17g-1(g) and agree that all such material will be subject to
examination by the Commission and its staff. The General Partner will
designate a person to maintain the records otherwise required to be
filed with the Commission under paragraph (g) of the rule. Applicants
also state that the notices otherwise required to be given to the board
of directors would be unnecessary as the Funds will not have boards of
directors. The Funds will comply with all other requirements of rule
17g-1.
    9. Section 17(j) and paragraph (b) of rule 17j-1 make it unlawful
for certain enumerated persons to engage in fraudulent or deceptive
practices in connection with the purchase or sale of a security held or
to be acquired by a registered investment company. Rule 17j-1 also
requires that every registered investment company adopt a written code
of ethics and that every access person of a registered investment
company report personal securities transactions. Applicants request an
exemption from the requirements of rule 17j-1, except for the anti-
fraud provisions of paragraph (b), because they are unnecessarily
burdensome as applied to the Funds.
    10. Applicants request an exemption from the requirements in
sections 30(a), 30(b) and 30(e), and the rules under those sections,
that registered investment companies prepare and file with the
Commission and mail to their shareholders certain periodic reports and
financial statements. Applicants contend that the forms prescribed by
the Commission for periodic reports have little relevance to the Funds
and would entail administrative and legal costs that outweigh any
benefit to the Fund Investors. Applicants request exemptive relief to
the extent necessary to permit each Fund to report annually to its Fund
Investors. Applicants also request an exemption from section 30(h) to
the extent necessary to exempt the General Partner of each Fund and any
other persons who may be deemed members of an advisory board of a Fund
from filing Forms 3, 4 and 5 under section 16 of the Exchange Act with
respect to their ownership of Interests in the Fund. Applicants assert
that, because there will be no trading market and the transfers of
Interests will be severely restricted, these filings are unnecessary
for the protection of investors and burdensome to those required to
make them.
    11. Rule 38a-1 requires investment companies to adopt, implement
and periodically review written policies and procedures reasonably
designed to prevent violation of the federal securities laws and to
appoint a chief compliance officer. The Funds will comply with rule
38a-1(a), (c) and (d), except that (a) since the Funds do not have
boards of directors, the board of directors of the General Partner will
fulfill the responsibilities assigned to a Fund's board of directors
under the rule, and (b) since the board of directors of the General
Partner does not have any disinterested members, approval by a majority
of the disinterested board members required by rule 38a-1 will not be
obtained.

Applicants' Conditions

    The applicants agree that any order granting the requested relief
will be subject to the following conditions:

Fund Operations

    1. Each proposed transaction to which a Fund is a party otherwise
prohibited by section 17(a) or section 17(d) and rule 17d-1 (each, a
``Section 17 Transaction'') will be effected only if the General
Partner determines that: (a) The terms of the Section 17 Transaction,
including the consideration to be paid or received, are fair and
reasonable to the Fund Investors of the participating Fund and do not
involve overreaching of the Fund or its Fund Investors on the part of
any person concerned; and (b) the Section 17 Transaction is consistent
with the interests of the Fund Investors of the participating Fund, the
Fund's organizational documents and the Fund's reports to its Fund
Investors.
    In addition, the General Partner will record and preserve a
description of such Section 17 Transactions, its findings, the
information or materials upon which its findings are based and the
basis therefor. All such records will be maintained for the life of a
Fund and at least five years thereafter, and will be subject to
examination by the Commission and its staff. All such records will be
maintained in an easily accessible place for at least the first two
years.
    2. If purchases or sales are made by a Fund from or to an entity
affiliated with the Fund by reason of a Principal or employee of the
SZD Group (a) serving as an officer, director, general partner or
investment adviser of the entity, or (b) having a 5% or more investment
in the entity, such individual will not participate in the Fund's
determination of whether or not to effect the purchase or sale.
    3. The General Partner will adopt, and periodically review and
update, procedures designed to ensure that reasonable inquiry is made,
prior to the consummation of any Section 17 Transaction, with respect
to the possible involvement in the transaction of any affiliated person
or promoter of or principal underwriter for the Funds, or any
affiliated person of such a person, promoter, or principal underwriter.
    4. The General Partner will not make on behalf of a Fund any
investment in which a Co-Investor, as defined below, has or proposes to
acquire the same class of securities of the same issuer, where the
investment involves a joint enterprise or other joint arrangement
within the meaning of rule 17d-1 in which the Fund and the Co-Investor
are

participants, unless any such Co-Investor, prior to disposing of all or
part of its investment, (a) gives the General Partner sufficient, but
not less than one day's, notice of its intent to dispose of its
investment, and (b) refrains from disposing of its investment unless
the participating Fund holding such investment has the opportunity to
dispose of its investment prior to or concurrently with, on the same
terms as, and on a pro rata basis with the Co-Investor. The term ``Co-
Investor'' with respect to any Fund means any person who is (a) an
``affiliated person'' (as defined in section 2(a)(3) of the Act) of the
Fund; (b) the SZD Group; (c) a Principal, lawyer, or employee of the
SZD Group; (d) an investment vehicle offered, sponsored, or managed by
SZD or an affiliated person of SZD; or (e) an entity in which an SZD
entity acts as a general partner or has a similar capacity to control
the sale or other disposition of the entity's securities.
    The restrictions contained in this condition, however, shall not be
deemed to limit or prevent the disposition of an investment by a Co-
Investor: (a) To its direct or indirect wholly-owned subsidiary, to any
company (a ``parent'') of which the Co-Investor is a direct or indirect
wholly-owned subsidiary, or to a direct or indirect wholly-owned
subsidiary of its parent; (b) to Immediate Family Members of the Co-
Investor or a trust established for any such Immediate Family Member;
(c) when the investment is comprised of securities that are listed on a
national securities exchange registered under section 6 of the Exchange
Act; or (d) when the investment is comprised of securities that are
national market system securities pursuant to section 11A(a)(2) of the
Exchange Act and rule 11Aa2-1 thereunder.
    5. The General Partner of each Fund will send to each person who
was a Fund Investor in such Fund at any time during the fiscal year
then ended audited financial statements with respect to those Series in
which the Fund Investor held Interests. At the end of each fiscal year,
the General Partner will make a valuation or have a valuation made of
all of the assets of the Fund as of the fiscal year end in a manner
consistent with customary practice with respect to the valuation of
assets of the kind held by the Fund. In addition, as soon as
practicable after the end of each fiscal year of each Fund, the General
Partner of the Fund shall send a report to each person who was a Fund
Investor at any time during the fiscal year then ended, setting forth
such tax information as shall be necessary for the preparation by the
Fund Investor of his or her federal and state income tax returns and a
report of the investment activities of such Fund during such year.
    6. Each Fund and the General Partner will maintain and preserve,
for the life of each Series of that Fund and at least five years
thereafter, such accounts, books, and other documents as constitute the
record forming the basis for the audited financial statements and
annual reports of such Series to be provided to its Fund Investors, and
agree that all such records will be subject to examination by the
Commission and its staff. All such records will be maintained in an
easily accessible place for at least the first two years.

