[Federal Register Volume 82, Number 37 (Monday, February 27, 2017)]
[Rules and Regulations]
[Pages 11791-11795]
[FR Doc No: 2017-03267]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2016-6896; Directorate Identifier 2016-NM-016-AD;
Amendment 39-18805; AD 2017-04-10]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: We are adopting a new airworthiness directive (AD) for all
Airbus Model A318-111, and -112 airplanes; Model A319-111, -112, -113,
-114, and -115 airplanes; Model A320-211, -212 and -214 airplanes; and
Model A321-111, -112, -211, -212, and -213 airplanes. This AD was
prompted by a report of a production quality deficiency on the inner
retainer installed on link assemblies of the aft engine mount, which
could result in failure of the retainer. This AD requires an inspection
for, and replacement of, all non-conforming aft engine mount retainers.
We are issuing this AD to address the unsafe condition on these
products.

DATES: This AD is effective April 3, 2017.
    The Director of the Federal Register approved the incorporation by
reference of certain publications listed in this AD as of April 3,
2017.

ADDRESSES: For Airbus service information identified in this final
rule, contact Airbus, Airworthiness Office--EIAS, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96;
fax: +33 5 61 93 44 51; email<EMAIL_ADDRESS>
Internet: http://www.airbus.com.
    For Goodrich service information identified in this final rule,
contact Goodrich Corporation, Aerostructures, 850 Lagoon Drive, Chula
Vista, CA 91910-2098; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>Internet: http://www.goodrich.com/TechPubs.
    You may view this referenced service information at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For
information on the availability of this material at the FAA, call 425-
227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-
6896.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-
6896; 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 AD, the regulatory evaluation, any comments received, and
other information. The street address for the Docket Office (telephone
800-647-5527) is Docket Management Facility, U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue SW., Renton, WA 98057-3356; telephone:<PHONE_NUMBER>;
fax:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would apply to all Airbus Model A318-111,
and -112 airplanes, Model A319-111, -112, -113, -114, and -115
airplanes, Model A320-211, -212 and -214 airplanes, and Model A321-111,
-112, -211, -212, and -213 airplanes. The NPRM published in the Federal
Register on May 31, 2016 (81 FR 34287) (``the NPRM''). The NPRM was
prompted by a report of a production quality deficiency on the inner
retainer installed on link assemblies of the aft engine mount, which
could result in failure of the retainer. The NPRM proposed to require
an inspection for, and replacement of, all non-conforming aft engine
mount retainers. We are issuing this AD to detect and correct non-
conforming retainers of the aft engine mount. This condition could
result in the loss of the locking feature of the nuts of the inner and
outer pins; loss of the pins will result in the aft mount engine link
no longer being secured to the aft engine mount, possibly resulting in
damage to the airplane.
    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Union, has issued EASA
Airworthiness Directive 2016-0010R1, dated February 16, 2016 (referred
to after this as the Mandatory Continuing Airworthiness Information, or
``the MCAI''), to correct an unsafe condition for all Airbus Model
A318-111, and -112 airplanes; Model A319-111, -112, -113, -114, and -
115 airplanes; Model A320-211, -212, and -214 airplanes; and Model
A321-111, -112, -211, -212, and -213 airplanes. The MCAI states:

    During in-service inspections, several aft engine mount inner
retainers, fitted on aeroplanes equipped with CFM56-5A/5B engines,
have been found broken. The results of the initial investigations
highlighted that two different types of surface finish had been
applied (respectively bright and dull material finishes), and that
dull finish affects the strength of the retainer with regard to
fatigue properties of the part. The pins which attach the engine
link to the aft mount are secured by two nuts, which do not have a
self-locking feature; this function is provided by the retainer
brackets. In case of failure of the retainer bracket, the locking
feature of the nuts of the inner and outer pins is lost; as a
result, these nuts could subsequently become loose.
    In case of full loss of the nuts, there is the potential to also
lose the pins, in which case the aft mount link will no longer be
secured to the aft engine mount. The same locking feature is used
for the three link assemblies of the aft mount.
    This condition, if not detected and corrected, could lead to in-
flight loss of an aft mount link, possibly resulting in damage to
the aeroplane and/or injury to persons on the ground.
    To address this potential unsafe condition, EASA issued AD 2013-
0050 [which corresponds to FAA AD 2014-14-06, Amendment 39-17901 (79
FR 42655, July 23, 2014)] to require a detailed inspection (DET) of
the aft engine mount inner retainers and the replacement of all
retainers with dull finish with retainers having a bright finish.
Since that [EASA] AD was issued, inspection results showed that the
main cause of crack initiation remains the vibration dynamic effect
that affects both retainers, either with ``dull'' or ``bright''
surface finishes. The non-conforming ``dull'' surface's pitting is
an aggravating factor. Consequently, EASA issued AD 2015-0021 [which
corresponds to FAA NPRM Docket No. FAA-2015-3632; Directorate
Identifier 2015-NM-023-AD (80 FR 55798, September 7, 2015)],
retaining the requirements of EASA AD 2013-0050, which was
superseded, and requiring repetitive DET of all aft engine mount
inner retainers and, depending on findings, their replacement.
    Since that [EASA] AD was issued, a production quality deficiency
was identified by Airbus and UTAS (formerly Goodrich Aerostructures,
the engine mount retainer manufacturer) on the delivery of the inner
retainer, Part Number (P/N) 238-0252-505, installed in the three
Link assemblies of the engine mount fitted on CFM56-5A/5B engines.
Airbus issued AOT A71N011-15 and SB A320-71-1070 providing a list of
affected parts and applicable corrective actions.
    Consequently, EASA issued AD 2016-0010, retaining the
requirements of EASA AD 2015-0021, which was superseded, and in
addition requiring the identification and replacement of all non-
conforming aft engine mount inner retainers.
    Since that [EASA] AD was issued, AOT A71N011-15 was revised,
removing errors and reducing the list of affected parts.
    For the reason described above, this [EASA] AD is revised,
adding reference to the revised AOT, and removing [EASA] AD
appendixes, which content is included in the referenced Airbus
documentation.
    This [EASA] AD is still considered to be an interim action,
pending development and availability of a final solution.

    This AD requires an inspection for, and replacement of, all non-
conforming aft engine mount retainers. You may examine the MCAI in the
AD docket on the Internet at http://www.regulations.gov by searching
for and locating Docket No. FAA-2016-6896.

Comments

    We gave the public the opportunity to participate in developing
this AD. The following presents the comments received on the NPRM and
the FAA's response to each comment.

Request To Remove Part Identification Requirement

    Delta Airlines (DAL) requested that we remove the requirement to do
an inspection to determine the part number of each engine mount inner
retainer specified in paragraph (g) of the proposed AD. DAL stated that
Airbus Service Bulletin A320-71-1070, dated November 23, 2015, does not
specify identifying the part number. DAL stated that identifying the
part number has no value in determining the affected population of non-
conforming retainers. DAL also requested that we revise the records
review language in paragraph (g) of the proposed AD to reference the
criteria in paragraphs (g)(1), and (g)(2), and (g)(3) of the proposed
AD instead of referring to the part number.
    We do not agree with DAL's request to remove the inspection
required by paragraph (g) of this AD. However, we do agree that the
inspection language should be clarified. Paragraph (g) of this AD,
which corresponds with the MCAI, requires doing actions in accordance
with Airbus Service Bulletin A320-71-1070, dated November 23, 2015,
which specifies to determine if there is a non-compliant engine mount
inner retainer. We have revised paragraph (g) of this AD accordingly.

