[Federal Register Volume 82, Number 101 (Friday, May 26, 2017)]
[Notices]
[Pages 24418-24424]
[FR Doc No: 2017-10795]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 32642; 812-14408]

Corporate Capital Trust, Inc., et al.

May 22, 2017.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    Notice of application for an order under sections 17(d) and 57(i)
of the Investment Company Act of 1940 (the ``Act'') and rule 17d-1
under the Act to permit certain joint transactions otherwise prohibited
by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.

Summary of Application:  Applicants request an order to permit business
development companies (``BDCs'') and closed-end management investment
companies to co-invest in portfolio companies with each other and with
certain affiliated investment funds and accounts.\1\
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    \1\ The requested order (``Order'') would supersede an exemptive
order issued by the Commission on May 21, 2013 (In the Matter of
Corporate Capital Trust, et al., Investment Company Act Release Nos.
30494 (Apr. 25, 2013) (notice) and 30526 (May 21, 2013) (order))
(the ``Prior Order''), with the result that no person will continue
to rely on the Prior Order if the Order is granted.

Applicants:  Corporate Capital Trust, Inc. (``CCT I''); Corporate
Capital Trust II (``CCT II''); KKR Income Opportunities Fund (``KIO,''
and together with CCT I and CCT II, the ``Existing Regulated
Entities''); CNL Fund Advisors Company (``CFA''); CNL Fund Advisors II,
LLC (``CFA II''); KKR Credit Advisors (US) LLC (``KKR Credit''); the
investment advisory subsidiaries and relying advisers of KKR Credit set
forth on Schedule A to the application (collectively, with KKR Credit,
the ``Existing KKR Credit Advisers''); KKR Capital Markets Holdings
L.P. and its capital markets subsidiaries and other indirect, wholly-
or majority-owned subsidiaries of KKR & Co. L.P. (``KKR'') set forth on
Schedule A to the application (collectively, the ``KCM Companies'');
\2\ KKR Financial Holdings LLC (``KFN'') and its wholly-owned
subsidiaries set forth on Schedule A to the application (together with
wholly-owned subsidiaries of KFN that may be formed in the future, the
``KFN Subsidiaries.''); the Existing Affiliated Funds set forth on
Schedule A to the application \3\; and Prisma Capital Partners LP (the
``Existing KKR Primary Adviser'').
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    \2\ These entities are all indirect, wholly- or majority-owned
subsidiaries of KKR and, from time to time, may hold various
financial assets in a principal capacity (in such capacity,
``Existing KKR Proprietary Accounts'').
    \3\ The Existing Affiliated Funds, together with their direct
and indirect wholly-owned subsidiaries, are entities (i) (A) whose
primary investment adviser is an Existing KKR Credit Adviser or (B)
whose primary investment adviser is the Existing KKR Primary Adviser
and whose sub-adviser is an Existing KKR Credit Adviser (``Sub-
Advised Affiliated Fund'') and (ii) that either (A) would be an
investment company but for section 3(c)(1) or 3(c)(7) of the Act or
(B) may rely on the rule 3a-7 exemption from investment company
status. Certain Existing Affiliated Funds are collateralized loan
obligation (``CLO'') entities that rely on rule 3a-7 under the Act
in addition to section 3(c)(7) thereof. These Existing Affiliated
Funds are all advised by Existing KKR Credit Advisers.

Filing Dates:  The application was filed on December 24, 2014, and
amended on June 1, 2015, December 7, 2015, July 14, 2016, and May 8,
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2017.

Hearing or Notification of Hearing:  An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on June 16, 2017, and

should be accompanied by proof of service on applicants, in the form of
an affidavit or, for lawyers, a certificate of service. Pursuant to
rule 0-5 under the Act, hearing requests should state the nature of the
writer's interest, any facts bearing upon the desirability of a hearing
on the matter, the reason for the request, and the issues contested.
Persons who wish to be notified of a hearing may request notification
by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
St. NE., Washington, DC 20549-1090. Applicants: CCT I, CCT II, CFA, and
CFA II, 450 S. Orange Avenue, Orlando, FL 32801; KIO, KKR Credit, KKR
the KCM Companies, KFN, the KFN Subsidiaries, the Existing Affiliated
Funds, and the Existing KKR Primary Adviser, 555 California Street,
50th Floor, San Francisco, CA 94104.

FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel,
at<PHONE_NUMBER> or David J. Marcinkus, Branch Chief, at (202) 551-
6821 (Chief Counsel's Office, Division of Investment Management).

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

Applicants' Representations

    1. CCT I, a Maryland corporation, and CCT II, a Delaware statutory
trust, are closed-end management investment companies that have elected
to be regulated as BDCs under the Act.\4\ Each of CCT I and CCT II's
investment objective is to provide shareholders with current income
and, to a lesser extent, long-term capital appreciation. CCT I and CCT
II each have a five-member Board, of which three members are
Independent Directors.\5\
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    \4\ Section 2(a)(48) defines a BDC to be any closed-end
investment company that operates for the purpose of making
investments in securities described in sections 55(a)(1) through
55(a)(3) of the Act and makes available significant managerial
assistance with respect to the issuers of such securities.
    \5\ ``Board'' means the board of directors of CCT I, CCT II,
KIO, and any other Regulated Entity.
    ``Independent Directors'' means the independent directors of CCT
I, CCT II, KIO, and the independent directors or trustees of any
other Regulated Entity who are not ``interested persons'' within the
meaning of section 2(a)(19) of the Act.
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    2. KIO, a Delaware statutory trust, is a non-diversified, closed-
end management investment company registered under the Act. KIO's
primary investment objective is to seek a high level of current income
with a secondary objective of capital appreciation. KIO has a four
member Board, of which three members are Independent Directors.
    3. Each of CFA and CFA II is a subsidiary of CNL Financial Group,
LLC and is registered as an investment adviser under the Investment
Advisers Act of 1940 (the ``Advisers Act''). CFA serves as CCT I's
investment adviser. CFA II serves as CCT II's investment adviser. A CFA
Adviser (as defined below) will serve as the investment adviser and
administrator to each Regulated Entity with KKR Credit as Sub-Adviser.
    4. KKR is a global investment firm structured as a holding company
that conducts its business through various subsidiaries, which include
investment advisers and broker-dealers. KKR also holds various
financial assets in a principal capacity. KKR Credit, a subsidiary of
KKR, is a Delaware limited liability company registered as an
investment adviser under the Advisers Act. KKR Credit serves as
investment adviser to KIO and as sub-adviser to CCT I and CCT II. The
CFA Advisers and the KKR Credit Advisers are not affiliated persons or
affiliated persons of affiliated persons (as defined in the Act),
except for the affiliation that arises as a result of serving as the
advisers of any Regulated Entity with KKR Credit as Sub-Adviser.
    5. The Existing KKR Primary Adviser is registered as an investment
adviser under the Advisers Act and serves as the primary investment
adviser to the Sub-Advised Affiliated Funds. A KKR Primary Adviser will
serve as the primary investment adviser to any Sub-Advised Affiliated
Fund.
    6. KFN, a majority-owned subsidiary of KKR, is a specialty finance
company that is externally advised by an Existing KKR Credit Adviser.
KFN, which was acquired by KKR on April 30, 2014, is a holding company
that engages in its specialty finance business through the wholly-owned
KFN Subsidiaries, which rely on one or more exemptions or exceptions
from the definition of an investment company.
    7. The KCM Companies are indirect, wholly- or majority-owned
subsidiaries of KKR and, from time to time, may hold various financial
assets in a principal capacity (in such capacity, together with KFN and
the KFN Subsidiaries, the ``Existing KKR Proprietary Accounts,'' and,
together with any Future KKR Proprietary Account, the ``KKR Proprietary
Accounts''). Each KKR Proprietary Account, other than the KCM
Companies, is or will be advised by a KKR Credit Adviser.
    8. Applicants seek an order to permit one or more Regulated
Entities \6\ and/or one or more Affiliated Investors \7\ to participate
in the same investment opportunities through a proposed co-investment
program (the ``Co-Investment Program'') where such participation would
otherwise be prohibited under sections 17(d) and 57(a)(4) of the Act
and rule 17d-1 thereunder.
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    \6\ ``Regulated Entity'' means any of the Existing Regulated
Entities and any Future Regulated Entity.
    ``Future Regulated Entity'' means any closed-end management
investment company formed in the future (a) that is registered under
the Act or has elected to be regulated as a BDC, (b)(i) whose
investment adviser is KKR Credit or (ii) whose investment adviser is
a CFA Adviser and whose sub-adviser is KKR Credit.
    ``Regulated Entity with KKR Credit as Sub-Adviser'' means a
Regulated Entity whose investment adviser is a CFA Adviser and whose
sub-adviser is KKR Credit.
    ``CFA Adviser'' means CFA, CFA II, or any future investment
adviser that (i) controls, is controlled by, or is under common
control with CFA, (ii) is registered as an investment adviser under
the Advisers Act, and (iii) is not a Regulated Entity or a
subsidiary of a Regulated Entity.
    ``KKR Credit Adviser'' means any Existing KKR Credit Adviser or
any future investment adviser that (i) is controlled by, or a
relying adviser of, KKR Credit, (ii) is registered as an investment
adviser under the Advisers Act, and (iii) is not a Regulated Entity
or a subsidiary of a Regulated Entity.
    ``Adviser'' means any KKR Credit Adviser or any CFA Adviser. The
term Adviser does not include any KKR Primary Adviser.
    ``KKR Primary Adviser'' means the Existing KKR Primary Adviser
or any future investment adviser that (i) is controlled by KKR, (ii)
is registered as an investment adviser under the Advisers Act, and
(iii) is not a KKR Credit Adviser.
    \7\ ``Affiliated Investor'' means (a) any Existing Affiliated
Fund, (b) any Future Affiliated Fund, (c) any Existing KKR
Proprietary Account; or (d) any Future KKR Proprietary Account.
    ``Future Affiliated Fund'' means an entity formed in the future
(a)(i) whose primary investment adviser is a KKR Credit Adviser or
(ii) whose primary adviser is a KKR Primary Adviser and whose sub-
adviser is a KKR Credit Adviser (``a ``Sub-Advised Affiliated
Fund''), and (b)(i) that would be an investment company but for
section 3(c)(1) or 3(c)(7) of the Act or (ii) with respect to CLO
entities, may rely on Rule 3a-7 under the 1940 Act in addition to
Section 3(c)(7) of the 1940 Act.
    ``Future KKR Proprietary Account'' means an indirect, wholly- or
majority-owned subsidiary of KKR that is formed in the future and,
from time to time, may hold various financial assets in a principal
capacity.
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    9. For purposes of the requested Order, ``Co-Investment
Transaction'' means any transaction in which a Regulated Entity (or its
Blocker Subsidiary) participated together with one or more other
Regulated Entities and/or one or more Affiliated Investors in reliance
on the requested Order or the Prior Order. ``Potential Co-Investment
Transaction'' means any investment opportunity in which a Regulated
Entity (or its Blocker Subsidiary) could not

