[Federal Register: November 28, 2005 (Volume 70, Number 227)]
[Notices]
[Page 71354-71358]
[DOCID:fr28no05-104]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52780; File No. SR-NYSE-2004-64]

Self-Regulatory Organizations; New York Stock Exchange, Inc.;
Order Approving Proposed Rule Change and Amendments Nos. 1 and 2
Thereto and Notice of Filing and Order Granting Accelerated Approval to
Amendment No. 3 to the Proposed Rule Change Relating to Exchange Rule
342 (``Offices--Approval, Supervision and Control'')

November 16, 2005.

I. Introduction

    On November 2, 2004, the New York Stock Exchange, Inc. (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change amending NYSE Rule 342.30 (``Annual Reports'')
primarily to require each member organization (``Member Organization'')
and each member not associated with a member organization (``Member'')
to file with the Exchange annual reports and to file a yearly statement
confirming the adequacy of their compliance processes and procedures.
On July 11, 2005, the NYSE filed Amendment No. 1 to the proposed rule
change (``Amendment No. 1'').\3\ On August 12, 2005, the NYSE filed
Amendment No. 2 to the proposed rule change (``Amendment No. 2'').\4\
The proposed rule change was published for comment in the Federal
Register on August 22, 2005.\5\ The Commission received two comments on
the proposal, as amended.\6\ On October 31, 2005, the Exchange filed a
response to the comment letters,\7\ and on the same day the Exchange
filed Amendment No. 3 to the proposed rule change (``Amendment No.
3'').\8\ This order approves the proposed rule change, as amended by
Amendments Nos. 1 and 2, grants accelerated approval to Amendment No. 3
to the proposed rule change, and solicits comments from interested
persons on Amendment No. 3.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, which supplemented the original filing,
the Exchange added its proposed Interpretive Handbook
Interpretations 342.30(d)/01 and 342.30(e)/01 for purposes of
clarifying issues related to the designation of a Chief Compliance
Officer and the Annual Certification, respectively. The text of
interpretations 342.30(d)/01 and 342.30(e)/01 is available on the
NYSE's Web site (http://www.NYSE.com), at the NYSE's principal

office, and at the Commission's Public Reference Room.
    \4\ In Amendment No. 2, which supplemented the original filing,
the Exchange modified proposed interpretation 342.30(e)/01 in order
to clarify the obligations of Members and Member Organizations in
the preparation of annual certifications.
    \5\ See Exchange Act Release No. 52259 (Aug. 15, 2005), 70 FR
48997 (Aug. 22, 2005) (the ``Notice'').
    \6\ See letter from Scott C. Kursman, Senior Vice President &
Chief Counsel for Global Compliance, Lehman Brothers, Inc. (``Lehman
Letter''), dated September 14, 2005, and letter from John Polanin,
Jr., Chairman, SIA Self-Regulation and Supervisory Practices
Committee, dated Sept. 14, 2005 (``SIA Letter'').
    \7\ See letter from Mary Yeager, Assistant Secretary, NYSE, to
Catherine McGuire, Chief Counsel, Division of Market Regulation,
Commission, dated October 31, 2005.
    \8\ In Amendment No. 3, which supplemented the original filing,
the Exchange amended the proposed rule text to respond to certain of
the commenters' concerns.
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II. Description of the Proposed Rule Change

A. Description of the Proposal

1. Background
    NYSE Rule 342 requires supervision of the offices, departments and
business activities of Members and Member Organizations. NYSE Rule
342.30, which was adopted on May 27, 1988, requires Members and Member
Organizations to prepare an Annual Report addressing specified
compliance issues by April 1 of each year. Currently, Member
Organizations are required to submit this report only to their Chief
Executive Officer (``CEO'') or managing partner and Members are
required only to prepare, but are not required to submit, the report.
2. Provisions of the Proposed Rule Change
    The proposed rule change makes the following changes relating to
the Annual Reports:
     The Annual Reports must be filed with the Exchange by
April 1 of each year.
     The anti-money laundering compliance programs required by
Exchange Rule 445 \9\ have been added to the list of specific areas of
compliance that must be discussed in the Annual Reports.
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    \9\ NYSE Rule 445 requires Members and Member Organizations to
develop and implement written anti-money laundering programs
consistent with the Bank Secrecy Act (31 U.S.C. 5311, et seq. and 31
CFR 103.120 thereunder).
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     Member Organizations must designate a principal officer or
general partner as Chief Compliance Officer (``CCO'').\10\
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    \10\ The Commission recently approved a similar requirement in
NASD's Rule 3013. Securities Exchange Act Release No. 50347
(September 10, 2004), 69 FR 56107 (September 17, 2004) (SR-NASD-
2003-176).
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     Each Member, and the CEO (or equivalent officer) of each
Member Organization, must submit a certification attesting to the
adequacy of their organization's compliance policies and
procedures.\11\
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    \11\ The Commission recently approved a similar requirement in
NASD's new Rule 3013. See id.
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3. Regulatory Purpose of Proposed Rule Change's Provisions
    (a) Submission of Annual Reports to the Exchange.
    Filing the Annual Reports with the Exchange will provide timely
information about the compliance efforts of Members and Member
Organizations, thereby strengthening and making more efficient the
Exchange's regulatory oversight, and facilitating the required annual
certifications (see below).
    Because submission of the Annual Reports to the Exchange was
previously not required, the reports were typically provided to the
Exchange at the time of, or in connection with, examinations of Member
Organizations and Members.\12\ Consequently, the Exchange did not
always receive important information in a timely, efficient manner.
Providing the reports to Exchange staff at annual intervals will afford
the Exchange a timely picture of the Members' and Member Organizations'
compliance issues from the preceding year, a tool for planning
surveillance and examinations, and more comprehensive information for
evaluation of