Request To Clarify Engine Mount Retainer

    DAL requested that we clarify in paragraph (g) of the proposed AD
which engine mount retainer (forward or aft) is to be inspected.
    We agree to clarify. We have revised paragraph (g) of this AD to
specify the aft engine mount inner retainer.

Requests To Use the Airplane Maintenance Manual (AMM)

    DAL requested that we include an option for using the AMM to
accomplish the required actions. DAL stated that paragraph (g) of the
proposed AD specifies that the replacement must be done in accordance
with the service information specified in paragraph (h)(1), (h)(2), or
(h)(3) of the proposed AD. DAL recommended that operators be allowed to
take credit for the replacement through other means such as the AMM.
    We do not agree with DAL's request. An AMM is a customized document
that varies for each operator and depends on the airplane
configuration. In addition, the AMM might not include all required
compliance steps to mitigate the risk addressed in this AD. We have not
changed this AD in this regard. However, under the provisions of
paragraph (l) of this AD, we will consider requests for approval of
alternative methods of compliance if sufficient data are submitted to
substantiate that the new methods would provide an acceptable level of
safety.

Requests To Revise Part Installation Prohibition

    DAL requested that we revise paragraph (j) of the proposed AD to
prohibit installation of an engine mount inner retainer in lieu of
``any part.'' DAL asserted that if not changed, paragraph (j)(l) of the
proposed AD will prohibit the installation of all aft mounts identified
in table 1 of Airbus Alert Operators Transmission (AOT) A71N011-15,
Revision 01, dated February 1, 2016.
    We agree with DAL's request. We have revised paragraph (j) of this
AD to prohibit installation of certain engine mount inner retainers.
    DAL requested that we revise paragraph (j)(3) of the proposed AD,
which prohibits installation of parts delivered through an unidentified
Purchase Order (PO) to provide more specific information for the
identification of non-conforming aft engine mount inner retainers. DAL
suggested that the proposed AD specify using the original equipment
manufacturer (OEM) new part release certificate as a mean of verifying
conformity for each aft engine mount inner retainer. DAL explained that
it is suggesting this action because non-conforming field parts could
be sold on the surplus market prior to the release of the AD under a
non-OEM purchase order number.
    We do not agree with DAL's request to revise paragraph (j)(3) of
the proposed AD. We have determined that paragraph (j)(3) of this AD
clearly prohibits installation of parts delivered through an
unidentified PO and corresponds with the MCAI. We are unaware of any
non-conforming parts delivered through an unidentified PO that have
been sold on the surplus market. However, if those parts exist, then
they are prohibited from installation as of the effective date of this
AD. We have not changed this AD in this regard.

Conclusion

    We reviewed the relevant data, considered the comments received,
and determined that air safety and the public interest require adopting
this AD with the changes described previously and minor editorial
changes. We have determined that these minor changes:
     Are consistent with the intent that was proposed in the
NPRM for correcting the unsafe condition; and
     Do not add any additional burden upon the public than was
already proposed in the NPRM.
    We also determined that these changes will not increase the
economic burden on any operator or increase the scope of this AD.

Related Service Information Under 1 CFR Part 51

    We reviewed the following service information. This service
information describes procedures for replacement of all non-conforming
aft engine mount retainers.
     Airbus Service Bulletin A320-71-1070, dated November 23,
2015. This document also describes procedures for an inspection for
non-conforming aft engine mount retainers.
     Airbus Alert Operators Transmission (AOT) A71N011-15,
Revision 01, dated February 1, 2016. This document also contains the
affected purchase order numbers used in identifying the affected parts.
     Goodrich Service Bulletin RA32071-165, dated October 9,
2015. This document also contains the affected part numbers.
    This service information is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

Costs of Compliance

    We estimate that this AD affects 959 airplanes of U.S. registry.
    We estimate the following costs to comply with this AD:

                                                 Estimated Costs
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            Action                   Labor cost         Parts cost    Cost per product   Cost on U.S. operators
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Inspection...................  Up to 4 work-hours x               $0  Up to $340......  Up to $326,060.
                                $85 per hour = $340.
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    We estimate the following costs to do any necessary replacements
that would be required based on the results of the inspection. We have
no way of determining the number of aircraft that might need these
replacements:

                                               On-Condition Costs
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               Action                         Labor cost            Parts cost           Cost per product
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Replacement........................  Up to 36 work-hours x $85           $10,000  Up to $13,060.
                                      per hour = $3,060.
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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 AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify that this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

PART 39--AIRWORTHINESS DIRECTIVES

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

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

Sec.  39.13   [Amended]

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

2017-04-10 Airbus: Amendment 39-18805. Docket No. FAA-2016-6896;
Directorate Identifier 2016-NM-016-AD.

(a) Effective Date

    This AD is effective April 3, 2017.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs
(c)(1) through (c)(4) of this AD, certificated in any category, all
manufacturer serial numbers.
    (1) Airbus Model A318-111 and -112 airplanes.
    (2) Airbus Model A319-111, -112, -113, -114, and -115 airplanes.
    (3) Airbus Model A320-211, -212, and -214 airplanes.
    (4) Airbus Model A321-111, -112, -211, -212, and -213 airplanes.

(d) Subject

    Air Transport Association (ATA) of America Code 71, Powerplant.

(e) Reason

    This AD was prompted by a report of a production quality
deficiency on the inner retainer installed on link assemblies of the
aft engine mount, which could result in failure of the retainer. We
are issuing this AD to detect and correct non-conforming retainers
of the aft engine mount. This condition could result in loss of the
locking feature of the nuts of the inner and outer pins; loss of the
pins will result in the aft mount engine link no longer being
secured to the aft engine mount, possibly resulting in damage to the
airplane.

(f) Compliance

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

(g) Inspection and Replacement

    Within 2 months after the effective date of this AD, do an
inspection to determine if any non-compliant aft engine mount inner
retainer is installed; and within 2 months after the effective date
of this AD, replace each part that meets any of the criteria
specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD. Do the
inspection in accordance with the service information specified in
paragraph (h)(1) of this AD. Do the replacement in accordance with
the service information specified in paragraph (h)(1), (h)(2), or
(h)(3) of this AD. A review of airplane maintenance records is
acceptable in lieu of the inspection required by this paragraph, if
it can be conclusively determined that there are no non-compliant
aft engine mount inner retainers installed on the airplane.
    (1) An aft engine mount inner retainer from an aft engine mount
having a serial number listed in table 1 of Airbus Alert Operators
Transmission (AOT) A71N011-15, Rev 01, dated February 1, 2016.
    (2) An aft engine mount inner retainer installed on an airplane
between the first flight of the airplane or March 1, 2015 (whichever
occurs later), and the effective date of this AD, and that can be
identified by a purchase order (PO) listed in table 2 of Airbus AOT
A71N011-15, Rev 01, dated February 1, 2016.
    (3) An aft engine mount inner retainer installed on an airplane
between the first flight of the airplane or March 1, 2015 (whichever
occurs later), and the effective date of this AD, and that cannot be
identified by a PO.