participate together with one or more Affiliated Investors and/or one
or more other Regulated Entities without obtaining and relying on the
Order.\8\ Neither any CFA Adviser nor any KKR Primary Adviser will be
the source of any Potential Co-Investment Transaction.
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    \8\ All existing entities that currently intend to rely upon the
requested Order have been named as applicants. Any other existing or
future entity that subsequently relies on the Order will comply with
the terms and conditions of the application.
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    10. Applicants state that a Regulated Entity may, from time to
time, form a special purpose subsidiary (a ``Blocker Subsidiary'').\9\
A Blocker Subsidiary would be prohibited from investing in a Co-
Investment Transaction with any Affiliated Investor or Regulated Entity
because it would be a company controlled by its parent Regulated Entity
for purposes of section 57(a)(4) and rule 17d-1. Applicants request
that a Blocker Subsidiary be permitted to participate in Co-Investment
Transactions in lieu of its parent Regulated Entity and that the
Blocker Subsidiary's participation in any such transaction be treated,
for purposes of the requested Order, as though the parent Regulated
Entity were participating directly.
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    \9\ ``Blocker Subsidiary'' means an entity (i) whose sole
business purpose is to hold one or more investments on behalf of the
Regulated Entity; (ii) that is wholly-owned by a Regulated Entity
(with the Regulated Entity at all times holding, beneficially and of
record, 100% of the voting and economic interests); (iii) with
respect to which the Regulated Entity's Board has the sole authority
to make all determinations with respect to the entity's
participation under the conditions of the application; and (iv) that
does not pay a separate advisory fee, including any performance-
based fee, to any person; and (v) that is an entity that would be an
investment company but for section 3(c)(1) or 3(c)(7) of the Act.
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    11. Applicants note that CFA is responsible for the overall
management of CCT I, while KKR Credit is responsible for the day-to-day
management of CCT I's investment portfolio. CFA II is responsible for
the overall management of CCT II, while KKR Credit is responsible for
the day-to-day management of CCT II's investment portfolio. Applicants
represent that although KKR Credit will identify and recommend
investments for the Regulated Entities with KKR Credit as Sub-Adviser,
the CFA Advisers will have ultimate authority to approve or reject the
investments proposed by KKR Credit, subject to the oversight of the
Board of each Regulated Entity.
    12. Applicants state that opportunities for Potential Co-Investment
Transactions may arise when advisory personnel of a KKR Credit Adviser
become aware of investment opportunities that may be appropriate for a
Regulated Entity, one or more other Regulated Entities and/or one or
more Affiliated Investors. In such cases, Applicants state that the
Adviser to a Regulated Entity will be notified of such Potential Co-
Investment Transactions and of KKR Credit's recommended allocation.
Applicants submit that the Adviser will then independently analyze and
evaluate the investment opportunity as to its appropriateness for each
Regulated Entity for which it serves as investment adviser, taking into
consideration the Regulated Entity's Objectives and Strategies \10\ and
any Board-Established Criteria.\11\ Applicants represent that, if the
CFA Adviser to a Regulated Entity determines that the opportunity is
appropriate for the Regulated Entity, the CFA Adviser will present the
investment opportunity to the CFA Adviser's investment committee for
its approval. If the CFA Adviser's investment committee approves the
investment for the Regulated Entity, the CFA Adviser will present the
Potential Co-Investment Transaction and the proposed allocation to the
directors of the Board eligible to vote under section 57(o) of the Act
(``Eligible Directors''), and the ``required majority,'' as defined in
section 57(o) of the Act (``Required Majority'') \12\ will approve such
Co-Investment Transaction prior to any investment by the participating
Regulated Entity.
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    \10\ ``Objectives and Strategies'' means a Regulated Entity's
investment objectives and strategies, as described in the Regulated
Entity's registration statement on Form N-2, other filings the
Regulated Entity has made with the Commission under the Securities
Act of 1933, as amended (the ``1933 Act''), or under the Securities
and Exchange Act of 1934, as amended, and the Regulated Entity's
reports to shareholders.
    \11\ ``Board-Established Criteria'' means criteria that the
Board of a Regulated Entity may establish from time to time to
describe the characteristics of Potential Co-Investment Transactions
regarding which each Adviser to the Regulated Entity should be
notified under condition 1. The Board-Established Criteria will be
consistent with a Regulated Entity's Objectives and Strategies. If
no Board-Established Criteria are in effect, then each Adviser to a
Regulated Entity will be notified of all Potential Co-Investment
Transactions that fall within the Regulated Entity's then-current
Objectives and Strategies. Board-Established Criteria will be
objective and testable, meaning that they will be based on
observable information, such as industry/sector of the issuer,
minimum EBITDA of the issuer, asset class of the investment
opportunity or required commitment size, and not on characteristics
that involve a discretionary assessment. Each Adviser to a Regulated
Entity may from time to time recommend criteria for the Board's
consideration, but Board-Established Criteria will only become
effective if approved by a majority of the Independent Directors.
The Independent Directors of a Regulated Entity may at any time
rescind, suspend, or qualify its approval of any Board-Established
Criteria, though applicants anticipate that, under normal
circumstances, the Board would not modify these criteria more often
than quarterly.
    \12\ In the case of a Regulated Entity that is a registered
closed-end fund, the Board members that make up the Required
Majority will be determined as if the Regulated Entity were a BDC
subject to section 57(o).
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    13. Applicants state that KKR Credit has an investment committee
through which KKR Credit will carry out its obligation under condition
1 to make a determination as to the appropriateness of the Potential
Co-Investment Transaction for any Regulated Entity. Applicants
represent that in the case of a Potential Co-Investment Transaction,
KKR Credit would apply its allocation policies and procedures in
determining the proposed allocation for the Regulated Entity consistent
with the requirements of condition 2(a). Applicants further note that
each CFA Adviser and KKR Credit has adopted its own allocation policies
and procedures that take into account the allocation policies and
procedures for the Regulated Entities. Applicants believe that while
each KKR Credit client may not participate in each investment
opportunity, over time each KKR Credit client would participate in
investment opportunities fairly and equitably.
    14. Applicants submit that, if a Potential Co-Investment
Transaction were within the investment objectives and strategies of a
Sub-Advised Affiliated Fund, the KKR Credit Adviser would have primary
responsibility for the investment, including making the initial
investment recommendation. Applicants further note that the KKR Credit
Adviser will be responsible for complying with the conditions of the
Order that relate to any Sub-Advised Affiliated Fund. Applicants state
that if the KKR Credit Adviser and KKR Primary Adviser agree that the
Sub-Advised Affiliated Fund should invest in the Potential Co-
Investment Transaction and at what size of investment, the KKR Credit
Adviser would then determine an allocation for the Regulated Entities
and Affiliated Investors, including the Sub-Advised Affiliated Fund.
    15. Applicants acknowledge that some of the Affiliated Investors
may not be funds advised by a KKR Credit Adviser because they are KKR
Proprietary Accounts. The KKR Proprietary Accounts are either entities
that are advised by a KKR Credit Adviser pursuant to an investment
management agreement or, in the case of KCM Companies, are broker-
dealers that may hold financial assets in a principal capacity.
Applicants do not believe the participation of these KKR Proprietary
Accounts in Co-Investment Transactions should raise issues under the
conditions

of this Application because KKR's and a KKR Credit Adviser's allocation
policies and procedures provide that investment opportunities are
offered to client accounts before they are offered to KKR Proprietary
Accounts, even if the KKR Proprietary Accounts are the first to learn
of an investment opportunity.
    16. Under condition 16, if an Adviser or its principals, or any
person controlling, controlled by, or under common control with the
Adviser or its principals, and any Affiliated Investor (collectively,
the ``Holders'') own in the aggregate more than 25 percent of the
outstanding voting shares of a Regulated Entity (``Shares''), then the
Holders will vote such Shares as directed by an independent third party
when voting on (1) the election of directors; (2) the removal of one or
more directors; or (3) all other matters under either the Act or
applicable state law affecting the Board's composition, size or manner
of election.
    17. No Independent Director of a Regulated Entity will have a
financial interest in any Co-Investment Transaction, other than
indirectly through share ownership in one of the Regulated Entities.