Compliance With Rule 701

    7. Prior to receiving a subscription agreement from any potential
Fund Investor pursuant to an offering in reliance on rule 701, SZD will
make available at no charge to potential Fund Investors the services of
a Financial Consultant qualified to provide advice concerning the
appropriateness of investing in a Fund. Specifically, the Financial
Consultant will hold one or more group meetings with potential Fund
Investors at which the Financial Consultant will discuss the risks and
other considerations relevant to determining whether to invest in a
Fund. The Financial Consultant also will be available to the group of
potential Fund Investors to answer general questions regarding an
investment in the Fund. In addition, potential Fund Investors will be
given the opportunity to submit relevant questions and issues to the
Financial Consultant in advance of the group meetings, so that the
Financial Consultant can address those questions and issues at the
meetings. SZD will not need to reveal the specific investments made by
any Fund to the Financial Consultant, as long as the investment
objectives, risk characteristics and other material information about
the Fund of the type that would be disclosed in the offering documents
for the Fund is made available to the Financial Consultant.
    8. SZD will at all times control each Fund, within the meaning of
rule 405 under the Securities Act. In this regard, SZD will, either
directly or through a wholly-owned subsidiary, be the General Partner
of the Fund, own at least 95% of the voting Interests of the Fund, and
make all investment and other operational decisions for the Fund.
    9. SZD or a wholly-owned subsidiary will own not less than 5% of
the economic Interests issued each year by the Fund, and (as discussed
above) at least 95% of the voting Interests of the Fund. In addition,
SZD and its Principals, directly or through Qualified Investment
Vehicles, together will own at least 80% of the economic Interests of
each Series.
    10. SZD prepares its financial statements on a modified cash basis,
and does not consolidate the Fund's financial statements with its own.
If, however, SZD prepared its financial statements in accordance with
GAAP, it would consolidate the Fund's financial statements with its
own.
    11. SZD, when offering Interests pursuant to rule 701 under the
Securities Act, will issue Interests in each Series in compliance with
rule 701(d)(2),\4\ and will comply with all applicable requirements of
rule 701(e).\5\
---------------------------------------------------------------------------

    \4\ If SZD relies on rule 701(d)(2)(ii), it will not sell
pursuant to rule 701, during any consecutive 12-month period,
Interests in the Fund if the sales price of those Interests exceeds
15% of the total assets of the Fund.
    \5\ In order to comply with the requirements of rule 701, at the
beginning of each Investment Period the Fund will accept capital
contributions or irrevocable commitments from Regulation D Investors
for the relevant Series, and then prepare a balance sheet as
required by rule 701. The Fund may then receive and accept
subscription agreements, and thereafter accept capital contributions
or commitments, from Rule 701 Investors for that Series, which in
the aggregate will not exceed 15% of the total amount of capital
contributions and irrevocable commitments received from Regulation D
Investors.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. E6-22605 Filed 1-4-07; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Proposed Rules]
[Pages 70941-70945]
[FR Doc No: 2012-28768]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 /
Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. FAA-2012-1246; Notice No. 25-12-16-SC]

Special Conditions: Embraer S.A., Model EMB-550 Airplane;
Interaction of Systems and Structures

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed special conditions.

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

SUMMARY: This action proposes special conditions for the Embraer S.A.
Model EMB-550 airplane. This airplane will have a novel or unusual
design feature(s) associated with the interaction of systems and
structures. The applicable airworthiness regulations do not contain
adequate or appropriate safety standards for this design feature. These
proposed special conditions contain the additional safety standards
that the Administrator considers necessary to establish a level of
safety equivalent to that established by the existing airworthiness
standards.

DATES: Send your comments on or before January 14, 2013.

ADDRESSES: Send comments identified by docket number [FAA-2012-1246]
using any of the following methods:
     Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending
your comments electronically.
     Mail: Send comments to Docket Operations, M-30, U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 8 a.m. and 5 p.m.,
Monday through Friday, except federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov/, including any personal
information the commenter provides. Using the search function of the
docket Web site, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.
    Docket: Background documents or comments received may be read at
http://www.regulations.gov/ at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except federal holidays.

FOR FURTHER INFORMATION CONTACT: Todd Martin, FAA, Airframe and Cabin
Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft
Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-
3356; telephone<PHONE_NUMBER>; facsimile<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite interested people to take part in this rulemaking by
sending written comments, data, or views. The most helpful comments
reference a specific portion of the special conditions, explain the
reason for any recommended change, and include supporting data.
    We will consider all comments we receive on or before the closing
date for comments. We may change these special conditions based on the
comments we receive.