(h) Service Information for Actions Required by Paragraph (g) of This
AD

    Accomplish the replacement required by paragraph (g) of this AD
in accordance with the service information specified in paragraph
(h)(1), (h)(2), or (h)(3) of this AD.
    (1) The Accomplishment Instructions of Airbus Service Bulletin
A320-71-1070, dated November 23, 2015.
    (2) Paragraph 4.2.2, ``Requirements,'' of Airbus AOT A71N011-15,
Revision 01, dated February 1, 2016.
    (3) The Accomplishment Instructions of Goodrich Service Bulletin
RA32071-165, dated October 9, 2015.

(i) Credit for Previous Actions

    This paragraph provides credit for the applicable actions
required by paragraph (g) of this AD, if those actions were
performed before the effective date of this AD using Airbus AOT
A71N011-15, Revision 01, dated February 1, 2016.

(j) Parts Installation Prohibition

    As of the effective date of this AD, no person may install an
aft engine mount retainer that meets any of the criteria specified
in paragraph (j)(1), (j)(2), or (j)(3) of this AD on any airplane.
    (1) A part from the aft engine mount having a serial number
listed in table 1 of Airbus AOT A71N011-15, Rev 01, dated February
1, 2016.
    (2) A part delivered through a PO listed in table 2 of Airbus
AOT A71N011-15, Rev 01, dated February 1, 2016.
    (3) A part delivered through an unidentified PO.

(k) Special Flight Permits

    Special flight permits, as described in Section 21.197 and
Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197
and 21.199), are not allowed.

(l) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. In accordance with 14 CFR
39.19, send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the International Branch, send it to ATTN: Sanjay
Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport
Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-
3356; telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>. Information may be
emailed to<EMAIL_ADDRESS>Before using any
approved AMOC, notify your appropriate principal inspector, or
lacking a principal inspector, the manager of the local flight
standards district office/certificate holding district office. The
AMOC approval letter must specifically reference this AD.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain corrective

actions from a manufacturer, the action must be accomplished using a
method approved by the Manager, International Branch, ANM-116,
Transport Airplane Directorate, FAA; or the European Aviation Safety
Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
If approved by the DOA, the approval must include the DOA-authorized
signature.
    (3) Required for Compliance (RC): If any service information
contains procedures or tests that are identified as RC, those
procedures and tests must be done to comply with this AD; any
procedures or tests that are not identified as RC are recommended.
Those procedures and tests that are not identified as RC may be
deviated from using accepted methods in accordance with the
operator's maintenance or inspection program without obtaining
approval of an AMOC, provided the procedures and tests identified as
RC can be done and the airplane can be put back in an airworthy
condition. Any substitutions or changes to procedures or tests
identified as RC require approval of an AMOC.

(m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information
(MCAI) EASA AD 2016-0010R1, dated February 16, 2016, for related
information. This MCAI may be found in the AD docket on the Internet
at http://www.regulations.gov by searching for and locating Docket
No. FAA-2016-6896.
    (2) Service information identified in this AD that is not
incorporated by reference is available at the addresses specified in
paragraphs (n)(3) and (n)(5) of this AD.

(n) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless this AD specifies otherwise.
    (i) Airbus Service Bulletin A320-71-1070, dated November 23,
2015.
    (ii) Airbus Alert Operators Transmission (AOT) A71N011-15,
Revision 01, dated February 1, 2016.
    (iii) Goodrich Service Bulletin RA32071-165, dated October 9,
2015.
    (3) For Airbus service information identified in this AD,
contact Airbus, Airworthiness Office--EIAS, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96;
fax: +33 5 61 93 44 51; email<EMAIL_ADDRESS>
Internet: http://www.airbus.com.
    (4) For Goodrich service information identified in this AD,
contact Goodrich Corporation, Aerostructures, 850 Lagoon Drive,
Chula Vista, CA 91910-2098; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>Internet: http://www.goodrich.com/TechPubs.
    (5) You may view this service information at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For
information on the availability of this material at the FAA, call
425-227-1221.
    (6) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on February 7, 2017.
Michael Kaszycki,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2017-03267 Filed 2-24-17; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: June 4, 2009 (Volume 74, Number 106)]
[Notices]
[Page 26912-26914]
[DOCID:fr04jn09-125]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59996; File No. SR-NYSE-2009-48]

Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC
Amending the Exchange's Continued Listing Standards on a Pilot Program
Basis

May 28, 2009.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on May 12, 2009, New York Stock Exchange LLC (``NYSE'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend certain of the continued listing
requirements in Section 802.01B of the Exchange's Listed Company Manual
(the ``Manual'') on a pilot program basis (the ``Pilot Program'')
through October 31, 2009. The text of the proposed rule change is
available at the Exchange, the Commission's Public Reference Room, and
http://www.nyse.com.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Section 802.01B(I) of the Manual provides that any company that
qualified to list under the Earnings Test set out in Section 102.01C(I)
or in Section 103.01B(I) (in the case of foreign private issuers) or
pursuant to the requirements set forth under the Assets and Equity Test
set forth in Section 102.01C(IV) or the ``Initial Listing Standard for
Companies Transferring from NYSE Arca'' set forth in Section 102.01C(V)
(the ``NYSE Arca Transfer Standard'') will be considered to be below
compliance standards if average global market capitalization over a
consecutive 30 trading-day period is less than $75 million and, at the
same time, total stockholders' equity is less than $75 million. The
Exchange proposes to amend this requirement on a Pilot Program basis
through October 31, 2009, to provide that companies that listed under
the initial listing standards set forth in the immediately preceding
sentence will only be considered to be below compliance standards if
average global market capitalization over a consecutive 30 trading-day
period is less than $50 million and, at the same time, total
stockholders' equity is less than $50 million. For companies listed
under the Earnings Test, this rule change returns continued listing
requirements to those in place prior to the adoption of the current
requirements on June 9, 2005.\4\ Companies that are below compliance
with the current continued listing requirements will be deemed to have
returned to compliance at the time of effectiveness of this filing,
unless they are below the levels established under the Pilot Program.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 51813 (June 9,
2005), 70 FR 35484 (June 20, 2005) (SR-NYSE-2004-20). The Assets and
Equity Test set forth in Section 102.01C(IV) and the NYSE Arca
Transfer Standard set forth in Section 102.01C(V) were adopted
subsequent to this amendment.
---------------------------------------------------------------------------