Applicants' Legal Analysis

    1. Section 57(a)(4) of the Act prohibits certain affiliated persons
of a BDC from participating in joint transactions with the BDC or a
company controlled by a BDC in contravention of rules as prescribed by
the Commission. Under section 57(b)(2) of the Act, any person who is
directly or indirectly controlling, controlled by, or under common
control with a BDC is subject to section 57(a)(4). Section 57(i) of the
Act provides that, until the Commission prescribes rules under section
57(a)(4), the Commission's rules under section 17(d) of the Act
applicable to registered closed-end investment companies will be deemed
to apply to transactions subject to section 57(a)(4). Because the
Commission has not adopted any rules under section 57(a)(4), rule 17d-1
applies.
    2. Rule 17d-1 under the Act prohibits affiliated persons of a
registered investment company from participating in joint transactions
with the company unless the Commission has granted an order permitting
such transactions. In considering whether to grant an application under
rule 17d-1, the Commission considers whether the participation by the
company is consistent with the provisions, policies, and purposes of
the Act and the extent to which such participation is on a basis
different from or less advantageous than that of other participants.
    3. Applicants submit that each of the Affiliated Investors and the
Regulated Entities could be deemed to be a person related to each other
Regulated Entity in a manner described by section 57(b) by virtue of
being under common control. In addition, section 57(b) applies to any
investment adviser to a Regulated Entity, including sub-advisers.
Applicants submit that KKR Credit, in its role as sub-adviser to CCT I
and CCT II, could be deemed to be a person related to CCT I and CCT II
in a manner described in section 57(b). Therefore, KKR Credit and any
person under common control with KKR Credit (such as the Regulated
Entities and the Affiliated Investors) could be prohibited from
participating in the Co-Investment Program with CCT I and CCT II by
section 57(a)(4) and Rule 17d-1.
    4. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
affiliated persons of a registered investment company from
participating in joint transactions with the company unless the
Commission has granted an order permitting such transactions. In
passing upon applications under rule 17d-1, the Commission considers
whether the company's participation in the joint transaction is
consistent with the provisions, policies, and purposes of the Act and
the extent to which such participation is on a basis different from or
less advantageous than that of other participants.
    5. Applicants state that in the absence of the requested relief,
the Regulated Entities would be, in some circumstances, limited in
their ability to participate in attractive and appropriate investment
opportunities. Applicants believe that the proposed terms and
conditions will ensure that the Co-Investment Transactions are
consistent with the protection of each Regulated Entity's shareholders
and with the purposes intended by the policies and provisions of the
Act. Applicants state that the Regulated Entities' participation in the
Co-Investment Transactions will be consistent with the provisions,
policies, and purposes of the Act and on a basis that is not different
from or less advantageous than that of other participants.

Applicants' Conditions

    Applicants agree that the Order will be subject to the following
conditions:
    1. Each time a KKR Credit Adviser considers a Potential Co-
Investment Transaction for an Affiliated Investor or another Regulated
Entity that falls within a Regulated Entity's then-current Objectives
and Strategies and Board-Established Criteria, each Adviser to a
Regulated Entity will make an independent determination of the
appropriateness of the investment for the Regulated Entity in light of
the Regulated Entity's then-current circumstances.
    2. (a) If each Adviser to a Regulated Entity deems participation in
any Potential Co-Investment Transaction to be appropriate for the
Regulated Entity, the Adviser (or Advisers, if there are more than one)
will then determine an appropriate level of investment for such
Regulated Entity.
    (b) If the aggregate amount recommended by the Adviser (or
Advisers, if there are more than one) to a Regulated Entity to be
invested by the Regulated Entity in the Potential Co-Investment
Transaction, together with the amount proposed to be invested by the
other participating Regulated Entities and Affiliated Investors,
collectively, in the same transaction, exceeds the amount of the
investment opportunity, the amount of the investment opportunity will
be allocated among the Regulated Entities and such Affiliated
Investors, pro rata based on each participant's Available Capital for
investment in the asset class being allocated, up to the amount
proposed to be invested by each.\13\ The Adviser (or Advisers, if there
are more than one) to a Regulated Entity will provide the Eligible
Directors of a Regulated Entity with information concerning each
participating party's Available Capital to assist the Eligible
Directors with their review of the Regulated Entity's investments for
compliance with these allocation procedures.
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    \13\ ``Available Capital'' means (a) for each Regulated Entity,
the amount of capital available for investment determined based on
the amount of cash on hand, existing commitments and reserves, if
any, the targeted leverage level, targeted asset mix and other
investment policies and restrictions set from time to time by the
Board of the applicable Regulated Entity or imposed by applicable
laws, rules, regulations or interpretations, and (b) for each
Affiliated Investor (excluding KKR Proprietary Accounts), the amount
of capital available for investment determined based on the amount
of cash on hand, existing commitments and reserves, if any, the
targeted leverage level, targeted asset mix and other investment
policies and restrictions set by the Affiliated Investors'
directors, general partners, or adviser or imposed by applicable
laws, rules, regulations or interpretations.
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    (c) After making the determinations required in conditions 1 and
2(a) above, the Adviser to the Regulated Entity (or Advisers, if there
are more than one) will distribute written information concerning the
Potential Co-Investment Transaction, including the amount proposed to
be invested by each Regulated Entity and any Affiliated Investor, to
the Eligible Directors for their consideration. A Regulated Entity

will co-invest with one or more other Regulated Entities and/or an
Affiliated Investor only if, prior to the Regulated Entities' and the
Affiliated Investors' participation in the Potential Co-Investment
Transaction, a Required Majority concludes that:
    (i) The terms of the Potential Co-Investment Transaction, including
the consideration to be paid, are reasonable and fair to the Regulated
Entity and its shareholders and do not involve overreaching in respect
of the Regulated Entity or its shareholders on the part of any person
concerned;
    (ii) the Potential Co-Investment Transaction is consistent with:
    (A) The interests of the Regulated Entity's shareholders; and
    (B) the Regulated Entity's then-current Objectives and Strategies
and Board-Established Criteria;
    (iii) the investment by any other Regulated Entity or an Affiliated
Investor would not disadvantage the Regulated Entity, and participation
by the Regulated Entity would not be on a basis different from or less
advantageous than that of any other Regulated Entity or Affiliated
Investor; provided that, if another Regulated Entity or Affiliated
Investor, but not the Regulated Entity itself, gains the right to
nominate a director for election to a portfolio company's board of
directors or the right to have a board observer or any similar right to
participate in the governance or management of the portfolio company,
such event shall not be interpreted to prohibit a Required Majority
from reaching the conclusions required by this condition (2)(c)(iii),
if:
    (A) The Eligible Directors will have the right to ratify the
selection of such director or board observer, if any; and
    (B) the Adviser to the Regulated Entity (or Advisers, if there are
more than one) agrees to, and does, provide periodic reports to the
Regulated Entity's Board with respect to the actions of such director
or the information received by such board observer or obtained through
the exercise of any similar right to participate in the governance or
management of the portfolio company; and
    (C) any fees or other compensation that any other Regulated Entity
or any Affiliated Investor or any affiliated person of any other
Regulated Entity or an Affiliated Investor receives in connection with
the right of one or more Regulated Entities or Affiliated Investors to
nominate a director or appoint a board observer or otherwise to
participate in the governance or management of the portfolio company
will be shared proportionately among the participating Affiliated
Investors (who may, in turn, share their portion with their affiliated
persons) and any participating Regulated Entity in accordance with the
amount of each party's investment; and
    (iv) the proposed investment by the Regulated Entity will not
benefit the Adviser to the Regulated Entity (or Advisers, if there are
more than one), any other Regulated Entity, any KKR Primary Adviser or
the Affiliated Investors or any affiliated person of any of them (other
than the parties to the Co-Investment Transaction), except (A) to the
extent permitted by condition 13, (B) to the extent permitted under
sections 17(e) or 57(k) of the Act, as applicable, (C) in the case of
fees or other compensation described in condition 2(c)(iii)(C), or (D)
indirectly, as a result of an interest in the securities issued by one
of the parties to the Co-Investment Transaction.
    3. A Regulated Entity will have the right to decline to participate
in any Potential Co-Investment Transaction or to invest less than the
amount proposed.
    4. The Adviser to the Regulated Entity (or Advisers, if there are
more than one) will present to the Board of each Regulated Entity, on a
quarterly basis, a record of all investments in Potential Co-Investment
Transactions made by any of the other Regulated Entities or any of the
Affiliated Investors during the preceding quarter that fell within the
Regulated Entity's then-current Objectives and Strategies and Board-
Established Criteria that were not made available to the Regulated
Entity, and an explanation of why the investment opportunities were not
offered to the Regulated Entity. All information presented to the Board
pursuant to this condition will be kept for the life of the Regulated
Entity and at least two years thereafter, and will be subject to
examination by the Commission and its staff.
    5. Except for Follow-On Investments made in accordance with
condition 8,\14\ a Regulated Entity will not invest in reliance on the
Order in any issuer in which another Regulated Entity or an Affiliated
Investor, or any affiliated person of another Regulated Entity or
Affiliated Investor is an existing investor.
---------------------------------------------------------------------------

    \14\ This exception applies only to Follow-On Investments by a
Regulated Entity in issuers in which that Regulated Entity already
holds investments.
---------------------------------------------------------------------------