compliance systems and programs and identification of potential
regulatory problems.
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    \12\ Some Member Organizations already submit the Annual Reports
to the Exchange and/or make them available to Exchange examiners.
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    (b) Addition of Anti-Money Laundering Discussion to Annual Report.
    The USA Patriot Act \13\ substantially expanded federal anti-money
laundering regulations, and led to the enhancement of Exchange anti-
money laundering requirements through the adoption of NYSE Rule 445 in
April 2002. The Exchange considers anti-money laundering compliance
programs to be important enough to warrant consideration and discussion
in the Annual Reports, and so the proposed rule change adds these
programs to the list of specific areas of compliance that must be
discussed in the Annual Reports.
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    \13\ Public Law 107-56, 115 Stat. 272 (2001).
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    The addition of anti-money laundering compliance programs to the
aforementioned list continues the Exchange's practice of incrementally
supplementing the list to reflect changes in the evolving regulatory
environment. A similar augmentation recently occurred through NYSE Rule
342.23, which added Members' and Member Organizations' internal
controls to the Annual Report's list of required compliance
discussions.\14\
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    \14\ See Securities Exchange Act Release No. 49882 (June 17,
2004), 69 FR 35108 (June 23, 2004) (SR-NYSE-2002-36).
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    (c) Designation of CCO.
    The Exchange strongly believes that Member Organizations'
compliance with federal laws and Exchange regulations should be of the
utmost priority. In furtherance of that belief, the Exchange previously
addressed the critically important role of the compliance function by
requiring the Series 14 (NYSE Compliance Official) examination and
registration, which are intended to ensure the qualifications of key
compliance professionals.\15\
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    \15\ The Series 14 Examination is a qualification examination
intended to ensure that the individuals designated as having day-to-
day compliance responsibilities for their respective firms, or who
supervise ten or more people engaged in compliance activities, have
the knowledge necessary to carry out their job responsibilities.
NYSE Rule 342.13(b) requires Members' and Member Organizations'
compliance supervisors to pass the Series 14 Examination. See
Securities Exchange Act Release No. 25763 (May 27, 1988), 53 FR
20925 (June 7, 1988).
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    In further recognition of the increasing importance of the
compliance function, the proposed rule change requires each Member
Organization to formally designate a principal executive officer or
general partner of the Member Organization as its CCO. This requirement
is consistent with NYSE Rule 311(b)(5), which mandates that ``principal
executive officers'' exercise responsibility over each of the
prescribed business areas of a Member Organization (e.g., compliance).
Currently, each principal executive officer and general partner is
generally required to pass an examination acceptable to the Exchange
that pertains to knowledge of his or her functional responsibility.\16\
Based on the type of business that individual conducts, and the
structure of his or her organization, acceptable examinations include
the Series 9/10 (General Securities Sales Supervisor), Series 14,
Series 24 (General Securities Principal), Series 27 (Financial and
Operations Principal), or Series 28 (Introducing Broker/Dealer
Financial and Operations Principal).\17\
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    \16\ See NYSE Interpretation Handbook, Rule 304A(a), (c)/01.
    \17\ In proposed interpretations 342.30(d)/01 and 342.30(e)/01,
the Exchange also proposes guidance regarding: The designation of
CCOs; the interaction between CCOs and other executives during
preparation of Annual Reports; the scope and subjects of the Annual
Reports; and the reporting and certification process. See supra note
3.
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    The CCO designation requirement does not apply to Members, because
such members, whose activities are limited to interaction with other
members on the Floor of the Exchange, generally lack the organizational
infrastructure or scope of business activities that would necessitate
designation of a CCO.\18\
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    \18\ This exemption is consistent with other provisions of NYSE
Rule 342. For example, under certain circumstances, some compliance
officials at Member Organizations are exempt from the Series 14
requirement. See NYSE Interpretation Handbook, Rule 342(a)(b)/02.
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    (d) CEO Certification.
    The proposed rule change's CEO certification requirement reflects
the Exchange's belief that Member Organizations' senior executives,
particularly CEOs, should focus the highest degree of attention and
resources on the compliance function. While subordinates with
supervisory responsibility for specific business lines remain
accountable for the discharge of compliance policies and written
supervisory procedures, the Exchange considers CEOs ultimately to be
accountable for the compliance and supervision of their Member
Organizations.\19\ In keeping with those principles, the CEO
certification requirement is intended to promote and expand dialogue
between Member Organization CEOs and their officers who are responsible
for compliance with federal laws and Exchange regulations.\20\
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    \19\ Attestations similar to the yearly CEO certification
requirement proposed herein are also required by Exchange Rule
351(f), which calls for annual confirmation of compliance with
Exchange Rule 472 (``Communications with the Public''). See
Securities Exchange Act Release No. 45908 (May 10, 2002), 67 FR
34968 (May 16, 2002) (SR-NYSE-2002-09).
    \20\ The proposed rule change's CEO certification requirement
corresponds in substance to NASD Rule 3013, which the Commission
favorably described as seeking ``to provide a mechanism to compel
substantial and purposeful interaction between senior management and
compliance personnel to enhance the quality of members' supervisory
and compliance systems.'' Securities Exchange Act Release No. 50347
(September 10, 2004), 69 FR 56107 (September 17, 2004) (SR-NASD-
2003-176).
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    The required annual certification consists of four elements:
    (i) Each Member or each Member Organization's CEO (or equivalent
officer) must certify that processes are in place to: Establish and
maintain policies and procedures designed to achieve compliance with
Exchange rules and applicable federal securities laws and regulations;
modify such policies and procedures as business, regulatory and
legislative changes dictate; and test the effectiveness of such
policies and procedures on a periodic basis. This requirement goes to
the essential nature of compliance, and assures an appropriately
heightened attention to its details.
    (ii) Each Member Organization's CEO (or equivalent officer) must
certify that he or she has conducted one or more meetings with the CCO
during the preceding 12 months, during which they discussed and
reviewed the matters described in the certification. Such meetings,
which must entail discussion and review of the Member Organization's
compliance efforts as of that date, should aid in the identification
and resolution of significant ongoing and future compliance problems.
    (iii) Each Member Organization's CEO (or equivalent officer) must
certify that his or her Member Organization's compliance processes are
evidenced in a written report that was reviewed by the Member
Organization's CEO, CCO, and such other officers as the Member
Organization deems necessary, and submitted to the Member
Organization's board of directors and audit committee, if any. The
report must be produced prior to the execution of the proposed
certification, must describe the manner in which the compliance
processes are administered, and must identity the officers and
supervisors who are responsible for its administration.\21\
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    \21\ See proposed interpretation 342.30(e)/01.
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    (iv) Each Member Organization's CEO (or equivalent officer) must
certify that he or she has consulted with the CCO, such other officers
of the Member Organization as the Member

Organization deems necessary, and, to the extent the Member
Organization's CEO (or equivalent officer), CCO and such other officers
deem appropriate in order to attest to the statements in the
certification, outside consultants, lawyers and accountants. This
requirement recognizes that the CCO's expertise in the matters
underlying the certification make his or her role in the process
critical, and make the CCO an indispensable party to the CEO's
certification.
    The sentence ``[I]f any of these areas do not apply to the member
or member organization, the report should so state,'' which currently
concludes Rule 342.30, has been repositioned in the amended rule text
to avoid the ambiguity that otherwise would have resulted from the
addition of Rules 342.30(d) and 342.30(e). In response to commenters'
concerns, the Exchange submitted Amendment No. 3, which clarified the
parameters of the CEO's certification requirements.

B. Comment Summary and NYSE's Response

1. Comments Received
    The proposal was published for comment in the Federal Register on
August 22, 2005.\22\
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    \22\ See note 5, supra.
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    We received two comments on the proposal.\23\ Both commenters
generally supported the NYSE's proposed rule change and commended the
NYSE for its promotion of compliance efforts. However, both commenters
were concerned with certain aspects of the NYSE's proposal. Commenters
also generally expressed concern with the differences between the
NYSE's compliance certification and reporting requirements and the
NASD's requirements in NASD Rule 3013.\24\ Both commenters were
concerned with the language in the proposed rule change suggesting that
the CEO would be required to certify to the ``adequacy'' of the firm's
compliance policies and procedures. The commenters were concerned that
the word ``adequacy'' created obligations inconsistent with the goals
behind the certification and conflicted with the NASD's requirements,
and both observed that the NASD had opted to remove similar
``adequacy'' language from Rule 3013. Both commenters were concerned
about the subjectivity of certification as to the ``adequacy'' of the
compliance processes and procedures, and both commenters requested that
the NYSE remove the adequacy standard from the proposed language.\25\
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    \23\ See note 6, supra.
    \24\ See Lehman Letter, SIA Letter.
    \25\ See Lehman Letter, SIA Letter.
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    Both commenters were also concerned that the proposal created
ambiguity about the role of compliance officers. Both commenters stated
that the NYSE's statements in the proposed rule change might make it
appear that the NYSE intended to treat compliance officers as
``business line'' supervisors. One commenter said that this was
contrary to the common understanding of the role of compliance
officers, \26\ while the other commenter requested that the Exchange
clarify that the CCO does not have business-line responsibility.\27\
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    \26\ See Lehman Letter.
    \27\ See SIA Letter.
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    One of the commenters also requested that the Exchange determine
why it would require that the certification be filed with the Exchange
when this would diverge from the NASD's requirements.\28\ The commenter
asked that regulators gain additional experience with the NASD's CCO
filing before improving on the requirement, and requested consistency
between the Exchange's and the NASD's requirements in the filing of the
reports.
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    \28\ See Lehman Letter.
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2. NYSE's Response to Comments
    The NYSE responded to the commenters' concerns by filing an
amendment to the proposed rule text to remove the language ``the
adequacy of.'' The Exchange noted in its response, however, that in
order to emphasize the necessity of the CEO's belief that the processes
attested to in the certification could reasonably achieve the goals of
the rule, and that the CEO has an informed basis for the certification,
the Exchange added the words ``and review'' to proposed Rule
342(e)(i)(A).
    In response to commenters'' concerns that the proposed rule change
might create business line responsibility for compliance officers, the
Exchange responded that it sought to recognize the importance of the
compliance function. The Exchange stated that the rule as written and
intended would not vest the CCO with business-line responsibility. The
Exchange noted that the language in the proposed rule change regarding
``business areas'' differs from that in Rule 311(b)(5), which sets
forth the areas of responsibility of a CEO, and uses the phrase ``areas
of the business.'' The Exchange stated that it had no intention of
addressing the relationship of a CCO to such covered ``areas of the
business.'' The Exchange also stated that the proposed rule change does
not affect the determination of whether a compliance manager is a
business-line manager, which the Exchange instead described as a fact-
specific determination. The Exchange stated that the proposed rule
change and filing should not be read as an alteration to the existing
standards of determining whether a compliance manager is a business-
line supervisor.
    With respect to the filing requirement, the Exchange observed not
only that the proposed rule change required members and member
organizations to file the report previously required to be prepared
during the preceding year, but also that the Exchange understood that
NASD would be instituting a similar requirement, thereby creating
consistency in requirements between the NYSE and the NASD.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning Amendment No. 3, including whether Amendment No. 3
is consistent with the Act. Comments may be submitted by any of the
following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send e-mail to<EMAIL_ADDRESS>Please include File

Number SR-NYSE-2004-64 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-9303.