    In 2005, when the Exchange effectively amended its continued
listing standards for companies that listed under the Earnings test,
there were very few companies that were below the requirements at that
time and there was an expectation that very few companies would fall
below compliance with those requirements for the then foreseeable
future in light of relatively stable market and economic conditions. As
such, the heightened continued listing standards were considered a
reasonable response to the financial environment at that time and did
not lead to any meaningful increase in the number of companies that
fell below compliance. Conditions in the capital markets have changed
considerably over the last year, with a dramatic decline in stock
prices and market capitalizations of many listed companies and an
increase in market volatility. As such, a far greater number of
companies have fallen below the continued listing standards in the last
eighteen months than at any time since the effective date of the
amendment to the continued listing standards in 2005. Many companies
have fallen below $75 million in total market capitalization and it
seems likely that the stock prices of many of these companies will have
difficulty returning to their pre-recession level for a considerable
period of time. Consequently, the Exchange believes that a $50 million
market capitalization requirement is more appropriate under current
market conditions than the current $75 million requirement.
    Similarly, a large number of listed companies have recorded--or are
expected to soon record--significant write downs in the value of their
assets or significant impairment charges. It is reasonable to assume
that it will take many of these companies a long time to raise their
stockholders' equity back to pre-recession levels. The Exchange notes
that companies that list under the Earnings Test and the NYSE Arca
Transfer Standard are not subject to any stockholders' equity
requirement at the time of initial listing, while companies that list
under the Assets and Equity Test must demonstrate $50 million in
stockholders' equity. Yet, companies that listed under any of these
standards that have suffered a significant diminution in market
capitalization are required to have $75 million in stockholders' equity
to avoid becoming noncompliant or to cure an event of noncompliance,
notwithstanding the fact that they were required to demonstrate a lower
level of stockholders' equity--or none at all--at the time of original
listing. In light of that fact, the Exchange believes that a
stockholders' equity requirement of $50 million is more appropriate as
an element in its continued listing standard under current market
conditions.
    Because the continued listing standards proposed under the Pilot
Program are the same as those that were previously in place for
companies that listed under the Earnings Test, the Exchange has
considerable experience with the continued listing of companies that
have continued to trade on the Exchange with global market
capitalization and stockholders' equity

each below $75 million, but without triggering the continued listing
standard proposed under the Pilot Program. Based on that experience,
the Exchange believes that companies that exceed the proposed continued
listing standard are suitable for continued listing on the Exchange.
The Exchange notes that (i) under the Earnings Test, companies can list
on the basis of positive sustained earnings history and a $60 million
IPO public float ($100 million for a transfer), (ii) under the Assets
and Equity Test, companies can list on the basis of $150 million in
global market capitalization, $75 million in total assets and $50
million in total stockholders equity and a $60 million IPO public float
($100 million for a transfer) and (iii) under the NYSE Arca Transfer
Standard, companies can list on the basis of $75 million in global
market capitalization and $20 million in aggregate market value of
publicly-held shares, with no minimum requirement as to stockholders'
equity. Any significant diminution in the market capitalization of a
company listing under any of these standards that did not have
significant stockholders' equity could quickly lead to such company
being below compliance. The Exchange believes that continued listing
standards need to be established at a level that appropriately
corresponds to initial listing standards in the context of current
market and economic conditions, so that companies do not move rapidly
from initial listing qualification to being below compliance. The
Exchange believes that the proposed continued listing standards under
the Pilot Program will achieve this objective, given the current
financial environment.
    The Exchange notes that the continued listing standards to be
adopted under the Pilot Program are higher than those of any other
national securities exchange. Consequently, the Exchange believes that
the Pilot Program is consistent with the protection of investors and
the public interest and does not raise any novel regulatory issues. In
addition, because the continued listing standards under the Pilot
Program are the same as those that were in place on January 8, 2004,
the adoption of the Pilot Program does not affect the status of NYSE
listed securities under Exchange Act Rule 3a51-1(a) (the ``Penny Stock
Rule'').\5\
---------------------------------------------------------------------------

    \5\ 17 CFR 240.a51-1(a). The Commission notes that the listing
standards of the Exchange are no longer included in the
``grandfather'' exception. See Securities Exchange Act Release No.
57785 (May 6, 2008), 73 FR 27597 (May 13, 2008) (SR-NYSE-2008-17).
As a result of losing this exception, the Exchange is required to
satisfy the requirements of Exchange Act Rule 3a51-1(a)(2). The
Commission believes that the continued listing standards to be
adopted under the Pilot Program meet the requirements established in
Exchange Act Rule 3a51-1(a)(2)(ii) in that they are reasonably
related to the initial listing standards set forth in paragraph
(a)(2)(i) of Exchange Act Rule 3a51-1. The Commission notes that the
$50 million in total stockholders' equity requirement contained in
the Pilot Program exceeds the $5 million contained in Exchange Act
Rule 3a51-1(a)(2)(i)(A). The Commission further notes that the $50
million in average global market capitalization over a 30 trading-
day period is reasonably related to the $50 million in market value
of listed securities for 90 consecutive days prior to initial
listing contained in Exchange Act Rule 3a51-1(a)(2)(i)(A).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) \6\ of the Act, in general, and furthers the
objectives of Section 6(b)(5) of the Act,\7\\\ in particular in that it
is designed to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
The Exchange believes that the proposed amendment is consistent with
the investor protection objectives of the Act in that the proposed
continued listing standards are set at a high enough level that only
companies that are suitable for continued listing on the Exchange will
exceed the requirements of the continued listing standards.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the proposed rule change: (i) Does not significantly affect
the protection of investors or the public interest; (ii) does not
impose any significant burden on competition; and (iii) does not become
operative for 30 days after the date of the filing, or such shorter
time as the Commission may designate if consistent with the protection
of investors and the public interest, the proposed rule change has
become effective pursuant to Section 19(b)(3)(A) of the Act \8\ and
Rule 19b-4(f)(6) thereunder.\9\
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii)
under the Act, the Exchange is required to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \10\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay.
---------------------------------------------------------------------------

    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because it will allow NYSE to immediately implement, on a pilot basis,
new continued listing standards. The Commission notes that the new
continued listing standards will apply to companies qualified to list
under: (i) the Earnings Test set out in Section 102.01C(I) or in
Section 103.01B(I); (ii) the Assets and Equity Test set forth in
Section 102.01C(IV); or (iii) the ``Initial Listing Standards for
Companies Transferring from NYSE Arca'' as set forth in Section
102.01C(V). The Commission also notes that the standards being adopted
under the Pilot Program are identical, for those companies qualifying
under the Earnings Test, to those in effect on the Exchange prior to
the adoption of the current standards in 2005.\12\ The Commission
further notes that the continued listing standards proposed under the
Pilot Program are higher than similar standards currently in place on
other exchanges. In addition, the Commission notes that these continued
listing standards are being adopted on a pilot basis and absent a
proposed rule change by NYSE to either extend the pilot period or make
these changes permanent, the new listing standards will expire after
October 31, 2009. The pilot period will allow the NYSE and

the Commission to assess how the lower standards have worked should the
NYSE wish to extend the pilot. For these reasons, the Commission
designates that the proposed rule change become operative immediately
upon filing.\13\
---------------------------------------------------------------------------

    \12\ See Securities Exchange Act Release No. 51813 (June 9,
2005), 70 FR 35484 (June 20, 2005) (SR-NYSE-2004-20).
    \13\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change 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 an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2009-48 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2009-48. 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, on official business
days between the hours of 10 a.m. and 3 p.m. Copies of the filing also
will be available for inspection and copying at the principal office of
the Exchange. 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-2009-48 and should be submitted on or before June 25, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-12998 Filed 6-3-09; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: October 7, 2009 (Volume 74, Number 193)]
[Notices]
[Page 51577-51578]
[DOCID:fr07oc09-49]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP09-428-000]