    6. A Regulated Entity will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of
securities to be purchased, settlement date, and registration rights
will be the same for each participating Regulated Entity and Affiliated
Investor. The grant to one or more Regulated Entities or Affiliated
Investors, but not the Regulated Entity itself, of the right to
nominate a director for election to a portfolio company's board of
directors, the right to have an observer on the board of directors or
similar rights to participate in the governance or management of the
portfolio company will not be interpreted so as to violate this
condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
    7. (a) If any Regulated Entity or Affiliated Investor elects to
sell, exchange or otherwise dispose of an interest in a security that
was acquired by one or more Regulated Entities and/or Affiliated
Investors in a Co-Investment Transaction, the applicable Adviser(s)
will: \15\
---------------------------------------------------------------------------

    \15\ Any KCM Company that is not advised by an Adviser is itself
deemed to be an Adviser for purposes of Conditions 7(a)(i) and
8(a)(i).
---------------------------------------------------------------------------

    (i) notify each Regulated Entity of the proposed disposition at the
earliest practical time; and
    (ii) formulate a recommendation as to participation by the
Regulated Entity in the disposition.
    (b) Each Regulated Entity will have the right to participate in
such disposition on a proportionate basis, at the same price and on the
same terms and conditions as those applicable to the Affiliated
Investors and any other Regulated Entity.
    (c) A Regulated Entity may participate in such disposition without
obtaining prior approval of the Required Majority if:
    (i) The proposed participation of each Regulated Entity and each
Affiliated Investor in such disposition is proportionate to its
outstanding investments in the issuer immediately preceding the
disposition;
    (ii) the Regulated Entity's Board has approved as being in the best
interests of the Regulated Entity the ability to participate in such
dispositions on a pro rata basis (as described in greater detail in the
application); and
    (iii) the Regulated Entity's Board is provided on a quarterly basis
with a list of all dispositions made in accordance with this condition.
In all other cases, the Adviser to the Regulated Entity (or Advisers,
if there are more than one) will provide their written recommendation
as to the Regulated Entity's participation to the Eligible Directors,
and the Regulated Entity will participate in such disposition solely to
the extent that a Required Majority determines that it is in the
Regulated Entity's best interests.

    (d) Each Regulated Entity and each Affiliated Investor will bear
its own expenses in connection with the disposition.
    8. (a) If any Regulated Entity or Affiliated Investor desires to
make a Follow-On Investment in a portfolio company whose securities
were acquired by the Regulated Entity and the Affiliated Investor in a
Co-Investment Transaction, the applicable Adviser(s) will:
    (i) Notify the Regulated Entity of the proposed transaction at the
earliest practical time; and
    (ii) formulate a recommendation as to the proposed participation,
including the amount of the proposed Follow-On Investment, by the
Regulated Entity.
    (b) A Regulated Entity may participate in such Follow-On Investment
without obtaining prior approval of the Required Majority if:
    (i) The proposed participation of each Regulated Entity and each
Affiliated Investor in such investment is proportionate to its
outstanding investments in the issuer immediately preceding the Follow-
On Investment; and
    (ii) the Regulated Entity's Board has approved as being in the best
interests of such Regulated Entity the ability to participate in
Follow-On Investments on a pro rata basis (as described in greater
detail in the application). In all other cases, the Adviser to the
Regulated Entity (or Advisers, if there are more than one) will provide
their written recommendation as to such Regulated Entity's
participation to the Eligible Directors, and the Regulated Entity will
participate in such Follow-On Investment solely to the extent that a
Required Majority determines that it is in such Regulated Entity's best
interests.
    (c) If, with respect to any Follow-On Investment:
    (i) The amount of a Follow-On Investment is not based on the
Regulated Entities' and the Affiliated Investors' outstanding
investments immediately preceding the Follow-On Investment; and
    (ii) the aggregate amount recommended by the Adviser (or Advisers
if there are more than one) to a Regulated Entity to be invested by the
Regulated Entity in the Follow-On Investment, together with the amount
proposed to be invested by the other Regulated Entities and the
participating Affiliated Investors in the same transaction, exceeds the
amount of the opportunity, then the amount invested by each such party
will be allocated among them pro rata based on each participant's
Available Capital for investment in the asset class being allocated, up
to the amount proposed to be invested by each.
    (d) The acquisition of Follow-On Investments as permitted by this
condition will be considered a Co-Investment Transaction for all
purposes and subject to the other conditions set forth in the
application.
    9. The Independent Directors of each Regulated Entity will be
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including
investments made by other Regulated Entities or Affiliated Investors
that the Regulated Entity considered but declined to participate in, so
that the Independent Directors may determine whether all investments
made during the preceding quarter, including those investments that the
Regulated Entity considered but declined to participate in, comply with
the conditions of the Order. In addition, the Independent Directors
will consider at least annually (a) the continued appropriateness for
the Regulated Entity of participating in new and existing Co-Investment
Transactions, and (b) the continued appropriateness of any Board-
Established Criteria.
    10. Each Regulated Entity will maintain the records required by
section 57(f)(3) of the Act as if each of the Regulated Entities were a
BDC and each of the investments permitted under these conditions were
approved by a Required Majority under section 57(f) of the Act.
    11. No Independent Director of a Regulated Entity will also be a
director, general partner, managing member or principal, or otherwise
an ``affiliated person'' (as defined in the Act) of any Affiliated
Investor.
    12. The expenses, if any, associated with acquiring, holding or
disposing of any securities acquired in a Co-Investment Transaction
(including, without limitation, the expenses of the distribution of any
such securities registered for sale under the 1933 Act) shall, to the
extent not payable by the applicable Adviser(s) under their respective
advisory agreements with the Regulated Entities and the Affiliated
Investors, be shared by the Regulated Entities and the Affiliated
Investors in proportion to the relative amounts of the securities held
or to be acquired or disposed of, as the case may be.
    13. Any transaction fee (including break-up or commitment fees but
excluding broker's fees contemplated by section 17(e) or 57(k) of the
Act, as applicable) \16\ received in connection with a Co-Investment
Transaction will be distributed to the participating Regulated Entities
and Affiliated Investors on a pro rata basis based on the amount they
invested or committed, as the case may be, in such Co-Investment
Transaction. If any transaction fee is to be held by an Adviser pending
consummation of the transaction, the fee will be deposited into an
account maintained by the Adviser at a bank or banks having the
qualifications prescribed in section 26(a)(1) of the Act, and the
account will earn a competitive rate of interest that will also be
divided pro rata among the participating Regulated Entities and
Affiliated Investors based on the amount they invest in the Co-
Investment Transaction. None of the other Regulated Entities,
Affiliated Investors, the applicable Adviser(s), any KKR Primary
Adviser nor any affiliated person of the Regulated Entities or the
Affiliated Investors will receive additional compensation or
remuneration of any kind as a result of or in connection with a Co-
Investment Transaction (other than (a) in the case of the Regulated
Entities and the Affiliated Investors, the pro rata transaction fees
described above and fees or other compensation described in condition
2(c)(iii)(C), and (b) in the case of the Advisers and KKR Primary
Advisers, investment advisory fees paid in accordance with the
Regulated Entities' and the Affiliated Investors' investment advisory
agreements).
---------------------------------------------------------------------------

    \16\ Applicants are not requesting and the Commission is not
providing any relief for transaction fees received in connection
with any Co-Investment Transaction.
---------------------------------------------------------------------------

    14. The KKR Proprietary Accounts will not be permitted to invest in
a Potential Co-Investment Transaction, except to the extent the demand
from the Regulated Entities and the other Affiliated Investors is less
than the total investment opportunity.
    15. The Advisers to the Regulated Entities and Affiliated Investors
will maintain written policies and procedures reasonably designed to
ensure compliance with the foregoing conditions. These policies and
procedures will require, among other things, that each of the Advisers
to each Regulated Entity will be notified of all Potential Co-
Investment Transactions that fall within such Regulated Entity's then-
current Objectives and Strategies and Board-Established Criteria and
will be given sufficient information to make its independent
determination and recommendations under conditions 1, 2(a), 7 and 8.
    16. If the Holders own in the aggregate more than 25 percent of the
Shares of a Regulated Entity, then the Holders

will vote such Shares as directed by an independent third party when
voting on (1) the election of directors; (2) the removal of one or more
directors; or (3) all other matters under either the Act or applicable
state law affecting the Board's composition, size or manner of
election.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-10795 Filed 5-25-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Notices]
[Page 41623]
[FR Doc No: 2020-14924]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-3527-EM; Docket ID FEMA-2020-0001]

Louisiana; Emergency and Related Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: This is a notice of the Presidential declaration of an
emergency for the State of Louisiana (FEMA-3527-EM), dated June 7,
2020, and related determinations.

DATES: The declaration was issued June 7, 2020.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter
dated June 7, 2020, the President issued an emergency declaration under
the authority of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:

    I have determined that the emergency conditions in certain areas
of the State of Louisiana resulting from Tropical Storm Cristobal
beginning on June 5, 2020, and continuing, are of sufficient
severity and magnitude to warrant an emergency declaration under the
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42
U.S.C. 5121 et seq. (``the Stafford Act''). Therefore, I declare
that such an emergency exists in the State of Louisiana.
    You are authorized to provide appropriate assistance for
required emergency measures, authorized under Title V of the
Stafford Act, to save lives and to protect property and public
health and safety, and to lessen or avert the threat of a
catastrophe in the designated areas. Specifically, you are
authorized to provide Public Assistance Category B emergency
protective measures, limited to direct Federal assistance and
reimbursement for mass care including evacuation and shelter support
in selected areas and Public Assistance Category B emergency
protective measures, limited to direct Federal assistance in the
other designated areas.
    Consistent with the requirement that Federal assistance be
supplemental, any Federal funds provided under the Stafford Act for
Public Assistance will be limited to 75 percent of the total
eligible costs. In order to provide Federal assistance, you are
hereby authorized to allocate from funds available for these
purposes such amounts as you find necessary for Federal emergency
assistance and administrative expenses.
    Further, you are authorized to make changes to this declaration
for the approved assistance to the extent allowable under the
Stafford Act.