All submissions should refer to File Number SR-NYSE-2004-64. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro/shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference

Room. Copies of such filing also will be available for inspection and
copying at the principal office of the NYSE. All comments received will
be posted without change; the Commission does not edit personal
identifying information from submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSE-2004-64 and should be submitted on
or before December 19, 2005.

IV. Discussion and Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with section 6(b) \29\ of the Act in general and
section 6(b)(5) of the Act \30\ in particular, which require that the
rules of the Exchange be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade and, in general, to protect investors and the
public interest.\31\ The proposed rule change facilitates the
Exchange's review of Members' and Member Organizations' regulatory
programs, strengthens Members' and Member Organizations' oversight of
their compliance processes and procedures, and promotes increased
involvement of Members and Member Organization CEOs in compliance
matters. The Commission believes that the proposed rule change
accomplishes these goals by emphasizing the importance of compliance
procedures and processes and ensuring that CEOs will give these
processes and procedures high priority. The proposal's requirements for
designation of CCOs, annual CEO certifications, mandatory meetings of
the CCOs and CEOS, annual compliance reports, and provision of the
compliance reports to the Exchange should increase members' senior
management's focus on the effectiveness of member compliance efforts
with applicable NYSE rules and Federal securities laws. The proposed
rule change will involve CEOs in the compliance processes by requiring
the CEOs to be engaged with the creation of a report and a
certification documenting compliance procedures and processes, further
enhancing focus on Members' and Member Organizations' compliance and
supervision systems, and thereby decreasing the likelihood of fraud and
manipulative acts and increasing investor protection. The requirement
for annual CEO certifications and preparation of a related report will
help motivate firms to keep their compliance programs current with
business and regulatory developments.
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    \29\ 15 U.S.C. 78f(b)
    \30\ 15 U.S.C. 78f(b)(5)
    \31\ In approving this proposed rule change, the Commission
notes that it has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    The proposed requirement of a certification that the Member or
Member Organization has in place processes to establish, maintain,
review, modify and test policies and procedures reasonably designed to
achieve compliance with applicable NYSE rules and federal securities
laws and regulations will help to ensure that members have in place a
compliance framework that will allow the member to adapt its compliance
efforts to the ever-changing business and regulatory environment.
Especially helpful in this regard is the requirement that the processes
in a Member Organization, at a minimum, must include one or more
meetings annually between the CEO and CCO to (1) discuss and review the
matters that are the subject of the certification; (2) discuss and
review the Member Organization's compliance efforts as of the date of
such meetings; and (3) identify and address significant compliance
problems and plans for emerging business areas.
    The Commission also believes that the proposed rule change will
create procedures at the NYSE that are similar to those at the NASD,
assisting Members and Member Organizations in their compliance efforts
by creating a parallel framework for certifications to and reports on
compliance processes and procedures at the NASD and NYSE.
    The Commission believes that the commenters' concerns are addressed
by the NYSE's responsive amendment as well as the NYSE's letter
responding to the comments. The NYSE amended the rule text in Amendment
No. 3 to address commenters' concerns that the proposed rule change
would require Members and Member Organizations to certify as to the
adequacy of their procedures. In its response to comments, the Exchange
clarified that determining whether compliance officers are ``business-
line'' is a fact-specific determination, and that the proposed rule
change was not intended to affect that determination. Lastly, the
NYSE's filing requirement requires only that the Member or Member
Organization file with the Exchange a report that they are already
required to prepare, which will provide the Exchange with useful
information in its examinations of Members and Member Organizations.
Further, submission of the certification to the Exchange assures timely
completion of the Certification and will provide notice of any issues
with the completion of the Certification. Further, the NASD has
recently amended its Rules 3012 and 3013 to require that its members'
reports be provided to its members' boards on a similar time frame to
that of the NASD.\32\ The commenter's concern with inconsistent timing
of requirements between the NYSE and NASD should therefore be addressed
by the NASD's proposed rule change.
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    \32\ See Exchange Act Release No. 52727 (Nov. 3, 2005), 70 FR
68122 (Nov. 9, 2005).
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Accelerated Approval of Amendment No. 3

    The Commission finds good cause for approving Amendment No. 3 to
the proposed rule change prior to the thirtieth day after the amendment
is published for comment in the Federal Register pursuant to section
19(b)(2) of the Act.\33\ Amendment No. 3 responded to comment letters
by amending proposed NYSE Rule 342 to eliminate the words ``the
adequacy of'' and to further clarify the rule by requiring that the
Member or Member Organization review its procedures and processes. The
amendment therefore clarified that although a CEO has no obligation to
attest to the adequacy of the compliance processes and procedures, the
CEO must nonetheless have an informed basis for the certification. The
Commission finds that, given the objections raised with respect to the
language ``the adequacy of'' by commenters, and the Exchange's concern
that despite deletion of the ``adequacy'' concept, the CEO nonetheless
have an informed basis for the certification, it is appropriate and
responsive for the Exchange to amend the proposed rule text to reflect
these concerns. Furthermore, the Commission believes that deletion of
the ``adequacy'' language from the rule text and addition of a review
requirement will allow the requirements set forth in the rule to more
closely conform to those already instituted by the NASD in its Rule
3013, creating consistency between the two rules. Accordingly, the
Commission believes that accelerated approval of Amendment No. 3 is
appropriate.
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    \33\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the Act
\34\ that the proposed rule change (SR-NYSE-2004-64) be, and hereby is,
approved.
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    \34\ 15 U.S.C. 78s(b)(2).

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    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\35\
Jonathan G. Katz,
Secretary.
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    \35\ 17 CFR 200.30-3(a)(12).
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 [FR Doc. E5-6557 Filed 11-25-05; 8:45 am]

BILLING CODE 8010-01-P


40932 Federal Register / Vol. 68, No. 131 / Wednesday, July 9, 2003 / Notices remain largely unanswered. I also fear that as the precise definition of manipulation develops over time, we will end up with overly proscriptive `` rules of the road'' that will dampen innovative, legitimate business tools. Finally, I am concerned about the applicability of behavioral rules to only one market segment   sellers. This troubles me   equitable rules should apply to all industry segments. I encourage and look forward to meaningful comments from all market segments. If we've learned nothing else, we've learned that rules are critical. Nora Mead Brownell, Commissioner.

[ FR Doc. 03   17421 Filed 7   8   03; 8: 45 am]

BILLING CODE 6717   01   P ENVIRONMENTAL PROTECTION AGENCY [ FRL   7525   6]

Notice of Scientific and Technological Achievement Awards Subcommittee; Closed Meeting AGENCY: Environmental Protection Agency ( EPA). ACTION: Notice.

SUMMARY: The Environmental Protection Agency ( EPA), Science Advisory Board ( SAB) announces a closed meeting of the Scientific and Technological Achievement Awards Subcommittee to recommend to the Assistant Administrator of the Office of Research and Development ( ORD) the recipients of the Agency's 2003 Scientific and Technological Achievement Cash Awards.