Blue Sky Gas Storage, LLC; Notice of Availability of the
Environmental Assessment for the Proposed Blue Sky Gas Storage Project

September 30, 2009.
    The staff of the Federal Energy Regulatory Commission (FERC or
Commission) has prepared an environmental assessment (EA) on the
natural gas facilities proposed by Blue Sky Gas Storage, LLC (Blue Sky)
in the above-referenced docket. Blue Sky's proposal (the Blue Sky Gas
Storage Project) involves the conversion of a

depleted natural gas reservoir to a natural gas storage facility in
Logan County, Colorado. The purpose of the project is to provide
approximately 4.4 billion cubic feet of gas storage capacity to
interstate shippers of natural gas in the region.
    The EA assesses the potential environmental effects of the
construction and operation of the proposed Blue Sky Gas Storage Project
in accordance with the requirements of the National Environmental
Policy Act of 1969. The FERC staff concludes that approval of the
proposed project, with appropriate mitigating measures, would not
constitute a major federal action significantly affecting the quality
of the human environment.
    The proposed Blue Sky Gas Storage Project includes the following
proposed facilities:
     5.3 miles of 16-inch-diameter header pipeline extending
north from the storage facility to interconnect with Rockies Express
Pipeline, LLC, and Trailblazer Pipeline, LLC's interstate pipeline
systems;
     9.8 miles of 16-inch-diameter header pipeline extending
southwest to interconnect with Kinder Morgan Interstate Gas
Transmission, LLC's interstate pipeline system;
     10 new natural gas storage wells;
     One metering station at each of the two proposed
interconnections; and
     One 2,370 horsepower compressor station.
    The EA has been placed in the public files of the FERC. A limited
number of copies of the EA are available for distribution and public
inspection at: Federal Energy Regulatory Commission, Public Reference
Room, 888 First Street, NE., Room 2A, Washington, DC 20426. (202) 502-
8371.
    Copies of the EA have been mailed to Federal, State, and local
agencies; interested groups and individuals; newspapers and libraries
in the project area; and parties to this proceeding.
    Any person wishing to comment on the EA may do so. To ensure
consideration prior to a Commission decision on the proposal, it is
important that we receive your comments as specified below.
    Your comments should focus on the potential environmental effects,
reasonable alternatives, and measures to avoid or lessen environmental
impacts. The more specific your comments, the more useful they will be.
To ensure that your comments are timely and properly recorded, please
send in your comments so that they will be received in Washington, DC,
on or before October 30, 2009.
    For your convenience, there are three methods in which you can use
to submit your comments to the Commission. In all instances please
reference the project docket number CP09-428-000 with your submission.
The Commission encourages electronic filing of comments and has
dedicated eFiling expert staff available to assist you at<PHONE_NUMBER>
or<EMAIL_ADDRESS>    (1) You may file your comments electronically by using the Quick
Comment feature, which is located on the Commission's Internet Web site
at http://www.ferc.gov under the link to Documents and Filings. A Quick
Comment is an easy method for interested persons to submit text-only
comments on a project;
    (2) You may file your comments electronically by using the eFiling
feature, which is located on the Commission's Internet Web site at
http://www.ferc.gov under the link to Documents and Filings. eFiling
involves preparing your submission in the same manner as you would if
filing on paper, and then saving the file on your computer's hard
drive. You will attach that file as your submission. New eFiling users
must first create an account by clicking on ``Sign up'' or
``eRegister.'' You will be asked to select the type of filing you are
making. A comment on a particular project is considered a ``Comment on
a Filing;'' or
    (3) You may file your comments via mail to the Commission by
sending an original and two copies of your letter to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Room 1A, Washington, DC 20426.
    If you choose the option to mail your comments, label one copy of
the comments for the attention of Gas Branch 1, PJ-11.1.
    Comments will be considered by the Commission but will not serve to
make the commentor a party to the proceeding. Any person seeking to
become a party to the proceeding must file a motion to intervene
pursuant to Rule 214 of the Commission's Rules of Practice and
Procedures (18 CFR 385.214).\1\ Only intervenors have the right to seek
rehearing of the Commission's decisions.
---------------------------------------------------------------------------

    \1\ Interventions may also be filed electronically via the
Internet in lieu of paper. See the previous discussion of filing
comments electronically.
---------------------------------------------------------------------------

    Affected landowners and parties with environmental concerns may be
granted intervenor status upon showing good cause by stating that they
have a clear and direct interest in this proceeding which would not be
adequately represented by any other parties. You do not need intervenor
status to have your comments considered.
    Additional information about the project is available from the
Commission's Office of External Affairs at 1-866-208-FERC or on the
FERC Internet Web site (http://www.ferc.gov) using the eLibrary link.
Click on the eLibrary link, then on ``General Search'' and enter the
docket number excluding the last three digits in the docket number
field (i.e., CP09-428). Be sure you have selected an appropriate date
range. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at 1-866-208-3676, or for TTY,
contact<PHONE_NUMBER>. The eLibrary link on the FERC Internet Web site
also provides access to the texts of formal documents issued by the
Commission, such as orders, notices, and rulemakings.
    In addition, the Commission offers a free service called
eSubscription which allows you to keep track of all formal issuances
and submittals in specific dockets. This can reduce the amount of time
you spend researching proceedings by automatically providing you with
notifications of these filings, document summaries and direct links to
the documents. Go to http://www.ferc.gov/esubscribenow.htm.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-24123 Filed 10-6-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 85 (Thursday, May 2, 2013)]
[Notices]
[Pages 25774-25777]
[FR Doc No: 2013-10345]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69464; File No. SR-NASDAQ-2013-036]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order
Approving a Proposed Rule Change, as Modified by Amendment No. 2
Thereto, Relating to the Listing and Trading of the Shares of the First
Trust Senior Loan Fund of First Trust Exchange-Traded Fund IV

April 26, 2013.

I. Introduction

    On February 21, 2013, The NASDAQ Stock Market LLC (``Exchange'' or
``Nasdaq'') 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 to list and trade shares (``Shares'') of the First
Trust Senior Loan Fund of First Trust Exchange-Traded Fund IV
(``Fund''). On March 7, 2013, the Exchange filed Amendment No. 2 to the
proposed rule change, which superseded the original filing. The
Commission published for comment in the Federal Register notice of the
proposed rule change, as modified by Amendment No. 2, on March 13,
2013.\3\ The Commission received no comments on the proposed rule
change. This order approves the proposed rule change, as modified by
Amendment No. 2.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 69072 (March 7,
2013), 78 FR 16006 (``Notice'').
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade Shares pursuant to Nasdaq
Rule 5735, which governs the listing and trading of Managed Fund
Shares.\4\ The Exchange deems the Shares to be equity securities,
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities.\5\
---------------------------------------------------------------------------