Background

    On May 14, 2009, Embraer S.A. applied for a type certificate for
their new Model EMB-550 airplane. The Model EMB-550 airplane is the
first of a new family of jet airplanes designed for corporate flight,
fractional, charter, and private owner operations. The aircraft has a
conventional configuration with low wing and T-tail empennage. The
primary structure is metal with composite empennage and control
surfaces. The Model EMB-550 airplane is designed for 8 passengers, with
a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E
medium bypass ratio turbofan engines mounted on aft fuselage pylons.
Each engine produces approximately 6,540 pounds of thrust for normal
takeoff. The primary flight controls consist of hydraulically powered
fly-by-wire elevators, aileron and rudder, controlled by the pilot or
copilot sidestick.
    The Model Embraer EMB-550 airplane is equipped with systems that,
directly or as a result of failure or malfunction, affect its
structural performance. Current regulations do not take into account
loads for the airplane due to the effects of systems on structural
performance including normal operation and failure conditions with
strength levels related to probability of occurrence. Special
conditions are needed to account for these features.

Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14
CFR) 21.17, Embraer S.A. must show that the Model EMB-550 airplane
meets the applicable provisions of part 25, as amended by Amendments
25-1 through 25-127 thereto.
    If the Administrator finds that the applicable airworthiness
regulations (i.e., 14 CFR part 25) do not contain adequate or
appropriate safety standards for the Model EMB-550 airplane because of
a novel or unusual design feature, special conditions are prescribed
under the provisions of Sec.  21.16.
    Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same or similar
novel or unusual design feature, the special conditions would also
apply to the other model under Sec.  21.101.
    In addition to the applicable airworthiness regulations and special
conditions, the Embraer S.A. Model EMB-550 airplane must comply with
the fuel vent and exhaust emission requirements of 14 CFR part 34 and
the

noise certification requirements of 14 CFR part 36 and the FAA must
issue a finding of regulatory adequacy under Sec.  611 of Public Law
92-574, the ``Noise Control Act of 1972.''
    The FAA issues special conditions, as defined in 14 CFR 11.19, in
accordance with Sec.  11.38, and they become part of the type-
certification basis under Sec.  21.17(a)(2).

Novel or Unusual Design Features

    The Embraer S.A. Model EMB-550 airplane is equipped with systems
that, directly or as a result of failure or malfunction, affect its
structural performance. Current regulations do not take into account
loads for the airplane due to the effects of systems on structural
performance including normal operation and failure conditions with
strength levels related to probability of occurrence. Special
conditions are needed to account for these features.
    These special conditions define criteria to be used in the
assessment of the effects of these systems on structures. The general
approach of accounting for the effect of system failures on structural
performance would be extended to include any system in which partial or
complete failure, alone or in combination with other system partial or
complete failures, would affect structural performance.

Discussion

    These airplanes are equipped with systems that, directly or as a
result of failure or malfunction, affect its structural performance.
Current regulations do not take into account loads for the aircraft due
to the effects of systems on structural performance including normal
operation and failure conditions with strength levels related to
probability of occurrence. These special conditions define criteria to
be used in the assessment of the effects of these systems on
structures.
    Special conditions have been applied on past airplane programs to
require consideration of the effects of systems on structures. The
regulatory authorities and industry developed standardized criteria in
the Aviation Rulemaking Advisory Committee (ARAC) forum based on the
criteria defined in Advisory Circular 25.672, Active Flight Controls,
dated November 11, 1983. The ARAC recommendations have been
incorporated in European Aviation Safety Agency (EASA) Certification
Specifications (CS) 25.302 and CS 25 Appendix K. FAA rulemaking on this
subject is not complete, thus the need for the special conditions.
    The proposed special conditions are similar to those previously
applied to other airplane models and to CS 25.302. The major
differences between these proposed special conditions and the current
CS 25.302 are as follows:
    1. Both these special conditions and CS 25.302 specify the design
load conditions to be considered. In paragraphs 2(a)(1) and 2(b)(2)(i)
of these special conditions, the special conditions clarify that, in
some cases, different load conditions are to be considered due to other
special conditions or equivalent level of safety findings.
    2. Paragraph 2(b)(2)(i) of these special conditions include the
additional ground-handling conditions of Sec. Sec.  25.493(d) and
25.503. These conditions are added in case the Embraer S.A. Model EMB-
550 airplane has systems that affect braking and pivoting.
    3. Both CS 25.302 and paragraph (2)(d) of these special conditions
allow consideration of the probability of being in a dispatched
configuration when assessing subsequent failures and potential
``continuation of flight'' loads. However, these special conditions
also allow using probability when assessing failures that induce loads
at the ``time of occurrence,'' whereas CS 25.302 does not.

Applicability

    As discussed above, these special conditions are applicable to the
Embraer S.A. Model EMB-550 airplane. Should Embraer S.A. apply at a
later date for a change to the type certificate to include another
model incorporating the same novel or unusual design feature, the
special conditions would apply to that model as well.

Conclusion

    This action affects only certain novel or unusual design features
on one model of airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements.

    The authority citation for these special conditions is as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Proposed Special Conditions

    Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for Embraer S.A. Model EMB-550 airplanes to address the effects of
systems on structures.

1. General Interaction of Systems and Structures

    For airplanes equipped with systems that affect structural
performance, either directly or as a result of a failure or
malfunction, the influence of these systems and their failure
conditions must be taken into account when showing compliance with the
requirements of Title 14, Code of Federal Regulations (14 CFR) part 25
subparts C and D.
    The following criteria must be used for showing compliance with
these special conditions for airplanes equipped with flight control
systems, autopilots, stability augmentation systems, load alleviation
systems, fuel management systems, and other systems that either
directly or as a result of failure or malfunction affect structural
performance. If these special conditions are used for other systems, it
may be necessary to adapt the criteria to the specific system.
    (a) The criteria defined herein only address the direct structural
consequences of the system responses and performances and cannot be
considered in isolation but should be included in the overall safety
evaluation of the airplane. These criteria may in some instances
duplicate standards already established for this evaluation. These
criteria are only applicable to structure in which failure could
prevent continued safe flight and landing. Specific criteria that
define acceptable limits on handling characteristics or stability
requirements when operating in the system degraded or inoperative mode
are not provided in these special conditions.
    (b) The following definitions are applicable to these special
conditions.
    (1) Structural performance: Capability of the airplane to meet the
structural requirements of 14 CFR part 25.
    (2) Flight limitations: Limitations that can be applied to the
airplane flight conditions following an in-flight occurrence and that
are included in the flight manual (e.g., speed limitations and
avoidance of severe weather conditions).
    (3) Operational limitations: Limitations, including flight
limitations, that can be applied to the airplane operating conditions
before dispatch (e.g., fuel, payload, and Master Minimum Equipment List
limitations).
    (4) Probabilistic terms: The probabilistic terms (i.e., probable,
improbable, and extremely improbable) used in these special conditions
are the same as those used in Sec.  25.1309.
    (5) Failure condition: The term ``failure condition'' is the same
as that

used in Sec.  25.1309. However, these special conditions apply only to
system failure conditions that affect the structural performance of the
airplane (e.g., system failure conditions that induce loads, change the
response of the airplane to inputs such as gusts or pilot actions, or
lower flutter margins).