DATES: This closed meeting will take place on August 5   7, 2003. ADDRESSES: This closed meeting will take place at the U. S. Environmental Protection Agency ( EPA), Washington, DC, 1200 Pennsylvania Ave, NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Any member of the public wishing further information regarding this announcement may contact Ms. Kathleen White, Designated Federal Officer, U. S. EPA Science Advisory Board ( 1400A), U. S. Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460, telephone: ( 202) 564   4559 or e mail at: white. kathleen@ epa. gov. General information about the SAB can be found in the SAB Web site at http:// www. epa. gov/ sab SUPPLEMENTARY INFORMATION: Summary: Pursuant to section 10( d) of the Federal Advisory Committee Act ( FACA), 5 U. S. C. App. 2, and section ( c)( 6) of the Government in the Sunshine Act, 5 U. S. C. 552b( c)( 6) EPA has determined that the meeting will be closed to the public. The purpose of the meeting is to recommend to the Assistant Administrator of the Office of Research and Development ( ORD) the recipients of the Agency's 2003 Scientific and Technological Achievement Cash Awards. These awards are established to honor and recognize EPA employees who have made outstanding contributions in the advancement of science and technology through their research and development activities, as exhibited in publication of their results in peer reviewed journals. In making these recommendations, including the actual cash amount of each award, the Agency requires full and frank advice from the EPA Science Advisory Board. This advice will involve professional judgments on the relative merits of various employees and their respective work. Such personnel issues, where disclosure of information of a personal nature would constitute an unwarranted invasion of personal privacy, are protected from disclosure by section ( c)( 6) of the Government in the Sunshine Act, 5 U. S. C. 552b( c)( 6). In accordance with the provisions of the Federal Advisory Committee Act, minutes of the meeting will be kept for Agency and Congressional review.

Dated: June 20, 2003. Christine Todd Whitman, Administrator. [ FR Doc. 03   17341 Filed 7   8   03; 8: 45 am]

BILLING CODE 6560   52   P ENVIRONMENTAL PROTECTION AGENCY [ OPP   2003   0215; FRL   7313   3]

Pesticide Products; Registration Applications AGENCY: Environmental Protection Agency ( EPA). ACTION: Notice.

SUMMARY: This notice announces receipt of applications to register pesticide products containing a new active ingredient not included in any previously registered product pursuant to the provisions of section 3( c)( 4) of the Federal Insecticide, Fungicide, and Rodenticide Act ( FIFRA), as amended. DATES: Written comments, identified by the docket ID number OPP   2003   0215, must be received on or before August 8, 2003. ADDRESSES: Comments may be submitted electronically, by mail, or through hand delivery/ courier. Follow the detailed instructions as provided in Unit I. of the SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Rita Kumar, Registration Division ( 7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460   0001; telephone number: ( 703) 308   8291; e mail address: kumar. rita@ epa. gov SUPPLEMENTARY INFORMATION:

I. General Information A. Does this Action Apply to Me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:   Crop production ( NAICS 111)   Animal production ( NAICS 112)   Food manufacturing ( NAICS 311)   Pesticide manufacturing ( NAICS 32532) This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System ( NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under docket identification ( ID) number OPP   2003   0215. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information ( CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch ( PIRIB), Rm. 119, Crystal Mall # 2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8: 30 a. m. to 4 p. m., Monday through Friday, excluding legal holidays. The docket telephone number is ( 703) 305   5805.

VerDate Jan< 31> 2003 16: 27 Jul 08, 2003 Jkt 200001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\ FR\ FM\ 09JYN1. SGM 09JYN1 40933 Federal Register / Vol. 68, No. 131 / Wednesday, July 9, 2003 / Notices 2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the `` Federal Register'' listings at http:// www. epa. gov/ fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http:// www. epa. gov/ edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select `` search,'' then key in the appropriate docket ID number. Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I. B. 1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket. Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

C. How and to Whom Do I Submit Comments? You may submit comments electronically, by mail, or through hand delivery/ courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked `` late.'' EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I. D. Do not use EPA Dockets or e mail to submit CBI or information protected by statute. 1. Electronically. If you submit an electronic comment as prescribed in this unit, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http:// www. epa. gov/ edocket, and follow the online instructions for submitting comments. Once in the system, select `` search,'' and then key in docket ID number OPP   2003   0215. The system is an `` anonymous access'' system, which means EPA will not know your identity, e mail address, or other contact information unless you provide it in the body of your comment. ii. E mail. Comments may be sent by e mail to opp docket@ epa. gov, Attention: Docket ID Number OPP   2003   0215. In contrast to EPA's electronic public docket, EPA's e mail system is not an `` anonymous access'' system. If you send an e mail comment directly to the docket without going through EPA's electronic public docket, EPA's e mail system automatically captures your e mail address. E mail addresses that are automatically captured by EPA's e mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I. C. 2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption. 2. By mail. Send your comments to: Public Information and Records Integrity Branch ( PIRIB) ( 7502C), Office of Pesticide Programs ( OPP), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460   0001, Attention: Docket ID Number OPP   2003   0215. 3. By hand delivery or courier. Deliver your comments to: Public Information and Records Integrity Branch ( PIRIB), Office of Pesticide Programs ( OPP), Environmental Protection Agency, Rm. 119, Crystal Mall # 2, 1921 Jefferson Davis Hwy., Arlington, VA, Attention: Docket ID Number OPP   2003   0215. Such deliveries are only accepted during the docket's normal hours of operation as identified in Unit I. B. 1.

D. How Should I Submit CBI to the Agency? Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI ( if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the VerDate Jan< 31> 2003 16: 27 Jul 08, 2003 Jkt 200001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\ FR\ FM\ 09JYN1. SGM 09JYN1 40934 Federal Register / Vol. 68, No. 131 / Wednesday, July 9, 2003 / Notices information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under FOR FURTHER INFORMATION CONTACT.

E. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments: 1. Explain your views as clearly as possible. 2. Describe any assumptions that you used. 3. Provide copies of any technical information and/ or data you used that support your views. 4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide. 5. Provide specific examples to illustrate your concerns. 6. Offer alternative ways to improve the registration activity. 7. Make sure to submit your comments by the deadline in this notice. 8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

II. Registration Applications EPA received applications as follows to register pesticide products containing a new active ingredient not included in any previously registered products pursuant to the provision of section 3( c)( 4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.

Products Containing an Active Ingredient Not Included in Any Previously Registered Products 1. File Symbol: 3125   LIO. Applicant: Bayer Corporation 8400 Hawthorne Rd., P. O. Box 4913, Kansas City, MO 64120. Product name: Spirodiclofen Technical. Type of product: Insecticide. Active ingredient: Spirodiclofen at 97.8%. Proposed classification/ Use: None. For manufacturing use only. 2. File Symbol: 3125   LOR. Applicant: Bayer Corp. Product name: Envidor 2SC. Type of product: Insecticide. Active ingredient: Spirodiclofen at 22.3%. Proposed classification/ Use: None. For the control of mites on citrus, pome fruit, stone fruit, and tree nuts.

List of Subjects Environmental protection, Pesticides and pest.

Dated: June 25, 2003. Debra Edwards, Director, Registration Division, Office of Pesticide Programs. [ FR Doc. 03   16929 Filed 7   8   03; 8: 45 am]

BILLING CODE 6560   50   S ENVIRONMENTAL PROTECTION AGENCY [ OPP   2003   0190; FRL   7313   4]

Notice of Receipt of Requests to Voluntarily Cancel Technical and Formulation Intermediate Pesticide Registrations of 2,4 Dichlorprop and Mecoprop AGENCY: Environmental Protection Agency ( EPA). ACTION: Notice.