    \4\ Under Nasdaq's Rules, a Managed Fund Share is a security
that (a) represents an interest in a registered investment company
(``Investment Company'') organized as an open-end management
investment company or similar entity, that invests in a portfolio of
securities selected by the Investment Company's investment adviser
consistent with the Investment Company's investment objectives and
policies; (b) is issued in a specified aggregate minimum number in
return for a deposit of a specified portfolio of securities and/or a
cash amount with a value equal to the next determined net asset
value; and (c) when aggregated in the same specified minimum number,
may be redeemed at a holder's request, which holder will be paid a
specified portfolio of securities and/or cash with a value equal to
the next determined net asset value. See Nasdaq Rule 5735(c)(1).
    \5\ See Notice, supra note 3, 78 FR at 16017.
---------------------------------------------------------------------------

    The Shares will be offered by the First Trust Exchange Traded Fund
IV (``Trust''), which is organized as a Massachusetts business trust
and is registered with the Commission as an investment company.\6\
First Trust Advisors L.P. is the investment adviser (``Adviser'') to
the Fund. First Trust Portfolios L.P. is the principal underwriter and
distributor of the Shares (``Distributor''). The Bank of New York
Mellon Corporation will act as the administrator, accounting agent,
custodian and transfer agent to the Fund (``Custodian''). The Adviser
is affiliated with the Distributor, a broker-dealer. As required by
Nasdaq Rule 5735(g),\7\ the Adviser has implemented a firewall with
respect to its broker-dealer affiliate

regarding access to information concerning the composition and/or
changes to the portfolio.\8\
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    \6\ The Trust is registered under the Investment Company Act of
1940 (``1940 Act''). See Post-Effective Amendment No. 15 to
Registration Statement on Form N-1A for the Trust, dated December
14, 2012 (File Nos. 333-174332 and 811-22559) (``Registration
Statement''). In addition, the Exchange represents that the Trust
has obtained certain exemptive relief under the 1940 Act. See
Investment Company Act Release No. 30029 (April 10, 2012) (File No.
812-13795) (``Exemptive Order'').
    \7\ Nasdaq Rule 5735(g) also requires that Adviser personnel who
make decisions regarding the Fund's portfolio be subject to
procedures designed to prevent the use and dissemination of
material, non-public information regarding the Fund's portfolio.
    \8\ Additionally, the Exchange represents that, in the event (a)
the Adviser becomes newly affiliated with a broker-dealer, or (b)
any new adviser or sub-adviser becomes affiliated with a broker-
dealer, it will implement a fire wall with respect to such broker-
dealer regarding access to information concerning the composition
and/or changes to the portfolio, and will be subject to procedures
designed to prevent the use and dissemination of material, non-
public information regarding such portfolio.
---------------------------------------------------------------------------

Objectives of the Fund

    The Fund's primary investment objective is to provide high current
income. The Fund's secondary investment objective is the preservation
of capital.

The Fund's Principal Investments \9\
---------------------------------------------------------------------------

    \9\ Additional information regarding the Fund, the Fund's
portfolio, and the Shares, including investment strategies, risks,
Senior Loan market, Primary and Secondary Indices, creation and
redemption procedures, fees, portfolio holdings disclosure policies,
distributions and taxes is included in the Notice and in the
Registration Statement. See supra, notes 3 and 6, respectively.
---------------------------------------------------------------------------

    In pursuing its investment objective, under normal market
conditions,\10\ the Fund will seek to outperform a primary and
secondary loan index (as described below) by investing at least 80% of
its net assets (plus any borrowings for investment purposes) in
``Senior Loans.'' \11\ It is anticipated that the Fund will invest
approximately 50% to 75% of its net assets in Senior Loans that are
eligible for inclusion in and meet the liquidity thresholds of the S&P/
LSTA U.S. Leveraged Loan 100 Index (``Primary Index'') or the Markit
iBoxx USD Leveraged Loan Index (``Secondary Index'').\12\ Each of the
Fund's Senior Loan investments is expected to have no less than $250
million USD par outstanding.
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    \10\ In the Notice, the term ``under normal market conditions''
is defined and a description of what the Fund may hold during
periods of extreme market disturbance is provided. See Notice, supra
note 3, 78 FR at 16007, n.10.
    \11\ The Adviser considers Senior Loans to be first lien senior
business loans that typically pay interest at a floating or
adjusting rate that is determined periodically at a designated
premium above a base lending rate, most commonly the London-
Interbank Offered Rate (``LIBOR''). See id. The Fund will invest in
Senior Loans that are made predominantly to businesses operating in
North America, but may also invest in Senior Loans made to
businesses operating outside of North America. See id. Generally,
each Senior Loan will be secured by collateral such as accounts
receivable; inventory; equipment; real estate; intangible assets
such as trademarks, copyrights and patents; and securities of
subsidiaries or affiliates. See id. at 16008.
    \12\ The Primary Index comprises the 100 largest Senior Loans,
as measured by the borrowed amounts outstanding; the Secondary Index
selects the 100 most liquid Senior Loans in the market. In addition
to size, liquidity is also measured, in part, based on the number of
market makers who trade a specific Senior Loan and the number and
size of transactions in the context of the prevailing bid/offer
spread. Markit utilizes proprietary models for the Secondary Index
composition and updates to the Secondary Index. The Fund will not
seek to track either the Primary or Secondary Index but rather will
seek to outperform those indices.
---------------------------------------------------------------------------

    The Fund will primarily invest in securities (including Senior
Loans) rated below investment grade.

The Fund's Other Investments

    In addition to the principal investments described above, the Fund
may invest in: (1) Fixed-rate or floating-rate income-producing
securities (including U.S. government debt securities and investment-
grade and below-investment-grade corporate debt securities); (2)
preferred securities; and (3) securities of other investment companies
registered under the 1940 Act.\13\ In addition, the Fund may invest a
portion of its assets in exchange-traded pooled investment vehicles
(other than investment companies) that invest primarily in securities
of the types in which the Fund may invest directly. The Fund may
receive equity, warrants, corporate bonds and other similar securities
as a result of the restructuring of the debt of an issuer or a
reorganization of a senior loan or bond or may acquire such securities
together with a high yield bond or senior loan(s) of an issuer. Such
investments will be subject to the Fund's investment objectives,
restrictions and strategies.
---------------------------------------------------------------------------

    \13\ The equity securities in which the Fund may invest,
including securities of other investment companies registered under
the 1940 Act, will be limited to securities that trade in markets
that are members of the Intermarket Surveillance Group (``ISG''),
which includes all U.S. national securities exchanges and certain
foreign exchanges, or are parties to a comprehensive surveillance
sharing agreement with the Exchange.
---------------------------------------------------------------------------

    The Fund may invest in secured loans that are not first lien loans
or in loans that are unsecured. These loans have the same
characteristics as Senior Loans except that such loans are not first in
priority of repayment and/or may not be secured by collateral.