2. Effect on Systems and Structures

    The following criteria are used in determining the influence of a
system and its failure conditions on the airplane structure.
    (a) System fully operative. With the system fully operative, the
following apply:
    (1) Limit loads must be derived in all normal operating
configurations of the system from all the limit conditions specified in
Subpart C (or defined by special condition or equivalent level of
safety in lieu of those specified in Subpart C), taking into account
any special behavior of such a system or associated functions or any
effect on the structural performance of the airplane that may occur up
to the limit loads. In particular, any significant nonlinearity (rate
of displacement of control surface, thresholds or any other system
nonlinearities) must be accounted for in a realistic or conservative
way when deriving limit loads from limit conditions.
    (2) The airplane must meet the strength requirements of part 25
(static strength, residual strength), using the specified factors to
derive ultimate loads from the limit loads defined above. The effect of
nonlinearities must be investigated beyond limit conditions to ensure
the behavior of the system presents no anomaly compared to the behavior
below limit conditions. However, conditions beyond limit conditions
need not be considered when it can be shown that the airplane has
design features that will not allow it to exceed those limit
conditions.
    (3) The airplane must meet the aeroelastic stability requirements
of Sec.  25.629.
    (b) System in the failure condition. For any system failure
condition not shown to be extremely improbable, the following apply:
    (1) At the time of occurrence. Starting from 1-g level flight
conditions, a realistic scenario, including pilot corrective actions,
must be established to determine the loads occurring at the time of
failure and immediately after failure.
    (i) For static strength substantiation, these loads, multiplied by
an appropriate factor of safety that is related to the probability of
occurrence of the failure, are ultimate loads to be considered for
design. The factor of safety (FS) is defined in Figure 1.
[GRAPHIC] [TIFF OMITTED] TP28NO12.001

    (ii) For residual strength substantiation, the airplane must be
able to withstand two-thirds of the ultimate loads defined in paragraph
2(b)(1)(i) of these special conditions. For pressurized cabins, these
loads must be combined with the normal operating differential pressure.
    (iii) Freedom from aeroelastic instability must be shown up to the
speeds defined in Sec.  25.629(b)(2). For failure conditions that
result in speeds beyond VC/MC, freedom from
aeroelastic instability must be shown to increased speeds, so that the
margins intended by Sec.  25.629(b)(2) are maintained.
    (iv) Failures of the system that result in forced structural
vibrations (e.g., oscillatory failures) must not produce loads that
could result in detrimental deformation of primary structure.
    (2) For the continuation of the flight. For the airplane, in the
system failed state and considering any appropriate reconfiguration and
flight limitations, the following apply:
    (i) The loads derived from the following conditions (or conditions
defined by special conditions or equivalent level of safety in lieu of
the following special conditions) at speeds up to VC/
MC, or the speed limitation prescribed for the remainder of
the flight, must be determined:
    (A) The limit symmetrical maneuvering conditions specified in
Sec. Sec.  25.331 and 25.345.
    (B) The limit gust and turbulence conditions specified in
Sec. Sec.  25.341 and 25.345.
    (C) The limit rolling conditions specified in Sec.  25.349 and the
limit unsymmetrical conditions specified in Sec. Sec.  25.367,
25.427(b), and 25.427(c).
    (D) The limit yaw maneuvering conditions specified in Sec.  25.351.
    (E) The limit ground loading conditions specified in Sec. Sec.
25.473, 25.491, 25.493(d) and 25.503.
    (ii) For static strength substantiation, each part of the structure
must be able to withstand the loads in paragraph 2(b)(2)(i) of these
special conditions multiplied by a factor of safety depending on the
probability of being in this failure state. The factor of safety (FS)
is defined in Figure 2.

[GRAPHIC] [TIFF OMITTED] TP28NO12.002

Qj = (Tj)(Pj) where:

Tj = Average time spent in failure condition j (in hours)
Pj = Probability of occurrence of failure mode j (per
hour)
    Note: If Pj is greater than 10-3 per
flight hour then a 1.5 factor of safety must be applied to all limit
load conditions specified in Subpart C.

    (iii) For residual strength substantiation, the airplane must be
able to withstand two-thirds of the ultimate loads defined in paragraph
2(b)(2)(ii) of the special conditions. For pressurized cabins, these
loads must be combined with the normal operating differential pressure.
    (iv) If the loads induced by the failure condition have a
significant effect on fatigue or damage tolerance then their effects
must be taken into account.
    (v) Freedom from aeroelastic instability must be shown up to a
speed determined from Figure 3. Flutter clearance speeds V' and V'' may
be based on the speed limitation specified for the remainder of the
flight using the margins defined by Sec.  25.629(b).
[GRAPHIC] [TIFF OMITTED] TP28NO12.003

V' = Clearance speed as defined by Sec.  25.629(b)(2).
V'' = Clearance speed as defined by Sec.  25.629(b)(1).
Qj = (Tj)(Pj) where:
Tj = Average time spent in failure condition j (in hours)
Pj = Probability of occurrence of failure mode j (per
hour)
Note: If Pj is greater than 10-3 per flight
hour, then the flutter clearance speed must not be less than V''.