SUMMARY: In accordance with section 6( f)( 1) of the Federal Insecticide, Fungicide, and Rodenticide Act ( FIFRA), as amended, EPA is issuing a notice of receipt of requests by Bayer Cropscience, BASF Corporation, and A. H. Marks and Company, Ltd., to voluntarily cancel all technical and formulation intermediate pesticide registrations of 2,4 DP, 2( 2,4 dichlorophenoxy) propionic acid, commonly known as dichlorprop, and MCPP, 2( 4 chloro 2 methylphenoxy) propionic acid, commonly known as mecoprop, including their associated salts and esters. DATES: All three registrants have elected to waive the 180   day comment period usually associated with a public notice of voluntary cancellation. Unless a request is withdrawn by the registrants by August 8, 2003, for EPA Registration Numbers: 264   706, 264   707, 264   708, 264   709, 264   710, 264   711, 264   712, 264   713, 264   714, 264   715, 7969   116, 7969   127, 15440   12, 15440   14, 15440   16, and 15440   17, orders will be issued canceling these registrations. The Agency will consider withdrawal requests postmarked no later than August 8, 2003. FOR FURTHER INFORMATION CONTACT: Mark Howard, Special Review and Reregistration Division ( 7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460   0001; telephone number: ( 703) 308   8172; e mail address: howard. markt@ epa. gov.

I. General Information A. Does this Action Apply to Me?

This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the information in this notice, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under docket identification ( ID) number OPP   2003   0190. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information ( CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch ( PIRIB), Rm. 119, Crystal Mall # 2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8: 30 a. m. to 4 p. m., Monday through Friday, excluding legal holidays. The docket telephone number is ( 703) 305   5805. 2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the `` Federal Register'' listings at http:// www. epa. gov/ fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http:// www. epa. gov/ edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I. B. 1. Once in the system, select `` search,'' then key in the appropriate docket ID number.

II. What Action is the Agency Taking?

This notice announces receipt by the Agency of applications from registrants VerDate Jan< 31> 2003 16: 27 Jul 08, 2003 Jkt 200001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\ FR\ FM\ 09JYN1. SGM 09JYN1


Tom Pugh < tom_ pugh@ yamahamotor com> Transmission Date: 03/ 16/ 2005 06: 57: 58 PM To: Emily Chen/ AA/ USEPA/ US@ EPA cc: Subject: UV Durability Testing of ATV Gas Tanks Hi Emily!

I'm not sure if you're the one to ask this question. If not, could you forward this to the right person?

Part of the gas tank durability procedure is the exposure to UV. I can't find the amount of time EPA requires for exposure, but I know CARB has a 15 hour a day for 5 weeks at 40w in their SORE regs.

My main question for you concerns the time allowed for UV exposure. Can you speed up the time of exposure by doing it 24 hours a day rather than only 15 hours a day?

Thanks,

Tom


[Federal Register: September 20, 2010 (Volume 75, Number 181)]
[Notices]
[Page 57310-57312]
[DOCID:fr20se10-88]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29416; File No. 812-13714]

American Capital, Ltd.; Notice of Application

September 14, 2010.
AGENCY: Securities and Exchange Commission (the ``Commission'').

ACTION: Notice of an application for an order under section 61(a)(3)(B)
of the Investment Company Act of 1940 (the ``Act'').

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SUMMARY: Summary of Application: Applicant, American Capital, Ltd.
requests an order approving a proposal to grant certain stock options
to

directors who are not also employees or officers of the applicant (the
``Non-employee Directors'') under its 2009 Stock Option Plan (the
``Plan'').

DATES: Filing Dates: The application was filed on November 5, 2009, and
amended on January 25, 2010, and September 7, 2010. Applicants have
agreed to file an amendment during the notice period, the substance of
which is reflected in this notice.
    Hearing or Notification of Hearing: An order granting the
application will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicant with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on October 7, 2010, and should be accompanied by proof of
service on applicant, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Commission, 100 F Street,
NE., Washington, DC 20549-1090; Applicant, 2 Bethesda Metro Center,
14th Floor, Bethesda, Maryland 20814.

FOR FURTHER INFORMATION CONTACT: Deepak T. Pai, Senior Counsel, at
(202) 551-6876, or Michael W. Mundt, Assistant Director, at (202) 551-
6821 (Division of Investment Management, Office of Investment Company
Regulation).

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

Applicant's Representations

    1. Applicant, a Delaware corporation, is a business development
company (``BDC'') within the meaning of section 2(a)(48) of the Act.\1\
Applicant's primary business objectives are to increase its net
operating income and net asset value by investing its assets in senior
debt, subordinated debt, with and without detachable warrants, and
equity of small to medium sized businesses with attractive current
yields and potential for equity appreciation. Applicant's investment
decisions are made either by its board of directors (the ``Board''),
based on recommendations of the executive officers of applicant, or,
for investments that meet certain objective criteria established by the
Board, by the executive officers of applicant, under authority
delegated by the Board. Applicant does not have an external investment
adviser within the meaning of section 2(a)(20) of the Act.
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    \1\ 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.
---------------------------------------------------------------------------

    2. Applicant requests an order under section 61(a)(3)(B) of the Act
approving its proposal to grant certain stock options under the Plan to
its Non-employee Directors.\2\ Applicant has a nine member Board with
one current vacancy. Seven of the eight current members of the Board
are not ``interested persons'' (as defined in section 2(a)(19) of the
Act) of the applicant (``Disinterested Directors''). All of the current
Non-employee Directors are Disinterested Directors. The Board approved
the Plan at a meeting of the Board held on April 6, 2009 and
applicant's stockholders approved the Plan at the annual meeting of
stockholders held on June 11, 2009.\3\
---------------------------------------------------------------------------

    \2\ The Non-employee Directors receive a $100,000 per year
retainer payment and $3,000 for each Board or committee meeting or
other designated Board-related meeting attended, and reimbursement
for related expenses. Non-employee Directors who chair a committee
of the Board receive an additional $10,000 retainer per year. Non-
employee Directors who serve as directors on the boards of portfolio
companies also receive an annual retainer from applicant set at
$30,000 per board, in lieu of any payment from the portfolio
company.
    \3\ At a Board meeting held on January 14, 2010, the Board
approved an amendment to the Plan. At such meeting, the Board
determined that the amendment did not require stockholder approval
under Section 10 of the Plan or applicable law or NASDAQ listing
requirements. The Company acknowledges that the Commission is not
taking a position as to whether the Company is required to seek
stockholder approval for the amendment.
---------------------------------------------------------------------------

    3. Applicant's officers, employees, and Non-employee Directors are
eligible to receive options under the Plan. Under the Plan, a maximum
of 750,000 shares of applicant's common stock, in the aggregate, may be
issued to Non-employee Directors and options to purchase 93,750 shares
of applicant's common stock may be issued to any one Non-employee
Director. On the date that the Commission issues an order on the
application (``Order Date''), each of the seven Non-employee Directors
serving on the Board as of June 11, 2009 will be granted options to
purchase 93,750 shares of applicant's common stock (the ``Initial
Grants''), provided that the Non-employee Director is a member of the
Board on the Order Date. The options issued under the Initial Grants
will vest in three equal parts on each of the first three anniversaries
of June 11, 2009. Any person who becomes a Non-employee Director after
June 11, 2009 will be entitled to receive options to purchase 93,750
shares of applicant's common stock (the ``Other Grants''), if and to
the extent that there are options available for grant to Non-employee
Directors under the Plan. Each Other Grant will be effective on the
later of the date such person becomes a Non-employee Director and the
Order Date. The options issued under the Other Grants will vest in
three equal parts on each of the first three anniversaries of the date
such person becomes a Non-employee Director.
    4. Under the terms of the Plan, the exercise price of an option
will not be less than 100% of the current market value, or if no such
market value exists, the current net asset value (``NAV'') per share of
applicant's common stock on the date of the issuance of the option
(``Fair Market Value'').\4\ The Initial Grants will expire on June 11,
2019, and the Other Grants will expire on the tenth anniversary of the
date the person becomes a Non-employee Director. Options granted under
the Plan may not be assigned or transferred other than by will or the
laws of descent and distribution. In the event of the death or
disability (as defined in the Plan) of a Non-employee Director during
such director's service, all such director's unexercised options will
immediately become exercisable and may be exercised for a period of
three years following the date of death (by such director's personal
representative) or one year following the date of disability, but in no
event after the respective expiration dates of such options. In the
event of the termination of a Non-employee Director for cause, any
unexercised options will terminate immediately. If a Non-employee
Director's service is terminated for any reason other than by death,
disability, or

for cause, the options may be exercised within one year immediately
following the date of termination, but in no event later than the
expiration date of such options.
---------------------------------------------------------------------------