    The Federal Emergency Management Agency (FEMA) hereby gives notice
that pursuant to the authority vested in the Administrator, Department
of Homeland Security, under Executive Order 12148, as amended, John E.
Long, of FEMA is appointed to act as the Federal Coordinating Officer
for this declared emergency.
    The following areas of the State of Louisiana have been designated
as adversely affected by this declared emergency:

    Public Assistance Category B emergency protective measures,
limited to direct Federal assistance and reimbursement for mass care
including evacuation and shelter support for the parishes of Acadia,
Allen, Ascension, Assumption, Beauregard, Calcasieu, Cameron, East
Baton Rouge, East Feliciana, Evangeline, Iberia, Iberville,
Jefferson, Jefferson Davis, Lafayette, Lafourche, Livingston,
Orleans, Plaquemines, Pointe Coupee, St. Bernard, St. Charles, St.
James, St. John the Baptist, St. Landry, St. Martin, St. Mary,
Terrebonne, Vermilion, West Baton Rouge, and West Feliciana.
    Public Assistance Category B emergency protective measures,
limited to direct Federal assistance for the parishes of Avoyelles,
Bienville, Bossier, Caddo, Caldwell, Catahoula, Claiborne,
Concordia, De Soto, East Carroll, Franklin, Grant, Jackson, La
Salle, Lincoln, Madison, Morehouse, Natchitoches, Ouachita, Rapides,
Red River, Richland, Sabine, St. Helena, St. Tammany, Tangipahoa,
Tensas, Union, Vernon, Washington, Webster, West Carroll, and Winn.
    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Pete Gaynor,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2020-14924 Filed 7-9-20; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register: September 14, 2009 (Volume 74, Number 176)]
[Proposed Rules]
[Page 46958-46964]
[DOCID:fr14se09-23]

=======================================================================
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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1926

[Docket OSHA-S215-2006-0063]
RIN 1218-AB67

Electric Power Generation, Transmission, and Distribution;
Electrical Protective Equipment; Limited Reopening of Record; Notice of
Informal Public Hearing

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Proposed rule; limited reopening of the rulemaking record and
notice of public hearing.

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

SUMMARY: On June 15, 2005, OSHA published a proposed rule to revise the
general industry and construction standards for electric power
generation, transmission, and distribution work and for electrical
protective equipment. The proposed general industry and construction
standards for electric power generation, transmission, and distribution
work included revised minimum approach distance tables. Those tables
limit how close an employee (or a conductive object he or she is
contacting) may get to an energized circuit part. In light of recent
changes to one of the consensus standards on which OSHA relied in
formulating the proposed minimum approach distances, OSHA is reopening
the record on this proposal to obtain additional comments related to
the proposed minimum approach distances. The record will remain open on
this limited basis until October 15, 2009. OSHA is also announcing a
public hearing on the issues raised in this notice.

DATES: Comments: Comments must be submitted (transmitted, postmarked,
or delivered) no later than October 15, 2009.
    Notices of intention to appear: Interested persons who intend to
present testimony or question witnesses at the public hearing must
submit (transmit, postmark, or deliver) notices

of intention to appear no later than October 1, 2009.
    Hearing testimony and evidence: Interested persons who request more
than 10 minutes to present testimony or who intend to submit
documentary evidence at the hearing must submit (transmit, postmark, or
deliver) the full text of their testimony and all documentary evidence
no later than October 15, 2009.
    Public hearing: The informal public hearing will be held from 9:30
a.m. to 1:30 p.m. on October 28, 2009.

ADDRESSES: Public hearing: The informal public hearing will be held in
Room N3437A, B, and C at the U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210.
    Comments, notices of intention to appear, hearing testimony, and
documentary evidence: You may submit comments, notices of intention to
appear, hearing testimony, and documentary evidence, identified by
Docket No. OSHA-S215-2006-0063, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     Fax: If your comments, including attachments, do not
exceed 10 pages, you may fax them to the OSHA Docket Office at (202)
693-1648.
     Mail, hand delivery, express mail, messenger, or courier
service: You must submit two copies of your comments and attachments to
the OSHA Docket Office, Docket No. OSHA-S215-2006-0063, U.S. Department
of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC
20210; telephone<PHONE_NUMBER> (OSHA's TTY number is<PHONE_NUMBER>).
Deliveries (hand, express mail, messenger, and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., ET.
    Instructions: All submissions must include the agency name and the
docket number (Docket No. OSHA-S215-2006-0063) or regulation identifier
number (RIN 1218-AB67) for this rulemaking. All comments received will
be posted without change to http://dockets.osha.gov, including any
personal information provided.
    Docket: To read or download comments and materials submitted in
response to this Federal Register notice, go to Docket OSHA-S215-2006-
0063 at http://www.regulations.gov or at the OSHA Docket Office at the
previously listed address. All comments and submissions are listed in
the http://www.regulations.gov index. However, some information (for
example, copyrighted material) is not publicly available to read or
download through that Web page. All comments and submissions, including
copyrighted material, are available for inspection and copying at the
OSHA Docket Office.
    Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also are available at OSHA's Web page
at http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: Press inquiries and general
information: Ms. Jennifer Ashley, Office of Communications, Room N-
3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone<PHONE_NUMBER>.
    Technical information: David Wallis, OSHA, Office of Engineering
Safety, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210; telephone<PHONE_NUMBER>.
    Hearings: Ms. Veneta Chatmon, OSHA, Office of Communications, Room
N-3647; 200 Constitution Avenue, NW., Washington, DC 20210; telephone
(202) 693-1999; e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: On June 15, 2005, OSHA issued a proposed
rule to revise the general industry and construction standards for
electric power generation, transmission, and distribution work and for
electrical protective equipment (70 FR 34822). The Agency solicited
public comments, and held a public hearing on March 6 through 14, 2006.
Administrative Law Judge William Colwell set a deadline of July 14,
2006, for filing written comments, summations, position statements, and
briefs.
    The proposed requirements for electric power generation,
transmission, and distribution work for general industry and
construction would be contained in 29 CFR 1910.269 and 29 CFR part
1926, subpart V (Sec. Sec.  1926.950 through 1926.968), respectively.
Proposed Sec.  1926.960(c)(1) would require employees to maintain
minimum approach distances from exposed energized parts. The minimum
approach distances are specified in proposed Tables V-2 through V-6.
Existing Sec.  1910.269(l)(2) and proposed Tables R-6 through R-10
contain equivalent requirements for general industry. OSHA developed
the minimum approach distance tables in the proposal using principles
adopted from the 1993 National Electrical Safety Code (NESC, ANSI \1\
C2-1993) \2\ and ANSI/IEEE \3\ Standard 516-1987. (See 70 FR 34822, at
34861 (June 15, 2005) and 73 FR 62942 (Oct. 22, 2008) for a detailed
description of the methods OSHA used to calculate the proposed minimum
approach distances.)
---------------------------------------------------------------------------

    \1\ ANSI is the American National Standards Institute.
    \2\ In promulgating the general industry standard at Sec.
1910.269 in 1994, OSHA used minimum approach distances that matched
the corresponding values in the 1993 NESC. The NESC subcommittee
subsequently revised their distances in a tentative interim
amendment correcting the tables in the 1993 NESC. The minimum
approach distances in the pending proposal for both subpart V and
Sec.  1910.269 are identical to the minimum approach distances that
appeared in the NESC through the 2002 edition. For the 2007 edition,
the NESC adopted minimum approach distances that were the same for
voltages of 72.5 kV and lower, but that were larger for voltages of
72.6 kV and higher. The increase in minimum approach distances for
voltages of 72.6 kV and higher was due to the use of minimum tool
insulation distance rather than minimum air insulation distance as
described later in this notice.
    \3\ IEEE is the Institute of Electrical and Electronics
Engineers, Inc.
---------------------------------------------------------------------------

    On October 22, 2008, OSHA published a Federal Register notice to
reopen the record on a limited basis for a period of 30 days, or until
November 21, 2008, because the IEEE technical committee responsible for
revising IEEE Standard 516 identified what in its view was an error in
the calculations of phase-to-phase minimum approach distances for
nominal voltages 230 kV and higher (73 FR 62942). The equation used to
calculate the electrical component of the minimum approach distance for
voltages over 72.5 kV included a term, a, that represented the
saturation factor for the transient overvoltage involved. This factor,
which was taken from a graph,\4\ increased substantially with
increasing voltage. The minimum approach distances for phase-to-phase
exposures were calculated using an a factor corresponding to the phase-
to-ground transient overvoltage rather than for the higher phase-to-
phase transient overvoltage. Because the minimum approach distances in
OSHA's 2005 proposal were based on the same equations called into
question by the IEEE technical committee, the same issue potentially
affected the minimum approach distances in OSHA's proposal.
---------------------------------------------------------------------------

    \4\ The graph, which was published in IEEE Committee Report,
``Recommendations for safety in live-line maintenance'' (IEEE T&D,
vol. PAS-87, no. 2, pp. 346-352, Feb. 1968), was taken from test
data. However, the underlying test data were lost. Consequently, the
a factor had to be read from the published graph.
---------------------------------------------------------------------------