    (vi) Freedom from aeroelastic instability must also be shown up to
V' in Figure 3 above, for any probable system failure condition
combined with any damage required or selected for investigation by
Sec.  25.571(b).
    (3) Consideration of certain failure conditions may be required by
other sections of 14 CFR part 25 regardless of calculated system
reliability. Where analysis shows the probability of these failure
conditions to be less than 10-9, criteria other than those
specified in this paragraph may be used for structural substantiation
to show continued safe flight and landing.
    (c) Failure indications. For system failure detection and
indication, the following apply:
    (1) The system must be checked for failure conditions, not
extremely improbable, that degrade the structural capability below the
level required by 14 CFR part 25 or significantly reduce the
reliability of the remaining system. As far as reasonably practicable,
the flightcrew must be made aware of these failures before flight.
Certain elements of the control system, such as mechanical and
hydraulic components, may use special periodic inspections, and
electronic components may use daily checks, in lieu of detection and
indication systems to achieve the objective of this requirement. These
certification maintenance requirements must be limited to components
that are not readily detectable by normal detection and indication
systems and where service history shows that inspections will provide
an adequate level of safety.
    (2) The existence of any failure condition, not extremely
improbable, during flight that could significantly affect the
structural capability of the airplane and for which the associated
reduction in airworthiness can be minimized by suitable flight
limitations, must be signaled to the flightcrew. For example, failure
conditions that result in a factor of safety between the airplane
strength and the loads of Subpart C below 1.25, or flutter margins
below V'',

must be signaled to the flightcrew during flight.
    (d) Dispatch with known failure conditions. If the airplane is to
be dispatched in a known system failure condition that affects
structural performance, or affects the reliability of the remaining
system to maintain structural performance, then the provisions of these
special conditions must be met, including the provisions of paragraph
2(a) for the dispatched condition, and paragraph 2(b) for subsequent
failures. Expected operational limitations may be taken into account in
establishing Pj as the probability of failure occurrence for
determining the safety margin in Figure 1 of these special conditions.
Flight limitations and expected operational limitations may be taken
into account in establishing Qj as the combined probability
of being in the dispatched failure condition and the subsequent failure
condition for the safety margins in Figures 2 and 3 of these special
conditions. These limitations must be such that the probability of
being in this combined failure state and then subsequently encountering
limit load conditions is extremely improbable. No reduction in these
safety margins is allowed if the subsequent system failure rate is
greater than 10-3 per hour.

    Issued in Renton, Washington, on November 21, 2012.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2012-28768 Filed 11-27-12; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: September 28, 2005 (Volume 70, Number 187)]
[Notices]
[Page 56678-56679]
[DOCID:fr28se05-115]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 2

September 20, 2005.
    Take notice that the Commission received the following electric
rate filings:
    Docket Numbers: ER05-1175-002.
    Applicants: NorthWestern Corporation.
    Description: NorthWestern Corp submits a revised, unexecuted
amended Firm Point-to-Point Transmission Service Agreement 18-SD, in
compliance with FERC's 9/1/05 Order.
    Filed Date: 09/16/2005.
    Accession Number: 20050919-0121.
    Comment Date: 5 p.m. eastern time on Friday, October 07, 2005.

    Docket Numbers: ER05-1229-001.
    Applicants: Old Dominion Electric Cooperative.
    Description: Old Dominion Electric Cooperative's files amended
application for providing cost-based Reactive Power & Voltage Control
from Generation Sources Service.
    Filed Date: 09/14/2005.
    Accession Number: 20050919-0060.
    Comment Date: 5 p.m. eastern time on Wednesday, October 05, 2005.

    Docket Numbers: ER05-1255-001.
    Applicants: Horizon Power, Inc.
    Description: Horizon Power, Inc submits tariff sheets amending its
market behavior tariff provisions in compliance with FERC's 9/14/05
Letter Order.
    Filed Date: 09/15/2005.
    Accession Number: 20050919-0061.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1273-001.
    Applicants: Mid-Continent Area Power Pool.
    Description: Mid-Continent Area Power Pool requests that FERC grant
an effective date of 9/28/05, for its revisions to Schedule 1 under
MAPP Schedule F.
    Filed Date: 09/15/2005.
    Accession Number: 20050919-0115.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1347-001.
    Applicants: Midwest Independent Transmission System Operator, Inc.
    Description: Midwest Independent Transmission System Operator,
Inc's proposed revisions to Attachment X of the Open Access
Transmission & Energy Markets Tariff, FERC Electric Tariff, Third
Revised Volume No. 1.
    Filed Date: 09/14/2005.
    Accession Number: 20050920-0056.
    Comment Date: 5 p.m. eastern time on Wednesday, October 05, 2005.

    Docket Numbers: ER05-1473-000.
    Applicants: PJM Interconnection L.L.C.
    Description: PJM Interconnection, LLC submits an executed
Interconnection Service Agreement with Benson Wind Farm LLC and
Commonwealth Edison Co., pursuant to section 205 of the Federal Power
Act.
    Filed Date: 09/12/2005.
    Accession Number: 20050913-0134.
    Comment Date: 5 p.m. eastern time on Monday, October 03, 2005.

    Docket Numbers: ER05-1475-001-002.
    Applicants: Midwest Independent Transmission. System Operator, Inc.
    Description: Midwest Independent Transmission Operator Inc submits
proposed revisions to Attachment X (Standard Large Generator
Interconnection Procedures) of its Open Access Transmission & Energy
Markets Tariff. September 16 proposed revision to Attachment X to
correct errors to September 12 filing.
    Filed Date: 09/15/2005.
    Accession Number: 20050919-0116.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1481-000.
    Applicants: American Electric Power Service Corporation.
    Description: American Electric Power Service Corp submits Notices
of Cancellation of a Network Operating Agreement & a Service Agreement
for Network Integration Transmission Service with CSW Operating
Companies et al.
    Filed Date: 09/14/2005.
    Accession Number: 20050919-0062.
    Comment Date: 5 p.m. eastern time on Wednesday, October 05, 2005.