    \4\ Under the Plan, ``Fair Market Value'' is defined as follows:
(a) if applicant's common stock is listed on any established
exchange or traded on the NASDAQ Global Select Market, the closing
sales price of the common stock as quoted on such exchange or market
(or if the common stock is traded on multiple exchanges or markets,
the exchange or market with the greatest volume of trading in the
common stock) on the date on which an option is granted under the
Plan, as reported in The Wall Street Journal or such other source as
the Board deems reliable; or (b) in the absence of closing sales
prices on such exchanges or markets for the common stock, the Fair
Market Value will be determined in good faith by the Board, but in
no event shall be less than the current NAV per share of common
stock.
---------------------------------------------------------------------------

    5. Applicant's officers and employees are eligible or have been
eligible to receive options under stock option plans that exclude Non-
employee Directors as participants (the ``Employee Plans''),
applicant's 2006 stock option plan (the ``2006 Option Plan''),
applicant's 2007 stock option plan (the ``2007 Option Plan''), and
applicant's 2008 stock option plan (the ``2008 Option Plan''). Non-
employee Directors have been eligible to receive options under
applicant's two Disinterested Director stock option plans (the
``Disinterested Director Plans''), the 2006 Option Plan, the 2007
Option Plan and the 2008 Option Plan (collectively, the 2008 Option
Plan, the 2007 Option Plan, the 2006 Option Plan, the Disinterested
Director Plans and the Employee Plans are the ``Other Plans''). As of
August 18, 2010, applicant had 350,309,123 shares of common stock
outstanding.\5\ The 750,000 shares of applicant's common stock that may
be issued to Non-employee Directors under the Plan represent 0.2% of
applicant's outstanding voting securities as of August 18, 2010. As of
August 18, 2010, the amount of voting securities that would result from
the exercise of all outstanding options issued to applicant's
directors, officers, and employees under the Other Plans and the Plan
would be 33,553,256 shares of applicant's common stock, or 9.5% of
applicant's outstanding voting securities. As of August 18, 2010,
applicant had no outstanding warrants, options, or rights to purchase
its voting securities other than the outstanding options issued to
applicant's directors, officers, and employees under the Other Plans
and the Plan.
---------------------------------------------------------------------------

    \5\ Applicant's common stock constitutes the only voting
security of applicant currently outstanding.
---------------------------------------------------------------------------

Applicant's Legal Analysis

    1. Section 63(3) of the Act permits a BDC to sell its common stock
at a price below current NAV upon the exercise of any option issued in
accordance with section 61(a)(3). Section 61(a)(3)(B) provides, in
pertinent part, that a BDC may issue to its non-employee directors
options to purchase its voting securities pursuant to an executive
compensation plan, provided that: (a) The options expire by their terms
within ten years; (b) the exercise price of the options is not less
than the current market value of the underlying voting securities at
the date of the issuance of the options, or if no market value exists,
the current NAV of the underlying voting securities; (c) the proposal
to issue the options is authorized by the BDC's shareholders, and is
approved by order of the Commission upon application; (d) the options
are not transferable except for disposition by gift, will or intestacy;
(e) no investment adviser of the BDC receives any compensation
described in section 205(a)(1) of the Investment Advisers Act of 1940,
except to the extent permitted by clause (b)(1) or (b)(2) of that
section; and (f) the BDC does not have a profit-sharing plan as
described in section 57(n) of the Act.
    2. In addition, section 61(a)(3) provides that the amount of the
BDC's voting securities that would result from the exercise of all
outstanding warrants, options, and rights at the time of issuance may
not exceed 25% of the BDC's outstanding voting securities, except that
if the amount of voting securities that would result from the exercise
of all outstanding warrants, options, and rights issued to the BDC's
directors, officers, and employees pursuant to any executive
compensation plan would exceed 15% of the BDC's outstanding voting
securities, then the total amount of voting securities that would
result from the exercise of all outstanding warrants, options, and
rights at the time of issuance will not exceed 20% of the outstanding
voting securities of the BDC.
    3. Applicant represents that its proposal to grant certain stock
options to Non-employee Directors under the Plan meets all the
requirements of section 61(a)(3)(B). Applicant states that the Board is
actively involved in the oversight of applicant's affairs and that it
relies extensively on the judgment and experience of its Board. In
addition to their duties as Board members generally, applicant states
that the Non-employee Directors provide guidance and advice on
operational issues, underwriting policies, credit policies, asset
valuation and strategic direction, as well as serving on committees.
Applicant believes that the availability of options under the Plan will
provide significant at-risk incentives to Non-employee Directors to
remain on the Board and devote their best efforts to ensure applicant's
success. Applicant states that the options will provide a means for the
Non-employee Directors to increase their ownership interests in
applicant, thereby ensuring close identification of their interests
with those of applicant and its stockholders. Applicant asserts that by
providing incentives such as options, applicant will be better able to
maintain continuity in the Board's membership and to attract and retain
the highly experienced, successful and dedicated business and
professional people who are critical to applicant's success as a BDC.
    4. As noted above, applicant states that the amount of voting
securities that would result from the exercise of all outstanding
options issued to applicant's directors, officers, and employees under
the Other Plans and the Plan would be 33,553,256 shares of applicant's
common stock, or 9.5% of applicant's outstanding voting securities, as
of August 18, 2010. However, applicant represents that the maximum
number of voting securities that would result from the exercise of all
outstanding options issued and all options issuable to applicant's
directors, officers, and employees under the Plan and the Other Plans
would be 70,981,813 shares of applicant's common stock, or 20.2% of
applicant's outstanding voting securities, as of August 18, 2010.
Applicant states that to the extent the number of shares of common
stock that would be issued upon the exercise of options issued under
the Other Plans and the Plan exceeds 15% of applicant's outstanding
voting securities, applicant will comply with the 20% limit in section
61(a)(3) of the Act.
    5. Applicant asserts that, given the relatively small amount of
common stock issuable to Non-employee Directors upon their exercise of
options under the Plan, the exercise of such options would not, absent
extraordinary circumstances, have a substantial dilutive effect on the
NAV of applicant's common stock.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-23408 Filed 9-17-10; 8:45 am]
BILLING CODE 8010-01-P


[Federal Register Volume 76, Number 218 (Thursday, November 10, 2011)]
[Notices]
[Pages 70152-70154]
[FR Doc No: 2011-29116]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-N-0788]

Pilot Program for Early Feasibility Study Investigational Device
Exemption Applications

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is soliciting
nominations from sponsors of innovative device technologies to
participate in a pilot program for early feasibility study
investigational device exemption (IDE) applications. The pilot program
will conform to the approaches outlined in the draft guidance entitled
``Investigational Device Exemptions (IDE) for Early Feasibility Medical
Device Clinical Studies, Including Certain First in Human (FIH)
Studies.'' Under the pilot program, FDA's review

of IDE applications for an early feasibility study, including a first
in human study, is expected to be based on less nonclinical data than
would be expected for a traditional feasibility or a pivotal study. The
pilot will also involve new approaches to IDE review to facilitate
timely device and clinical protocol modifications during an early
feasibility study.

DATES: FDA will begin accepting nominations for participation in the
voluntary pilot program on December 12, 2011.