Fund Investment Limitations

    Under normal market conditions, up to 10% of the net assets of the
Fund may be denominated in currencies other than the U.S. dollar. The
Fund intends to hedge its non-U.S. dollar holdings.\14\
---------------------------------------------------------------------------

    \14\ See Notice, supra note 3, 78 FR at 16009.
---------------------------------------------------------------------------

    The Fund will not invest 25% or more of the value of its total
assets in securities of issuers in any one industry.\15\
---------------------------------------------------------------------------

    \15\ See id. at 16010.
---------------------------------------------------------------------------

    The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid securities (calculated at the time of investment),
including Rule 144A securities, junior subordinated loans, and
unsecured loans deemed illiquid by the Adviser.\16\ The Fund will
monitor its portfolio liquidity on an ongoing basis to determine
whether, in light of current circumstances, an adequate level of
liquidity is being maintained, and the Fund will consider taking
appropriate steps in order to maintain adequate liquidity if, through a
change in values, net assets, or other circumstances, more than 15% of
the Fund's net assets are held in illiquid securities. Illiquid
securities include securities subject to contractual or other
restrictions on resale and other instruments that lack readily
available markets as determined in accordance with Commission staff
guidance.
---------------------------------------------------------------------------

    \16\ See id.
---------------------------------------------------------------------------

    Except for investments in ETFs that may hold non-U.S. issues, the
Fund will not otherwise invest in non-U.S. equity issues.\17\ The Fund
will not invest in options contracts, futures contracts, or swap
agreements.\18\
---------------------------------------------------------------------------

    \17\ See id.
    \18\ See id.
---------------------------------------------------------------------------

    The Fund's investments will be consistent with the Fund's
investment objective and will not be used to enhance leverage.\19\
---------------------------------------------------------------------------

    \19\ See id.
---------------------------------------------------------------------------

III. Discussion and Commission's Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of Section 6 of the Act \20\
and the rules and regulations thereunder applicable to a national
securities exchange.\21\ In particular, the Commission finds that the
proposal is consistent with Section 6(b)(5) of the Act,\22\ which
requires, among other things, that the Exchange's rules be designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general, to protect investors and the public
interest. The Commission notes that the Shares will be listed and
traded on the Exchange pursuant to the initial and continued listing
criteria in Nasdaq's Rule 5735.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78f.
    \21\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \22\ 17 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission finds that the proposal to list and trade the Shares
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the
Act,\23\ which sets

forth Congress' finding that it is in the public interest and
appropriate for the protection of investors and the maintenance of fair
and orderly markets to assure the availability to brokers, dealers, and
investors of information with respect to quotations for, and
transactions in, securities. Information regarding market price and
trading volume of the Shares will be continually available on a real-
time basis throughout the day on brokers' computer screens and other
electronic services, and quotation and last-sale information will be
available via Nasdaq proprietary quote and trade services, as well as
in accordance with the Unlisted Trading Privileges (``UTP'') and the
Consolidated Tape Association ``CTA'') plans for the Shares and any
underlying exchange-traded product.\24\ Intra-day, executable price
quotations of the Senior Loans, fixed income securities, and other
assets held by the Fund will be available from major broker-dealer
firms or on the exchange on which they are traded, if applicable.
Intra-day price information is also available through subscription
services, such as Bloomberg, Markit, and Thomson Reuters, which can be
accessed by authorized participants and other investors.
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
    \24\ See email from Jonathan F. Cayne, Associate General
Counsel, The NASDAQ OMX Group, to Christopher Chow, Special Counsel,
and Kristie Diemer, Special Counsel, Division of Trading and
Markets, Commission, dated April 25, 2013, stating that quotation
and last-sale information will be available in accordance with the
UTP and the CTA plans for the Shares and any underlying exchange-
traded products, as well as via Nasdaq proprietary quote and trade
services.
---------------------------------------------------------------------------

    The Commission believes that the proposal to list and trade the
Shares is reasonably designed to promote fair disclosure of information
that may be necessary to price the Shares appropriately and to prevent
trading when a reasonable degree of transparency cannot be assured. The
NAV of the Fund will be calculated by the Custodian and determined at
the close of the regular trading session on the New York Stock Exchange
(ordinarily 4:00 p.m., E.T.) on each day that such exchange is open,
provided that fixed-income assets (and, accordingly, the Fund's NAV)
may be valued as of the announced closing time for trading in fixed-
income instruments on any day that the Securities Industry and
Financial Markets Association (or the applicable exchange or market on
which the Fund's investments are traded) announces an early closing
time. On each business day, before commencement of trading in Shares in
the Regular Market Session \25\ on the Exchange, the Fund will disclose
on the Distributor's Web site the identities and quantities of the
portfolio of securities and other held by the Fund that will form the
basis for the Fund's calculation of NAV at the end of the business day
assets (``Disclosed Portfolio,'' as defined in Nasdaq Rule
5735(c)(2)).\26\ The Exchange will obtain a representation from the
issuer of the Shares that the NAV per Share will be calculated daily
and that the NAV and the Disclosed Portfolio will be made available to
all market participants at the same time. Additionally, the Intraday
Indicative Value, available on the NASDAQ OMX Information LLC
proprietary index data service will be widely disseminated by one or
more major market data vendors and broadly displayed at least every 15
seconds during the Regular Market Session.
---------------------------------------------------------------------------

    \25\ See Nasdaq Rule 4120(b)(4) (describing the three trading
sessions on the Exchange: (1) Pre-Market Session from 4 a.m. to 9:30
a.m. E.T.; (2) Regular Market Session from 9:30 a.m. to 4 p.m. or
4:15 p.m. E.T.; and (3) Post-Market Session from 4 p.m. or 4:15 p.m.
to 8 p.m. E.T.).
    \26\ Under accounting procedures to be followed by the Fund,
trades made on the prior business day (``T'') will be booked and
reflected in NAV on the current business day (``T+1'').
Notwithstanding the foregoing, portfolio trades that are executed
prior to the opening of the Exchange on any business day may be
booked and reflected in NAV on such business day. Accordingly, the
Fund will be able to disclose at the beginning of the business day
the portfolio that will form the basis for the NAV calculation at
the end of the business day.
---------------------------------------------------------------------------

    Trading in Shares will be halted if the circuit breaker parameters
in Nasdaq Rule 4120(a)(11) have been reached or because of market
conditions or for reasons that, in the view of the Exchange, make
trading in the Shares inadvisable, and trading in the Shares will be
subject to Nasdaq Rule 5735(d)(2)(D), which sets forth circumstances
under which trading in the Shares may be halted. The Exchange states
that it has a general policy prohibiting the distribution of material,
non-public information by its employees. Further, the Commission notes
that the Reporting Authority that provides the Disclosed Portfolio must
implement and maintain, or be subject to, procedures designed to
prevent the use and dissemination of material, non-public information
regarding the actual components of the portfolio.\27\ The Adviser is
affiliated with a broker-dealer and has implemented a firewall with
respect to that broker-dealer regarding access to information
concerning the composition and/or changes to the Fund's portfolio.\28\
The Exchange has represented that S&P and Markit are not broker-dealers
or affiliated with a broker-dealer and that each has implemented
procedures designed to prevent the use and dissemination of material,
non-public information regarding the Primary Index and Secondary Index,
respectively.\29\
---------------------------------------------------------------------------