    Docket Numbers: ER05-1482-000.
    Applicants: Electric Energy Inc.
    Description: Electric Energy, Inc submits a market-based tariff for
the sale of electric capacity, energy, & firm transmission rights, and
the reassignment of transmission capacity rights at negotiated rates.
    Filed Date: 09/15/2005.
    Accession Number: 20050919-0063.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1483-000.
    Applicants: Smarr EMC.
    Description: Smarr EMC advises that due to amendments to section
201(f) of the Federal Power Act, it is no longer a public utility.
    Filed Date: 09/15/2005.
    Accession Number: 20050916-0181.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1484-000.
    Applicants: Xcel Energy Services, Inc.
    Description: Xcel Energy Services Inc submits the Connection
Agreements for Great River Energy's Eagle Creek, Rockville, Oakwood,
Westwood  2 and Northstar Ethanol Substations between Northern
States Power Company's and Great River Energy.
    Filed Date: 09/15/2005.
    Accession Number: 20050916-0182.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1485-000.
    Applicants: Alcoa Power Generating Inc--Yadkin Division.
    Description: Alcoa Power Generating Inc submits revisions to its
Open Access Transmission Tariff--Yadkin Division which owns and
operates transmission facilities in the Southeastern Electric
Reliability Council.
    Filed Date: 09/16/2005.
    Accession Number: 20050919-0099.
    Comment Date: 5 p.m. eastern time on Friday, October 07, 2005.

    Docket Numbers: ER05-1486-000.
    Applicants: Graham County Electric Cooperative, Inc.
    Description: Graham County Electric Cooperative, Inc advises that
due to amendments to section 201(f) of the Federal Power Act, it is no
longer a public utility.
    Filed Date: 09/15/2005.
    Accession Number: 20050919-0119.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-1487-000.
    Applicants: Fall River Rural Electric Cooperative, Inc.
    Description: Fall River Rural Electric Cooperative, Inc. advises
that due to amendments to section 201(f) of the Federal Power Act, it
is no longer a public utility.
    Filed Date: 09/16/2005.
    Accession Number: 20050919-0118.
    Comment Date: 5 p.m. eastern time on Friday, October 07, 2005.

    Docket Numbers: ER05-1488-000.
    Applicants: Pacific Gas & Electric Company.
    Description: Pacific Gas & Electric Co submits an executed Letter
of Agreement with the California Department of Water Resources-State
Water Project.
    Filed Date: 09/16/2005.
    Accession Number: 20050919-0117.
    Comment Date: 5 p.m. eastern time on Friday, October 07, 2005.

    Docket Numbers: ER05-665-003.
    Applicants: Barrick Goldstrike Mines Inc.
    Description: Barrick Goldstrike Mines Inc submits Substitute
Original Sheet No. 4 to FERC Electric Tariff, Original Volume No. 1 in
compliance with FERC's 8/16/05 Order.
    Filed Date: 09/15/2005.
    Accession Number: 20050916-0176.
    Comment Date: 5 p.m. eastern time on Thursday, October 06, 2005.

    Docket Numbers: ER05-939-002.
    Applicants: Vesta Trading LP.
    Description: Vesta Trading LP submits Substitute Original Sheet No.
4 to FERC Electric Tariff, Original Volume No. 1 in compliance with
FERC's 8/18/05 Order.
    Filed Date: 09/13/2005.
    Accession Number: 20050919-0059.
    Comment Date: 5 p.m. eastern time on Tuesday, October 04, 2005.
    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 docket(s). For assistance with
any FERC Online service, please e-mail<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
[FR Doc. E5-5254 Filed 9-27-05; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 83, Number 14 (Monday, January 22, 2018)]
[Rules and Regulations]
[Pages 2894-2896]
[FR Doc No: 2018-00949]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2018-0023; Product Identifier 2017-NM-084-AD; Amendment
39-19164; AD 2018-02-11]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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

SUMMARY: We are adopting a new airworthiness directive (AD) for certain
Airbus Model A330-301, -321, -322 and -342 airplanes. This AD requires
contacting the FAA to obtain instructions for addressing the unsafe
condition on these products, and doing the actions specified in those
instructions. This AD was prompted by a report of cracking in the top
skin of the horizontal stabilizer (HS) center box (CB) of an airplane
in pre-modification 41330 configuration. We are issuing this AD to
address the unsafe condition on these products.

DATES: This AD becomes effective February 6, 2018.
    We must receive comments on this AD by March 8, 2018.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-
0023; or in person at the Docket Operations office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The AD docket
contains this AD, the regulatory evaluation, any comments received, and
other information. The street address for the Docket Operations office
(telephone:<PHONE_NUMBER>) is in the ADDRESSES section. Comments will be
available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Vladimir Ulyanov, Aerospace Engineer,
International Section, Transport Standards Branch, FAA, 1601 Lind
Avenue SW, Renton, WA 98057-3356; telephone:<PHONE_NUMBER>; fax: 425-
227-1149.

SUPPLEMENTARY INFORMATION:

Discussion

    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Union, has issued EASA AD
2017-0078, dated May 3, 2017 (referred to after this as the Mandatory
Continuing Airworthiness Information, or ``the MCAI''), to correct an
unsafe condition for certain Airbus Model A330-301, -321, -322 and -342
airplanes. The MCAI states:

    Cracks were found in the horizontal stabilizer (HS) centre box
(CB) top skin of an aeroplane in pre-modification 41330
configuration. The cracks were initiated at the upper flange corner
at Rib 3 rear spar area on left hand side of the CB.
    This condition, if not detected and corrected, could lead to
reduced structural integrity of the HS CB of the aeroplane.
    To address this unsafe condition, Airbus published Service
Bulletin (SB) A330-55-3046 to provide inspection instructions for
the affected area.
    For the reason described above, this [EASA] AD requires a one-
time special detailed inspection (SDI) of the HS CB top

skin integral flange area and, depending on findings, accomplishment
of applicable corrective action(s). This [EASA] AD also requires
reporting of the inspection results, including no findings, to
Airbus.

    You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-
0023.

FAA's Determination and Requirements of This AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI. We are
issuing this AD because we evaluated all pertinent information and
determined the unsafe condition exists and is likely to exist or
develop on other products of the same type design.