FOR FURTHER INFORMATION CONTACT: Sheila Brown, Center for Devices and
Radiological Health, Food and Drug Administration, 10903 New Hampshire
Ave. Bldg. 66, rm. 1676, Sliver Spring, MD 20993-0002,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    Early feasibility studies allow for early clinical evaluation of
significant risk devices to provide proof of principle and initial
clinical safety data. During these studies, iterative device
modifications are likely to be made based on clinical experience. Early
feasibility studies may be appropriate early in the device development
process in a limited number of subjects when nonclinical testing
methods are not available or adequate to provide the information needed
to advance the development process, making clinical experience
necessary. As with all clinical studies, the initiation of an early
feasibility study must be justified by an appropriate risk-benefit
analysis and adequate human subject protection measures. Because these
studies are performed early in the device development process before
the device design is finalized and are only appropriate where
additional nonclinical testing is not available or adequate to provide
the information needed to advance device development, the information
included in the IDE application may vary from the information typically
included in IDE applications for traditional feasibility or pivotal
studies. To address the unique challenge of early feasibility studies,
elsewhere in this issue of the Federal Register, FDA is announcing the
availability of the early feasibility study draft guidance.
    The anticipated benefits of this pilot program include facilitating
development of innovative products in the United States and evaluating
the new approaches for modifications made during early feasibility
studies, which are outlined in the early feasibility study draft
guidance. The information learned and experiences gained from the pilot
program will help inform the final guidance document.

II. Early Feasibility Study IDE Pilot Program

    FDA has developed a pilot program that presents a streamlined
process to interested sponsors/requesters. This notice outlines: (1)
The guiding principles underlying the pilot program, (2) appropriate
candidates for the pilot program, and (3) the procedures FDA intends to
follow in the pilot program for early feasibility IDEs.

A. Guiding Principles

    The following basic principles underline the early feasibility
study IDE pilot program described in this notice. FDA intends that
these principles create a common understanding between the sponsor and
FDA about the goals and parameters of the early feasibility study IDE
application pilot program:
    1. FDA will not publicly disclose participation of a sponsor in the
early feasibility IDE pilot program, unless the sponsor consents or has
already made this information public, or disclosure is required by law.
    2. Participating in this pilot program does not guarantee approval
of an IDE application, nor is a sponsor precluded from withdrawing from
the pilot program and pursuing traditional IDE review.
    3. Due to FDA resource issues, FDA intends to limit the pilot
program to nine candidates.

B. Appropriate Candidates

    Appropriate candidates for the pilot program are medical devices
for which:
    1. The sponsor has not already submitted an IDE application.
    2. An application for premarket review or approval would require
the submission of clinical data.
    3. Limited clinical study of the device (e.g., generally fewer than
10 initial subjects) is necessary because additional nonclinical
testing is unlikely to provide the insights necessary to further the
development of the device, or appropriate nonclinical tests are
unavailable.
    FDA encourages any interested sponsors who believe their device
and/or study are appropriate candidates to contact FDA through the
Center for Devices and Radiological Health (CDRH), Investigational
Device Exemption Section at<PHONE_NUMBER>, before initiating the
procedures referenced in this document in section C. Procedures.

C. Procedures

    FDA has developed the following procedures to ensure adequate
information to assess a candidate's suitability for the pilot program
is provided to FDA without creating a burdensome new application
process:
1. Nomination
    The sponsor/requester of an innovative therapeutic or diagnostic
device may nominate their study for participation in the pilot program
by submitting a nomination to the CDRH Document Mail Center (Food and
Drug Administration, Center for Devices and Radiological Health,
Document Mail Center, Bldg. 66, rm. G609, 10903 New Hampshire Ave.,
Silver Spring, MD 20993-0002), with a duplicate copy sent to the
Investigational Device Exemption Section (see FOR FURTHER INFORMATION
CONTACT). FDA intends to acknowledge receipt of nominations via email.
The following information will assist FDA in processing and responding
to nominations:
     Name of the sponsor/requester and relevant contact
information,
     Name of the product,
     Succinct description of the technology and disease or
condition the device is intended to diagnose or treat, and
     A brief statement explaining why the device is an
appropriate candidate for the pilot program as described in this
document in section B. Appropriate Candidates.
2. FDA Consideration
    FDA intends to consider each nomination within 30 days of receiving
the complete information described in this document in section C.
Procedures. FDA may contact the sponsor/requester to request
supplemental information during the 30-day review period.
3. Sponsor/Requester Notification
    FDA intends to notify the sponsor/requester whether or not the
product is an appropriate candidate for the early feasibility study IDE
pilot program within 30 days from receiving the complete information
described in this document in section C. Procedures.
4. Acceptance Meeting
    If the nominee is deemed an appropriate candidate, FDA intends to
meet with the product sponsor/requester, either in person or by
telephone, within 30 days of notifying the sponsor/requester that its
nominee was accepted.

5. FDA Review
    Under the pilot program, early feasibility study IDE applications
will be reviewed according to the approaches outlined in the early
feasibility study draft guidance. The essential elements announced in
the early feasibility study draft guidance are:
     FDA may approve an IDE application for an early
feasibility study, including certain first in human studies, based on
less nonclinical data than would be expected for a traditional
feasibility or a pivotal study. This is because early feasibility
studies are only appropriate where additional nonclinical testing is
not available or adequate to provide the information needed to advance
the developmental process. Identification of the data necessary to
support an early feasibility study should be based on a thorough device
evaluation strategy that describes the device and procedure-related
attributes and addresses the potential failure modes. Appropriate human
subject protection measures and risk mitigation strategies must also be
identified. This policy is intended to facilitate initiation of
clinical studies in the United States earlier in the device development
process than has historically occurred, when appropriate.
     New approaches that facilitate timely device and clinical
protocol modifications during an early feasibility study while still
requiring compliance with the IDE regulations in 21 CFR part 812.
    FDA has provided additional information regarding its expectations
for early feasibility study IDE applications in the early feasibility
study draft guidance.

D. Duration of the Pilot

    FDA intends to accept requests for participation in the pilot
program for 180 days from the date of publication of this notice. FDA
may decide to terminate the pilot program before the close of the 180-
day period or extend the pilot program beyond the 180-day period. The
decision to terminate or extend the pilot will be announced in the
Federal Register. FDA may also decide to modify the pilot program while
it is in effect. Any modifications will also be announced in the
Federal Register. FDA intends to terminate the pilot program when the
early feasibility study draft guidance is finalized.

E. Evaluation

    FDA intends to use the experience gained from the pilot program to
inform the final version of the early feasibility study draft guidance.

    Dated: November 4, 2011.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2011-29116 Filed 11-9-11; 8:45 am]
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[Federal Register: February 8, 2008 (Volume 73, Number 27)]
[Proposed Rules]
[Page 7489-7492]
[DOCID:fr08fe08-17]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2008-0151; Directorate Identifier 2007-NM-347-AD]
RIN 2120-AA64

Airworthiness Directives; Boeing Model 727 Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for all
Boeing Model 727 airplanes. This proposed AD would require repetitive
inspections for any crack in the area of the elevator side fitting/
hinge fitting joint and for any crack or elongation inside and outside
of the holes in the clevis and in the lug, corrective actions if
necessary, and other specified actions. This proposed AD results from
reports of elongated holes and cracks found in the lugs of the
attachment fittings of the elevator quadrant upper support assembly at
the tip of the vertical fin. We are proposing this AD to detect and
correct damage to the aft attachment lugs of the elevator quadrant
support assembly that could lead to failure of the lugs. This condition
could accelerate wear elsewhere in the elevator control system, which
could reduce the crew's ability to maintain safe flight.

DATES: We must receive comments on this proposed AD by March 24, 2008.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov.
 Follow the instructions for submitting comments.

     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
    For service information identified in this AD, contact Boeing
Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov
; or in person at the Docket Management Facility

between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this proposed AD, the regulatory
evaluation, any comments received, and other information. The street
address for the Docket Office (telephone<PHONE_NUMBER>) is in the
ADDRESSES section. Comments will be available in the AD docket shortly
after receipt.

FOR FURTHER INFORMATION CONTACT: Berhane Alazar, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
917-6577; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2008-0151;
Directorate Identifier 2007-NM-347-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD because of those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov
, including any personal information you provide. We

will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    We have received reports of elongated holes or cracks found in the
lugs of the attachment fittings on three Boeing Model 727 airplanes.
The attachment fittings are located on the left and right sides of the
elevator quadrant upper support assembly at the tip of the vertical
fin. In one incident, the lug was cracked completely through. The
airplanes had accumulated between 28,385 and 72,448 total flight hours
and between 16,387 and 47,485 total flight cycles. Damage to the aft
attachment lugs of the elevator quadrant support assembly could lead to
failure of the lugs. This condition, if not corrected, could accelerate
wear elsewhere in the elevator control system, which could reduce the
crew's ability to maintain safe flight.