    At the time the Agency published the reopening notice in October
2008, the IEEE committee was voting on a draft revised IEEE standard
that would have

corrected the perceived error by (1) using a formula to calculate the a
factor to avoid errors that could be made in reading values from the
graph; and (2) extrapolating values for the a factor beyond the range
of the underlying test data. In its reopening notice, OSHA asked for
comments on IEEE's proposed approach for resolving this issue and
raised several questions related to whether the final rule should
reflect any elements of the draft IEEE standard.\5\ The reopening
notice limited comments to issues related to minimum approach distances
for voltages of 72.6 kV and higher (73 FR 62942).
---------------------------------------------------------------------------

    \5\ OSHA is repeating, in this notice, several of these
questions in slightly different form now that IEEE has formally
published a new version of Standard 516.
---------------------------------------------------------------------------

    OSHA received only eight responses to the 2008 reopening notice.
Most commenters generally supported the idea of incorporating into the
final rule IEEE's proposed approach for calculating phase-to-phase
minimum approach distances for voltages of 72.6 kV and higher. Two
commenters, the International Brotherhood of Electrical Workers and
Edison Electric Institute (EEI), recommended that OSHA open the record
again when the IEEE committee adopted a final standard (see Document
IDs: \6\ OSHA-S215-2006-0063-0526, OSHA-S215-2006-0063-0527). EEI also
requested an extension of the comment period, an expansion of the scope
of the reopening to cover minimum approach distances for voltages below
72.6 kV, and a public hearing (see Document ID: OSHA-S215-2006-0063-
0530). This notice resolves all of EEI's pending requests.
---------------------------------------------------------------------------

    \6\ These are the Document IDs on the Federal eRulemaking
Portal, http://www.regulations.gov.
---------------------------------------------------------------------------

A. Minimum Approach Distances for Phase-to-Phase Exposures for Voltages
of 72.6 kV and Higher

    The IEEE committee recently adopted and published a new edition of
IEEE Standard 516.\7\ The revised standard adopts a new methodology,
using a different set of formulas, for calculating phase-to-phase
minimum approach distances for voltages of 72.6 kV and higher.\8\ These
formulas are derived from testing for line configurations (that is, for
system design) rather than for live-line work. In other words, the
underlying formulas are intended to be used for determining appropriate
conductor spacing rather than for determining minimum approach
distances appropriate for employees performing live-line work. To
account for the presence of the employee working in an aerial lift
bucket within the air gap between the two phase conductors, the
committee incorporated the concept of a floating electrode in the air
gap. The committee's approach to determining the electrical component
of the minimum approach distance can be summarized as follows:
---------------------------------------------------------------------------

    \7\ This document, IEEE Standard 516-2009, is available for
inspection and copying in the Docket Office at the address listed in
the ADDRESSES section of this notice.
    \8\ The approach for extrapolating values for the a factor that
the IEEE committee was considering at the time of the 2008 reopening
notice, which assumed that the value continued to increase in a
linear fashion, failed to achieve consensus (73 FR 62942).
---------------------------------------------------------------------------

    1. Start with a formula to calculate the critical sparkover voltage
\9\ for the distance between two conductors.
---------------------------------------------------------------------------

    \9\ The critical sparkover voltage, or V50, is the
voltage that will sparkover a specified distance 50 percent of the
time.
---------------------------------------------------------------------------

    2. Modify the formula to account for a 3.3-meter floating electrode
to represent an employee working within an aerial lift bucket between
the phase conductors.
    3. Modify the formula to convert the critical sparkover voltage to
a withstand voltage.\10\
---------------------------------------------------------------------------

    \10\ The withstand voltage is the voltage at which sparkover is
not likely to occur across a specified distance. It is the voltage
taken at the 3[sigma] point below the sparkover voltage, assuming
that the sparkover curve follows a normal distribution.
---------------------------------------------------------------------------

    4. Determine the maximum transient overvoltage on the line and
substitute that value for the withstand voltage.
    5. Rearrange the equation to solve for distance.
    In more technical detail, this approach is as follows:
    1. The equation for calculating the critical sparkover voltage for
a given distance between two conductors includes a gap factor, k. This
factor depends on several variables:

alpha = the proportion of the negative switching impulse voltage to
the total phase-to-phase impulse voltage.
Ddesign L	L = the design phase-to-phase clearance
H = the average height of the phase above the ground

    Table 1 shows the values recommended by IEEE Standard 516-2009 for
these variables and the resultant gap factors.

                  Table 1--Recommended Gap Factors (k)
------------------------------------------------------------------------
                                                Ddesign L	L/
      Phase-to-phase voltage          Alpha          H            k
------------------------------------------------------------------------
<= 242 kV........................         0.33          0.8        1.451
> 242 kV.........................         0.41          0.8        1.530
------------------------------------------------------------------------

    IEEE Standard 516-2009 uses the following equation to calculate the
critical sparkover voltage for the designed gap between two phase
conductors:
[GRAPHIC] [TIFF OMITTED] TP14SE09.000

Where:

V50 = the critical sparkover voltage in kilovolts
k = the gap factor from Table 1
Dl-l = the sparkover distance in meters
    2. When live-line bare-hand work\11\ is performed, the employee is
typically positioned between two or more phase conductors. The employee
could be working, for example, from an aerial lift platform or a
conductor cart. These devices and the worker are both conductive. The
presence of a conductive object in the air gap reduces its dielectric
strength. IEEE Standard 516-2009 introduces a constant, KF, to account
for the presence of the employee and other conductive objects in the
air gap. IEEE Standard 516-2009 uses KF equal to 0.9 to accommodate a
3.3-meter conductive object in the air gap. This value is equivalent to
a 10 percent reduction in the dielectric strength of the gap.
---------------------------------------------------------------------------

    \11\ This is work performed with the employee at the same
potential as one of the phase conductors. The employee is insulated,
by air or another insulating medium, from the other phase conductors
and from ground.
---------------------------------------------------------------------------

    With this factor included, the equation for the critical sparkover
voltage is:
[GRAPHIC] [TIFF OMITTED] TP14SE09.001

    3. IEEE sets the withstand voltage at a level that is 3[sigma]
lower than the critical

sparkover voltage, as indicated in the following equation:

VW = (1--3[sigma])V50

Where:

VW = the withstand voltage
V50 = the critical sparkover voltage
[sigma] = 5 percent for a normal distribution

    4. To solve for the electrical component of the clearance, the
maximum transient overvoltage is substituted for the withstand voltage.
The IEEE committee used the following equation to calculate the maximum
transient overvoltage on the line:

TL	L = 1.35TL	G + 0.45

Where:

TL	L = the phase-to-phase maximum transient overvoltage in per unit
TL	G = the phase-to-ground maximum transient overvoltage in per unit

    5. Substituting the values of the various constants and solving
these equations for distance, IEEE Standard 516-2009 uses the following
equations to calculate the minimum air insulation distance:
    For voltages less than or equal to 242 kV:
    [GRAPHIC] [TIFF OMITTED] TP14SE09.002

    For voltages more than 242 kV:
    [GRAPHIC] [TIFF OMITTED] TP14SE09.003

Where:

DL	L = the minimum air insulation distance (the minimum distance
needed to prevent sparkover with air alone as the insulating medium)
TL	G = the phase-to-ground maximum transient overvoltage in per unit
VL	L = the rms phase-to-phase system voltage

    Tools in the air gap. The presence of an insulated tool in the air
gap reduces the air gap's dielectric strength. IEEE Standard 516-2009
generally gives two values for the electrical component of the minimum
approach distance: One in air (called MAID \12\) and one with a tool in
the air gap (called MTID \13\).\14\ Unlike the most recent edition of
the NESC,\15\ which uses the tool distance plus an ergonomic component
(0.31 or 0.61 meters) in setting minimum approach distances, IEEE
Standard 516-2009 does not provide either the tool distance or a means
of calculating it for phase-to-phase exposures. Section <IP_ADDRESS>
justifies this as follows:
---------------------------------------------------------------------------

    \12\ MAID is the minimum air insulation distance.
    \13\ MTID is the minimum tool insulation distance.
    \14\ IEEE Standard 516-2009 increases the electrical component
of the minimum approach distance by 10 percent (6 percent for the
tool and 4 percent for intangibles) before the saturation factor is
applied.
    \15\ This document, NESC, ANSI C2-2007, is available for
inspection and copying in the Docket Office at the address listed in
the ADDRESSES section of this notice.

    The definition of MTID applies only to line-to-ground
application. It is rare that a worker would be at the potential of
one phase while working on another phase. If a nonconductive object,
such as an insulated tool, is placed in the air gap joining two
phases, an engineering study should be performed. [Additional]
testing is required to develop a line-to-line MTID. If a line-to-
line MTID is required, the same factor as used in the line-to-ground
distance may be used. Industry practices normally use an MTID that
is the same as or greater than the MAID.