FAA's Determination of the Effective Date

    Since there are currently no domestic operators of this product, we
find good cause that notice and opportunity for prior public comment
are unnecessary. In addition, for the reasons stated above, we find
that good cause exists for making this amendment effective in less than
30 days.

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety, and we did not precede it by notice and opportunity for public
comment. We invite you to send any written relevant data, views, or
arguments about this AD. Send your comments to an address listed under
the ADDRESSES section. Include ``Docket No. FAA-2018-0023; Product
Identifier 2017-NM-084-AD'' at the beginning of your comments. We
specifically invite comments on the overall regulatory, economic,
environmental, and energy aspects of this AD. We will consider all
comments received by the closing date and may amend this AD based on
those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this AD.

Costs of Compliance

    Currently, there are no affected U.S.-registered airplanes. This AD
requires contacting the FAA to obtain instructions for addressing the
unsafe condition, and doing the actions specified in those
instructions. Based on the actions specified in the MCAI AD, we are
providing the following cost estimates for an affected airplane that is
placed on the U.S. Register in the future:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per
                   Action                                 Labor cost                Parts cost        product
----------------------------------------------------------------------------------------------------------------
High frequency eddy current inspection.....  1 work-hour x $85 per hour = $85...              $0             $85
Reporting..................................  1 work-hour x $85 per hour = $85...               0              85
----------------------------------------------------------------------------------------------------------------

    We have received no definitive data that would enable us to provide
cost estimates for the on-condition actions specified in this AD.

Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not
required to respond to, nor shall a person be subject to penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a current valid OMB control number. The control
number for the collection of information required by this AD is 2120-
0056. The paperwork cost associated with this AD has been detailed in
the Costs of Compliance section of this document and includes time for
reviewing instructions, as well as completing and reviewing the
collection of information. Therefore, all reporting associated with
this AD is mandatory. Comments concerning the accuracy of this burden
and suggestions for reducing the burden should be directed to the FAA
at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information
Collection Clearance Officer, AES-200.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. 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.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.
    This AD is issued in accordance with authority delegated by the
Executive Director, Aircraft Certification Service, as authorized by
FAA Order 8000.51C. In accordance with that order, issuance of ADs is
normally a function of the Compliance and Airworthiness Division, but
during this transition period, the Executive Director has delegated the
authority to issue ADs applicable to transport category airplanes to
the Director of the System Oversight Division.

Regulatory Findings

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify that this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2018-02-11 Airbus: Amendment 39-19164; Docket No. FAA-2018-0023;
Product Identifier 2017-NM-084-AD.

(a) Effective Date

    This AD becomes effective February 6, 2018.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Airbus Model A330-301, -321, -322 and A330-
342 airplanes, certificated in any category, manufacturer serial
numbers 0012, 0017, 0030, 0037, 0045, 0050, 0060, 0062, 0064, 0065,
0071, 0082, 0083, 0098, 0099, 0102, 0106, 0109, 0112, 0132 and 0177.

(d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

(e) Reason

    This AD was prompted by a report of cracking in the top skin of
the horizontal stabilizer (HS) center box (CB) of an airplane in
pre-modification 41330 configuration. We are issuing this AD to
detect and correct cracking in the HS CB, which could lead to
reduced structural integrity of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Action(s)

    Within 30 days after the effective date of this AD, request
instructions from the Manager, International Section, Transport
Standards Branch, FAA, to address the unsafe condition specified in
paragraph (e) of this AD; and accomplish the actions at the times
specified in, and in accordance with, those instructions. Guidance
can be found in Mandatory Continuing Airworthiness Information
(MCAI) European Aviation Safety Agency (EASA) AD 2017-0078, dated
May 3, 2017.

(h) Alternative Methods of Compliance (AMOCs)

    The Manager, International Section, Transport Standards Branch,
FAA, has the authority to approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19. In accordance with 14
CFR 39.19, send your request to your principal inspector or local
Flight Standards District Office, as appropriate. If sending
information directly to the International Section, send it to the
attention of the person identified in paragraph (j)(2) of this AD.
Information may be emailed to: [email protected].
Before using any approved AMOC, notify your appropriate principal
inspector, or lacking a principal inspector, the manager of the
local flight standards district office/certificate holding district
office.

(i) Paperwork Reduction Act Burden Statement

    A federal agency may not conduct or sponsor, and a person is not
required to respond to, nor shall a person be subject to a penalty
for failure to comply with a collection of information subject to
the requirements of the Paperwork Reduction Act unless that
collection of information displays a current valid OMB Control
Number. The OMB Control Number for this information collection is
2120-0056. Public reporting for this collection of information is
estimated to be approximately 1 hour per response, including the
time for reviewing instructions, completing and reviewing the
collection of information. All responses to this collection of
information are mandatory. Comments concerning the accuracy of this
burden and suggestions for reducing the burden should be directed to
the FAA at: 800 Independence Ave. SW, Washington, DC 20591, Attn:
Information Collection Clearance Officer, AES-200.

(j) Related Information

    (1) Refer to MCAI EASA AD 2017-0078, dated May 3, 2017, for
related information. You may examine the MCAI on the internet at
http://www.regulations.gov by searching for and locating Docket No.
FAA-2018-0023.
    (2) For more information about this AD, contact Vladimir
Ulyanov, Aerospace Engineer, International Section, Transport
Standards Branch, FAA, 1601 Lind Avenue SW, Renton, WA 98057-3356;
telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>.

(k) Material Incorporated by Reference

    None.