Relevant Service Information

    We have reviewed Boeing Special Attention Service Bulletin 727-55-
0092, dated June 4, 2007. Part 2 of the Accomplishment Instructions of
the service bulletin describes procedures for doing repetitive detailed
inspections for any crack in the area of the elevator side fitting/
hinge fitting joint, repetitive detailed inspections for elongation
inside and outside of the holes in the clevis and in the lug, and high
frequency eddy current (HFEC) inspections for any crack inside and
outside of the holes in the clevis and in the lug. The service bulletin
specifies doing these initial inspections within 18 months of the date
on the service bulletin. The service bulletin also specifies repeating
the inspections at intervals not to exceed 24 months, 4,000 flight
hours, or 3,000 flight cycles, whichever occurs first, until the repair
or modification specified in Part 3 of the Accomplishment Instructions
is done.
    The service bulletin also describes procedures for doing corrective
actions if necessary. The corrective actions, which the service
bulletin specifies doing before further flight, include the following
actions:
     Repairing the elevator side fittings and hinge fittings as
specified in Part 3 of the Accomplishment Instructions if any crack, or
any hole diameter elongation over 0.3203 inch, is found during the
inspections specified in Part 2 of the service bulletin. The repair
includes oversizing the holes, fabricating new bushings, installing and
in-line reaming the fabricated bushings through the entire stack-up,
and installing the elevator side fittings.
     Replacing the bushings with fabricated bushings if any
hole diameter elongation over 0.3203 inch is found during the
inspections specified in Part 4 of the Accomplishment Instructions of
the service bulletin.
     Contacting Boeing for repair instructions if any damage is
beyond the repair limits or any crack is found in the area of the
elevator side fitting/hinge fitting joint, during any inspection
specified in Part 2 or Part 4 of the Accomplishment Instructions of the
service bulletin.
    The service bulletin also describes procedures for doing other
specified actions, which include the following:
     Either installing the elevator side fittings and access
panels and restoring the cable tension, or modifying the elevator side
fittings and hinge fittings, if all of the holes are found acceptable
during the inspections specified in Part 2 of the Accomplishment
Instructions. The modification includes oversizing the holes,
fabricating and installing new bushings, in-line reaming the fabricated
bushings through the entire stack-up, and installing the elevator side
fittings. The service bulletin specifies that the modification must be
done in conjunction with the Part 2 detailed and HFEC inspections.
     After the repair or modification specified in Part 3 of
the Accomplishment Instructions has been done, doing repetitive
detailed inspections for any crack in the area of the elevator side
fitting/hinge fitting joint and repetitive detailed inspections for
elongation inside and outside of the holes in the clevis and in the lug
as specified in Part 4 of the Accomplishment Instructions. The service
bulletin specifies doing the

initial inspections within 24,000 flight hours or 16,000 flight cycles,
whichever occurs first, after accomplishing the repair or modification
specified in Part 3 of the service bulletin. The service bulletin also
specifies repeating the inspections at intervals not to exceed 24,000
flight hours or 16,000 flight cycles, whichever occurs first.

FAA's Determination and Requirements of This Proposed AD

    We are proposing this AD because we evaluated all relevant
information and determined the unsafe condition described previously is
likely to exist or develop in other products of the(se) same type
design(s). This proposed AD would require accomplishing the actions
specified in the service information described previously, except as
discussed under ``Difference between the Proposed AD and Service
Bulletin.''

Difference Between the Proposed AD and Service Bulletin

    The service bulletin specifies to contact the manufacturer for
instructions on how to repair certain conditions, but this proposed AD
would require repairing those conditions in one of the following ways:
     Using a method that we approve; or
     Using data that meet the certification basis of the
airplane, and that have been approved by an Authorized Representative
for the Boeing Commercial Airplanes Delegation Option Authorization
Organization whom we have authorized to make those findings.

Costs of Compliance

    We estimate that this proposed AD would affect 401 airplanes of
U.S. registry. We also estimate that it would take about 2 work-hours
per product to comply with this proposed AD. The average labor rate is
$80 per work-hour. Based on these figures, we estimate the cost of this
proposed AD to the U.S. operators to be $64,160 or $160 per product,
per inspection cycle.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866,
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979), and
    3. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    You can find our regulatory evaluation and the estimated costs of
compliance in the AD Docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

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

PART 39--AIRWORTHINESS DIRECTIVES

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

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

Sec.  39.13  [Amended]

    2. The FAA amends Sec.  39.13 by adding the following new AD:

Boeing: Docket No. FAA-2008-0151; Directorate Identifier 2007-NM-
347-AD.

Comments Due Date

    (a) We must receive comments by March 24, 2008.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to all Boeing Model 727, 727C, 727-100, 727-
100C, 727-200, and 727-200F series airplanes, certificated in any
category.

Unsafe Condition

    (d) This AD results from reports of elongated holes and cracks
found in the lugs of the attachment fittings of the elevator
quadrant upper support assembly at the tip of the vertical fin. We
are issuing this AD to detect and correct damage to the aft
attachment lugs of the elevator quadrant support assembly that could
lead to failure of the lugs. This condition could accelerate wear
elsewhere in the elevator control system, which could reduce the
crew's ability to maintain safe flight.

Compliance

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

Repetitive Inspections and Corrective/Other Specified Actions

    (f) At the applicable compliance times specified in paragraph
1.E. of Boeing Special Attention Service Bulletin 727-55-0092, dated
June 4, 2007, except as provided by paragraph (g) of this AD: Do the
detailed inspection for any crack in the area of the elevator side
fitting/hinge fitting joint, detailed inspections for elongation
inside and outside of the holes in the clevis and in the lug, and
high frequency eddy current (HFEC) inspections for any crack inside
and outside of the holes in the clevis and in the lug, and do all
the applicable corrective actions and other specified actions, by
accomplishing all of the applicable actions specified in the
Accomplishment Instructions of the service bulletin, except as
provided by paragraph (h) of this AD. Repeat the inspections
thereafter at the applicable intervals specified in paragraph 1.E.
of the service bulletin. Accomplishing the repair or modification
specified in Part 3 of the service bulletin only terminates the
repetitive inspections specified in Part 2 of the service bulletin.

Exception to Compliance Times

    (g) Where Boeing Special Attention Service Bulletin 727-55-0092,
dated June 4, 2007, specifies counting the compliance time from ``*
* * the date on this service bulletin,'' this AD requires counting
the compliance time from the effective date of this AD.

Exception to Corrective Actions

    (h) If any damage beyond the repair limits or any crack is found
in the area of the elevator side fitting/hinge fitting joint during
any inspection required by this AD, and Boeing Special Attention
Service Bulletin 727-55-0092, dated June 4, 2007, specifies to
contact Boeing for appropriate action: Before further flight, repair
the crack using a method approved in accordance with the procedures
specified in paragraph (i) of this AD.

Alternative Methods of Compliance (AMOCs)

    (i)(1) The Manager, Seattle Aircraft Certification Office, FAA,
ATTN: Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425) 917-6577; fax<PHONE_NUMBER>; has the authority to approve
AMOCs for this AD, if requested using the procedures found in 14 CFR
39.19.
    (2) To request a different method of compliance or a different
compliance time for this AD, follow the procedures in 14 CFR 39.19.
Before using any approved AMOC on any airplane to which the AMOC
applies, notify your appropriate principal inspector (PI) in the FAA
Flight Standards District Office (FSDO), or lacking a PI, your local
FSDO.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair required by this AD, if it is approved by an
Authorized Representative for the Boeing Commercial Airplanes
Delegation Option Authorization Organization who has been authorized
by the Manager, Seattle ACO, to make those findings. For a repair
method to be approved, the repair must meet the certification basis
of the airplane, and the approval must specifically refer to this
AD.

    Issued in Renton, Washington, on January 31, 2008.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
 [FR Doc. E8-2354 Filed 2-7-08; 8:45 am]

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