B. Minimum Approach Distances for Voltages Up to 72.5 kV

    IEEE Standard 516-2009 contains a slightly revised methodology for
calculating minimum approach distances for voltages up to 72.5 kV. In
the past, IEEE Standard 516 calculated these distances using sparkover
distances in IEEE Standard 4-1995, which are based on 60-Hz rod-to-rod
sparkover voltages. The IEEE committee identified, in its view, two
problems with continuing to use these distances without further
adjustment. First, the distances are based on testing with 60-Hz
voltages, not transient impulses. The sparkover voltage for a given
distance is higher for a transient overvoltage than for an equal 60-Hz
voltage. Second, the voltages in IEEE Standard 4-1995 are sparkover
voltages, not withstand voltages. The withstand voltage for a given
distance is smaller than the corresponding sparkover voltage. Thus, the
two problems identified by the IEEE committee work in opposite
directions. The first one would decrease the minimum approach distance;
the second would increase it. IEEE Standard 516-2009 resolves both
problems with resultant minimum approach distances that are slightly
smaller than those in earlier editions. To overcome the first problem,
IEEE Standard 516-2009 applies an impulse test factor of 1.3 to convert
60-Hz sparkover voltage to the critical sparkover voltage for a
transient overvoltage. The standard then uses a 3[sigma] margin (0.85)
to convert the critical sparkover voltage to a withstand voltage. This
addresses the second problem.
    Table 2 shows a comparison of the 60-Hz sparkover voltage with the
transient overvoltage withstand voltage for different rod-to-rod air
gaps. This table shows that a given air gap can withstand a somewhat
higher transient overvoltage than it can a 60-Hz voltage. The
relationship between the electrical component of the minimum approach
distance and the maximum transient overvoltage in this range is linear
and, in IEEE Standard 516-2009, is represented by the following linear
formula for phase-to-ground exposures:\16\
---------------------------------------------------------------------------

    \16\ IEEE Standard 516 uses this equation for voltages more than
27.00 kV but less than or equal to 72.5 kV. For voltages less than
27.00 kV, IEEE Standard 516 uses a distance of 0.02 meters, with the
following explanation: ``When the TOVPeak is less than
27.00 kV, sufficient test data are not available to calculate the
MAID, which is less than 2 cm or 0.06 ft.''
[GRAPHIC] [TIFF OMITTED] TP14SE09.004

---------------------------------------------------------------------------
Where:

DM = Distance in meters
TOV = Maximum phase-to-ground transient overvoltage (peak)

    The corresponding formula for phase-to-phase exposures is:
    [GRAPHIC] [TIFF OMITTED] TP14SE09.005

Where:

DM = Distance in meters
TOV = Maximum phase-to-phase transient overvoltage (peak)

    Table 2--Comparison of 60-Hz Sparkover With Transient Overvoltage
                                Withstand
------------------------------------------------------------------------
                                                                 Gap
                                                60-Hz  rod-    spacing
   Impulse transient overvoltage rod-to-rod        to-rod     from IEEE
             withstand (kV peak)*                sparkover    Std 4-1995
                                                 (kV peak)       (cm)
------------------------------------------------------------------------
27.6..........................................           25            2
39.8..........................................           36            3
50.8..........................................           46            4
58.6..........................................           53            5
66.3..........................................           60            6
77.4..........................................           70            8
87.3..........................................           79           10
95............................................           86           12
105...........................................           95           14
115...........................................          104           16
123.8.........................................          112           18
132.6.........................................          120           20
158...........................................          143           25
184.5.........................................          167           30
212.2.........................................          192           35
240.9.........................................          218           40
268.5.........................................          243           45
298.4.........................................          270           50
355.8.........................................          322           60
------------------------------------------------------------------------
* The voltage in this column equals the voltage in the second column x
  1.3 x 0.85.

C. Comparison of the Revised IEEE Minimum Approach Distances With
OSHA's Proposed Minimum Approach Distances

    Table 3 compares OSHA's proposed minimum approach distances with
distances resulting from the application of the changes described
earlier in IEEE Standard 516-2009.

                                Table 3--Comparison of Minimum Approach Distances
----------------------------------------------------------------------------------------------------------------
                                                                                Distance (m)
                                                             ---------------------------------------------------
                                                              Phase-to-ground exposure   Phase-to-phase exposure
                                                             ---------------------------------------------------
        Nominal voltage in kilovolts phase to phase*                         Proposed                  Proposed
                                                               IEEE 516-    tables R-6   IEEE 516-    tables R-6
                                                                  2009        and V-        2009       and V-2
                                                                            2[dagger]                  [dagger]
----------------------------------------------------------------------------------------------------------------
0.051 to 0.300..............................................        Avoid contact
                                                                    Avoid contact
                                                             ---------------------------------------------------
0.301 to 0.750..............................................         0.32         0.31         0.32         0.31
0.751 to 15.0...............................................         0.64         0.65         0.67         0.67
15.1 to 36.0................................................         0.73         0.77         0.84         0.86
36.1 to 46.0................................................         0.79         0.84         0.94         0.96
46.1 to 72.5................................................         0.89         1.00         1.15         1.20
72.6 to 121.................................................         1.01         0.95         1.37         1.29
138 to 145..................................................         1.15         1.09         1.62         1.50
161 to 169..................................................         1.29         1.22         1.88         1.71
230 to 242..................................................         1.71         1.59         2.77         2.27
345 to 362..................................................         2.75         2.59         4.32         3.80
500 to 550..................................................         3.61         3.42         6.01         5.50
765 to 800..................................................         4.82         4.53         8.87         7.91
----------------------------------------------------------------------------------------------------------------
* The voltage ranges correspond to those in OSHA's 2005 proposal. IEEE Standard 516-2009 has additional voltage
  ranges below 72.5 kV and has one additional higher voltage range, 362.1 to 420 kV. The distances shown in this
  table for IEEE Standard 516-2009 correspond to the minimum approach distance for the highest voltage in the
  range.
[dagger] See 70 FR 34822, June 15, 2005.

    As can be seen from Table 3, the IEEE's approach in the new version
of Standard 516 results in the following relative differences in
minimum distances:
    (1) Phase-to-ground and phase-to-phase exposures at voltages from
751 volts to 72.5 kV. The minimum approach distances in IEEE Standard
516-2009 for voltages from 751 volts to 72.5 kV are approximately 10
percent smaller than the corresponding values in OSHA's 2005 proposal.
It should be noted that, at these voltages, the minimum approach
distances in both OSHA's proposal and IEEE Standard 516-2009 reflect
minimum air insulation distances, not minimum tool insulation
distances.
    (2) Phase-to-phase exposures at 72.6 kV and higher. The revised
IEEE standard results in increases in minimum approach distances
compared to OSHA's 2005 proposal, with substantial increases at
voltages of 230 kV and higher.
    (3) Phase-to-ground exposures at 72.6 kV and higher. Smaller
increases in the revised IEEE standard compared to OSHA's 2005 proposal
are evident for phase-to-ground exposures at voltages of 72.6 kV and
higher. The increased minimum approach distances are due to the IEEE's
use of minimum tool insulation distance rather than minimum air
insulation distance as the electrical component in determining the
minimum approach distance for phase-to-ground exposures.

D. Issues on Which Comment Is Requested

    OSHA continues to support the text of its 2005 proposal and has not
yet come to any conclusions as to whether the minimum approach
distances in that proposal are based on faulty principles or
calculations. In light of IEEE's recently published revisions, OSHA is
reopening the record on the electric power generation, transmission,
and distribution standard to invite additional comments, evidence, and
data on the minimum approach distances proposed in 2005. In light of
the changes made in the new IEEE standard, OSHA is now seeking
additional public comment on the proposed minimum approach distances
for all voltages. OSHA is interested in public feedback on the proposed
minimum approach distances insofar as any party has specific comments
about perceived problems or concerns with the calculation methods
described in the 2005 proposal. The Agency strives to adopt a final
rule that is based on sound and up-to-date engineering and scientific
principles. Therefore, in developing the final rule based on these
principles, OSHA will review the comments received in response to this
notice, as well as evidence and other information gathered at the
public hearing and in any posthearing comment period, including
information provided in response to the following questions:
    1. Should OSHA adopt minimum approach distances that are different
from those proposed in subpart V Tables V-2 through V-6 and proposed
Sec.  1910.269 Tables R-6 through R-10 and, if so, what criteria and
methodology are reasonably necessary to protect employees from hazards
associated with sparkover?
    2. Is there any scientific basis for not extrapolating the
saturation factor, a, beyond the limits of the test data on which
earlier (that is, pre-2009) versions of IEEE Standard 516 relied? Is
there any test data that can be used to validate or invalidate the use
of extrapolated values for a?
    3. Does the new IEEE methodology for calculating minimum approach
distances for phase-to-phase exposures at voltages of 72.6 kV and
higher represent employee exposure conditions better than the
methodology OSHA used to generate the minimum approach

distances in the 2005 proposal? In particular, is the use of conductor-
to-conductor test data modified with the use of a 3.3-meter floating
electrode preferable to the use of rod-to-rod test data for
representing the range of employee exposure conditions?
    4. All of the minimum approach distances in the 2005 proposed rule
are based on the minimum air insulation distance. Should the minimum
approach distances for voltages of 72.6 kV and higher be based on the
minimum tool insulation distance, as is the case in the 2007 NESC?
Should the minimum approach distances for voltages of 72.5 kV and lower
also be based on the minimum tool insulation distance?
    5. IEEE Standard 516-2009 does not provide minimum tool insulation
distances for phase-to-phase exposures. Using an insulated boom on the
top or middle conductor in a vertical configuration and using a live-
line rope in a similar position involve the use of an insulator across
the air gap between two phases. Are there any other situations in which
an insulator or a live-line tool is used between two phase conductors
during live-line work? If, in the final rule, OSHA bases minimum
approach distances on minimum tool insulation distances, but adopts
IEEE's methodology to calculate phase-to-phase minimum approach
distances, how, if at all, should the final rule address situations in
which insulation is present across the air gap?
    6. Existing Sec.  1910.269 and OSHA's 2005 proposal set maximum
transient overvoltages of 3.0 per unit for voltages up to 362 kV, 2.4
per unit for voltages in the 552-kV range, and 2.0 per unit for
voltages in the 800-kV range. The committee and the electric utility
industry, as reflected in the NESC and earlier editions of IEEE
Standard 516, believed that these were the highest possible transient
overvoltages. However, IEEE Standard 516-2009 now recognizes that even
higher maximum per-unit transient overvoltages can exist. How, if at
all, should the final rule address the possibility of higher maximum
transient overvoltages given that the proposed rule did not address
this possibility?
    7. In drafting the final rule, should OSHA include the 362.1- to
420-kV voltage range appearing in IEEE Standard 516-2009 in addition to
the voltage ranges in the proposed rule? Do any existing systems
operate at these voltages?
    8. OSHA does not anticipate that revising the minimum approach
distances using one of the methods outlined in this notice will have a
substantial impact on compliance costs. However, the Agency realizes
that some companies might be affected by revised minimum approach
distances. Would revised minimum approach distances in accordance with
one or more of the methods described in this notice impose additional
compliance costs? If so, explain the reasons for these costs and the
frequency with which they will be incurred.
    OSHA is reopening the record solely on issues related to minimum
approach distances. The record is not being reopened on any other
issue.