    Issued in Renton, Washington, on January 10, 2018.
John P. Piccola, Jr.,
Acting Director, System Oversight Division, Aircraft Certification
Service.
[FR Doc. 2018-00949 Filed 1-19-18; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: December 27, 2007 (Volume 72, Number 247)]
[Notices]
[Page 73343-73344]
[DOCID:fr27de07-49]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12874-000]

Hydro Green Energy, LLC; Notice of Application Accepted for
Filing and Soliciting Motions To Intervene, Protests, and Comments

December 17, 2007.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Application: Preliminary Permit.
    b. Project No.: 12874-000.
    c. Date filed: July 24, 2007.
    d. Applicant: Hydro Green Energy, LLC.
    e. Name of Project: ``Alaska 17'' Project.
    f. Location: The project would be located in a section of the Yukon
River in the Yukon-Koyukuk Census Area, Alaska. The project uses no dam
or impoundment.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
    h. Applicant Contacts: Mr. Wayne F. Krouse, Hydro Green Energy,
LLC, 5090 Richmond Avenue 390, Houston, TX 77056, and Mr.
James H. Hancock Jr., Balch & Bingham LLP, 1710 Sixth Avenue North,
Birmingham, Alabama 35203.
    i. FERC Contact: Kelly Houff,<PHONE_NUMBER>.
    j. Deadline for filing comments, protests, and motions to
intervene: 60 days from the issuance date of this notice.
    All documents (original and eight copies) should be filed with:
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. Comments, protests, and interventions may be
filed electronically via the Internet in lieu of paper; see 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's web site
under the ``e-Filing'' link. The Commission strongly encourages
electronic filings. Please include the project number (P-12874-000) on
any comments or motions filed.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency.
    k. Description of Project: The proposed project consists of: (1) 5
arrays, each consisting of ten, 100 kilowatt hydrokinetic turbine
units, for a total installed capacity of 5 megawatts, (2) a proposed
transmission line no greater than 1500 feet from the ``node'' array to
the shore, (3) a mooring system which does not require the use of
pilings to permanently attach the units to the bedrock but instead uses
tethers and Danforth type anchors, and (4) appurtenant facilities. The
project would have an average annual generation of 32.873 gigawatt-
hours, which would be sold to a local utility.
    l. Locations of Applications: A copy of the application is
available for inspection and reproduction at the Commission in the
Public Reference Room, located at 888 First Street, NE., Room 2A,
Washington DC 20426, or by calling<PHONE_NUMBER>. This filing may also
be viewed on the Commission's Web site at http://www.ferc.gov using the

``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. For
assistance, call toll-free 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>For TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item h
above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Competing Preliminary Permit--Anyone desiring to file a
competing application for preliminary permit for a proposed project
must submit the competing application itself, or a notice of intent to
file such an application, to the Commission on or before the specified
comment date for the particular application (see 18 CFR 4.36).
Submission of a timely notice of intent allows an interested person to
file the competing preliminary permit application no later than 30 days
after the specified comment date for the particular application. A
competing preliminary permit application must conform with 18 CFR 4.30
and 4.36.
    o. Competing Development Application--Any qualified development
applicant desiring to file a competing development application must
submit to the Commission, on or before a specified comment date for the
particular application, either a competing development application or a
notice of intent to file such an application. Submission of a timely
notice of intent to file a development application allows an interested
person to file the competing application no later than 120 days after
the specified comment date for the particular application. A competing
license application must conform with 18 CFR 4.30 and 4.36.
    p. Notice of Intent--A notice of intent must specify the exact
name, business address, and telephone number of the prospective
applicant, and must include an unequivocal statement of intent to
submit, if such an application may be filed, either a preliminary
permit application or a development application (specify which type of
application). A notice of intent must be served on the applicant(s)
named in this public notice.
    q. Proposed Scope of Studies Under Permit--A preliminary permit, if
issued, does not authorize construction. The term of the proposed
preliminary permit would be 36 months. The work proposed under the
preliminary permit would include economic analysis, preparation of
preliminary engineering plans, and a study of environmental impacts.
Based on the results of these studies, the Applicant would decide
whether to proceed with the preparation of a development application to
construct and operate the project.
    r. Comments, Protests, or Motions To Intervene--Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    s. Filing and Service of Responsive Documents--Any filings must
bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS
FOR TERMS AND CONDITIONS'',

``PROTEST'',''COMPETING APPLICATION'' OR ``MOTION TO INTERVENE'', as
applicable, and the Project Number of the particular application to
which the filing refers. Any of the above-named documents must be filed
by providing the original and the number of copies provided by the
Commission's regulations to: The
    Secretary, Federal Energy Regulatory Commission, 888 First Street,
NE., Washington, DC 20426. A copy of any motion to intervene must also
be served upon each representative of the Applicant specified in the
particular application.
    t. Agency Comments--Federal, state, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Kimberly D. Bose,
 Secretary.
 [FR Doc. E7-25005 Filed 12-26-07; 8:45 am]

BILLING CODE 6717-01-P


Note: Species densities are per square meter and are collected from an undisturbed salt marsh at the Narragansett Estuarine Research Reserve on Prudence Island, RI. data incorporated in Sections on fish abundance in tidal wetlands in Pilgrim and Brayton HRC chapters data received and incorporated in reports starts in row 16.

Direct text of 11/ 19/ 01 e mail from Kenny Raposa regarding the data table of nekton data from Coggeshall marsh on Prudence Island, RI. These data were also collected with a 1 m2 throw trap in July and Sep 2000 from salt marsh creeks and pools.

Species July 2000 September 2000 Average Palaemonetes pugio 41.20 119.87 80.53 Lucania parva 1.03 0.00 0.52 Fundulus heteroclitus 13.40 27.83 20.62 Cyprinodon variegatus 0.80 2.00 1.40 Pagarus longicarpus 18.20 3.70 10.95 Crangon septemspinosa 3.27 1.23 2.25 Fundulus majalis 2.40 0.53 1.47 Menidia menidia 0.17 0.07 0.12 Menidia beryllina 0.60 0.87 0.73 Panopeus herbstii 0.98 0.20 0.59 Carcinus maenas 0.23 0.37 0.30 Anguilla rostrata 0.33 0.37 0.35 Pseudopleuronectes americanus 0.10 0.10 0.10 Callinectes sapidus 0.13 0.00 0.07 Neopanopeus sayi 0.09 0.03 0.06 Apeltes quadracus 0.00 0.00 0.00 Total nekton 82.93 157.17 120.05 File contains estimates of the abundance of species captured in sampling efforts within the tidal wetlands of the Coggeshall marsh on Prudence Island in the Narragansett Estuarine Research Reserve in July and September 2000. Received from Kenny Raposa of the Narragansett Estuarine Research Reserve, 2001.