E. Informal Public Hearing

    As previously noted, OSHA received a request to conduct a public
hearing from EEI in response to the October 2008 reopening notice (see
Document ID: OSHA-S215-2006-0063-0530). Based on this request, the
Agency is scheduling an informal public hearing to address the limited
issues related to the minimum approach distances described in this
notice. OSHA will make witnesses available at the hearing to provide
testimony and to take questions about the minimum approach distances
proposed in 2005. The Agency is relying on the public to provide
testimony and evidence on the strengths and weaknesses of the
principles, calculations, and minimum approach distances set forth in
IEEE Standard 516-2009. The public must use the following procedures to
participate in the hearing.
    Informal public hearings--purpose, rules, and procedures. Pursuant
to section 6(b)(3) of the Occupational Safety and Health Act of 1970
(OSH Act) (29 U.S.C. 655), OSHA invites interested persons to
participate in this rulemaking by attending the public hearing and
providing oral testimony and documentary evidence on the limited issues
related to minimum approach distances raised in this notice. OSHA also
welcomes any data or other evidence that will assist the Agency in
developing a complete and accurate record on these issues.
    The informal public hearing on minimum approach distances will be
held on October 28, 2009, from 9:30 a.m. to 1:30 p.m., ET, in Room
N3437A, B, and C at the U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210. An administrative law judge (ALJ)
will preside over the hearing and will be responsible for resolving any
procedural matters that arise.
    The legislative history of Section 6 of the OSH Act, as well as
OSHA's rules governing public hearings (29 CFR 1911.15), establish the
purpose and procedures of informal public hearings. Although the
presiding officer of such hearings is an ALJ and questioning witnesses
is allowed on crucial issues, the proceeding is largely informal and
essentially legislative in purpose. Therefore, the hearing provides
interested persons with an opportunity to make oral presentations in
the absence of procedural restraints or rigid procedures that could
impede or protract the rulemaking process. In addition, the primary
purpose of the hearing is to gather information and clarify the record;
the hearing will be an informal administrative proceeding rather than
an adjudicative one in which the technical rules of evidence apply.
OSHA's rules governing public hearings and the prehearing guidelines
that the ALJ issues for the hearings will ensure fairness and due
process for participants, as well as facilitate the development of a
clear, accurate, and complete record. Accordingly, application of these
rules and guidelines will be such that questions of relevance,
procedure, and participation generally will be resolved in favor of
development of the record.
    The conduct of the hearing will conform to OSHA's Rules of
Procedure for Promulgating, Modifying, or Revoking Occupational Safety
and Health Standards (29 CFR part 1911). The rules also specify that
the Assistant Secretary may, on reasonable notice, issue additional or
alternative procedures to expedite the proceedings, to provide greater
procedural protections to interested persons or to further any other
good cause consistent with applicable law (29 CFR 1911.4). Although the
ALJs who preside over the hearings make no decisions or recommendations
on the merits of OSHA proposed rules, they do have the responsibility
and authority necessary to ensure that the hearing progresses at a
reasonable pace and in an orderly manner and to ensure that interested
persons receive a full and fair hearing. Accordingly, ALJs have the
power to regulate the course of the proceedings; dispose of procedural
requests, objections, and comparable matters; confine presentations to
matters pertinent to the issues this reopening notice raises; use
appropriate means to regulate the conduct of persons present at the
hearing; question witnesses and permit others to do so; limit the time
for such questioning; and leave the record open for a reasonable time
after the hearing for the submission of additional data, evidence,
comments and arguments (29 CFR 1911.16).
    Notice of intention to appear at the hearing. Interested persons
who intend

to participate in and provide oral testimony or documentary evidence at
the hearing must file a written notice of intention to appear by
October 1, 2009. To testify or question witnesses at the hearing,
interested persons must submit (transmit, postmark, or deliver) a
notice by October 1, 2009, providing the following information:
     Name, address, and telephone number of each individual who
will give oral testimony;
     Name of the establishment or organization each individual
represents, if any;
     Occupational title and position of each individual
testifying;
     Approximate amount of time required for each individual's
testimony;
     A brief statement of the position each individual will
take with respect to the issues identified in this notice; and
     A brief summary of documentary evidence each individual
intends to present.
    OSHA emphasizes that the hearings are open to the public; however,
only individuals who file a notice of intention to appear may question
witnesses and participate fully at the hearing. If time permits, and at
the discretion of the ALJ, an individual who did not file a notice of
intention to appear may be allowed to testify at the hearing, but for
no more than 10 minutes.
    Hearing testimony and documentary evidence. Individuals who request
more than 10 minutes to present their oral testimony at the hearing or
who will submit documentary evidence at the hearing must submit
(transmit, postmark, or deliver) the full text of their testimony and
all documentary evidence no later than October 15, 2009.
    The Agency will review each submission and determine if the
information it contains warrants the amount of time the individual
requested for the presentation. If OSHA believes the requested time is
excessive, the Agency will allocate an appropriate amount of time for
the presentation and will notify the individual of that action, and the
reasons for that action, before the hearing. The Agency may limit to 10
minutes the presentation of any participant who fails to comply
substantially with these procedural requirements, and may request that
the participant return for questioning later. Before the hearing, OSHA
will notify all participants of the time the Agency is allowing for
their presentations and will provide them with prehearing guidelines
and a hearing schedule.
    Certification of the hearing record and Agency final determination.
Following the close of the hearing and any posthearing comment periods,
the ALJ will certify the record to the Assistant Secretary of Labor for
Occupational Safety and Health. The record will consist of all of the
written comments, oral testimony, and documentary evidence received
during the proceeding. The ALJ, however, will not make or recommend any
decisions as to the content of the final standard. Following
certification of the record, OSHA will review the record and issue the
final rule based on the record as a whole.

List of Subjects in 29 CFR Parts 1910 and 1926

    Electric power, Fire prevention, Hazardous substances, Occupational
safety and health, Safety.

Authority and Signature

    This document was prepared under the direction of Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210. It is issued pursuant to sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657),
Secretary's Order 5-2007 (72 FR 31160), and 29 CFR part 1911.

    Signed at Washington, DC, this 8th day of September 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-22002 Filed 9-11-09; 8:45 am]

BILLING CODE 4510-26-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

Issued by the Department of Transportation on March 24, 2004

   NOTICE OF ACTION TAKEN -- DOCKET OST-95-554

________________________________________________________________________
_________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Application of US Airways, Inc.  filed 3/8/2004 to:

XX Renewal of its exemption under 49 U.S.C. 40109 to provide the
following service:

Scheduled foreign air transportation of persons, property, and mail
between a point or points in the United States, on the one hand, and a
point or points in St. Maarten, Netherlands Antilles, and points beyond,
on the other.

Applicant rep:   Howard Kass<PHONE_NUMBER>    DOT Analyst:  Linda
Senese<PHONE_NUMBER>

D I S P O S I T I O N

XX  Granted

The above action was effective when taken: March 24, 2004, through March
24, 2006.

Action taken by:   Paul L. Gretch, Director

		    Office of International Aviation

XX  The authority granted is consistent with the aviation agreement
between the United States and the Netherlands Antilles.

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:  XX Holder’s
certificates of public convenience and necessity

	   XX  Standard exemption conditions (attached)

________________________________________________________________________
____________

On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found the applicant qualified to provide
the services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) grant of the exemption authority was consistent with the
public interest; and (3) grant of the authority would not constitute a
major regulatory action under the Energy Policy and Conservation Act of
1975.  To the extent not granted, we denied all requests in the
referenced Docket.  We may amend, modify, or revoke the authority
granted in this Notice at any time without hearing at our discretion.

(See Reverse Side)

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

http://dms.dot.gov//reports/reports_aviation.asp

								Attachment

U.S. Carrier Standard Exemption Conditions

In the conduct of operations authorized, the U.S. carrier applicant(s)
shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

(5)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR 203, concerning
waiver of Warsaw Convention liability limits and defenses;

(6)  Comply with the applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security.  To assure compliance with all applicable U.S.
Government requirements concerning security, the holder shall, before
commencing any new service (including charter flights) to or from a
foreign airport, contact its Principal Security Inspector (PSI) to
advise the PSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served; and

(7)  Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department of Transportation, with all applicable orders and regulations
of other U.S. agencies and courts, and with all applicable laws of the
United States.

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

										08/2003