    \27\ See Nasdaq Rule 5735(d)(2)(B)(ii).
    \28\ See note 7, supra and accompanying text. The Commission
notes that an investment adviser to an open-end fund is required to
be registered under the Investment Advisers Act of 1940 (``Advisers
Act''). As a result, the Adviser and Sub-Adviser and their related
personnel are subject to the provisions of Rule 204A-1 under the
Advisers Act relating to codes of ethics. This Rule requires
investment advisers to adopt a code of ethics that reflects the
fiduciary nature of the relationship to clients as well as
compliance with other applicable securities laws. Accordingly,
procedures designed to prevent the communication and misuse of non-
public information by an investment adviser must be consistent with
Rule 204A-1 under the Advisers Act. In addition, Rule 206(4)-7 under
the Advisers Act makes it unlawful for an investment adviser to
provide investment advice to clients unless such investment adviser
has (i) adopted and implemented written policies and procedures
reasonably designed to prevent violation, by the investment adviser
and its supervised persons, of the Advisers Act and the Commission
rules adopted thereunder; (ii) implemented, at a minimum, an annual
review regarding the adequacy of the policies and procedures
established pursuant to subparagraph (i) above and the effectiveness
of their implementation; and (iii) designated an individual (who is
a supervised person) responsible for administering the policies and
procedures adopted under subparagraph (i) above
    \29\ See Notice, supra note 3, 78 FR at 16018.
---------------------------------------------------------------------------

    Under normal market conditions, the Fund generally will satisfy the
generic fixed income listing requirements in Nasdaq Rule 5705(b)(4) on
a continuous basis measured at the time of purchase. The Exchange
states that trading in the Shares will be subject to the existing
trading surveillances, administered by FINRA on behalf of the Exchange,
which are designed to detect violations of Exchange rules and
applicable federal securities laws. Further, the Exchange represents
that these procedures are adequate to properly monitor Exchange trading
of the Shares in all trading sessions and to deter and detect
violations of Exchange rules and applicable federal securities
laws.\30\ The Commission believes that the Exchange's procedures,
combined with the Fund's general adherence to the generic fixed income
listing requirements in Nasdaq Rule 5705(b)(4) on a continuous basis
measured at the time of purchase are designed to mitigate the potential
for price manipulation of the Shares.
---------------------------------------------------------------------------

    \30\ See id. at 16017.
---------------------------------------------------------------------------

    In support of this proposal, the Exchange has made representations,
including:
    (1) The Shares will conform to the initial and continued listing
criteria under Nasdaq Rule 5735.
    (2) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions.\31\
---------------------------------------------------------------------------

    \31\ See id.

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

    (3) The Exchange represents that trading in the Shares will be
subject to the existing trading surveillances, administered by FINRA on
behalf of the Exchange, which are designed to detect violations of
Exchange rules and applicable federal securities laws and that these
procedures are adequate to properly monitor Exchange trading of the
Shares in all trading sessions and to deter and detect violations of
Exchange rules and applicable federal securities laws.
    (4) Prior to the commencement of trading, the Exchange will inform
its members in an Information Circular of the special characteristics
and risks associated with trading the Shares. Specifically, the
Information Circular will discuss the following: (a) The procedures for
purchases and redemptions of Shares in Creation Units (and that Shares
are not individually redeemable); (b) Nasdaq Rule 2310, which imposes
suitability obligations on Nasdaq members with respect to recommending
transactions in the Shares to customers; (c) how information regarding
the Intraday Indicative Value is disseminated; (d) the risks involved
in trading the Shares during the Pre-Market and Post-Market Sessions
when an updated Intraday Indicative Value will not be calculated or
publicly disseminated; (e) the requirement that members deliver a
prospectus to investors purchasing newly issued Shares prior to or
concurrently with the confirmation of a transaction; and (f) trading
information.
    (5) For initial and continued listing, the Fund will be in
compliance with Rule 10A-3 under the Act.\32\
---------------------------------------------------------------------------

    \32\ See 17 CFR 240.10A-3.
---------------------------------------------------------------------------

    (6) It is anticipated that the Fund, in accordance with its
principal investment strategy, will invest approximately 50% to 75% of
its net assets in Senior Loans that are eligible for inclusion in and
meet the liquidity thresholds of the Primary or the Secondary Indices.
Each of the Fund's Senior Loan investments is expected to have no less
than $250 million USD par outstanding. While the Fund may hold a Senior
Loan that has defaulted subsequent to its purchase by the Fund, the
Adviser does not intend to purchase Senior Loans that are in default.
    (7) Under normal market conditions, the Fund would generally
satisfy the generic fixed income listing requirements in Nasdaq Rule
5705(b)(4) on a continuous basis measured at the time of purchase.
    (8) The Fund will not invest in non-U.S.-registered equity issues
(except for underlying ETFs that may hold non-U.S. issues). The Fund
may hold up to an aggregate amount of 15% of its net assets in illiquid
securities (calculated at the time of investment), including Rule 144A
securities, junior subordinated loans, and unsecured loans deemed
illiquid by the Adviser. The Fund will not invest in options contracts,
futures contracts, or swap agreements.
    (9) The Fund's investments will be consistent with the Fund's
investment objectives and will not be used to enhance leverage.
    (10) A minimum of 100,000 Shares will be outstanding at the
commencement of trading. This approval order is based on all of the
Exchange's representations, including those set forth in the Notice.

IV. Conclusion

    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act \33\ and the
rules and regulations thereunder applicable to a national securities
exchange.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\34\ that the proposed rule change (SR-NASDAQ-2013-036), as
modified by Amendment No. 2, be, and it hereby is, approved.
---------------------------------------------------------------------------

    \34\ 15 U.S.C. 78s(b)(2).
    \35\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\35\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-10345 Filed 5-1-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: May 17, 2010 (Volume 75, Number 94)]
[Notices]
[Page 27622-27623]
[DOCID:fr17my10-120]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-1999-6156; FMCSA-1999-6480; FMCSA-2001-10578; FMCSA-
2001-11426; FMCSA-2005-22727; FMCSA-2005-23099; FMCSA-2005-23238;
FMCSA-2006-23773; FMCSA-2006-24015; FMCSA-2007-0071; FMCSA-2008-0021]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

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

SUMMARY: FMCSA announces its decision to renew the exemptions from the
vision requirement in the Federal Motor Carrier Safety Regulations for
18 individuals. FMCSA has statutory authority to exempt individuals
from the vision requirement if the exemptions granted will not
compromise safety. The Agency has concluded that granting these
exemption renewals will provide a level of safety that is equivalent
to, or greater than, the level of safety maintained without the
exemptions for these commercial motor vehicle (CMV) drivers.

DATES: This decision is effective May 25, 2010. Comments must be
received on or before June 16, 2010.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket ID FMCSA-1999-6156; FMCSA-1999-6480;
FMCSA-2001-10578; FMCSA-2001-11426; FMCSA-2005-22727; FMCSA-2005-23099;
FMCSA-2005-23238; FMCSA-2006-23773; FMCSA-2006-24015; FMCSA-2007-0071;
FMCSA-2008-0021, using any of the following methods.
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number
for this Notice. Note that DOT posts all comments received without
change to http://www.regulations.gov, including any personal
information included in a comment. Please see the Privacy Act heading
below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day, 365
days each year. If you want acknowledgment that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19476). This information is
also available at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical
Programs,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,

Department of Transportation, 1200 New Jersey Avenue, SE., Room W64-
224, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5
p.m. Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the vision requirements in 49 CFR 391.41(b)(10), which applies to
drivers of CMVs in interstate commerce, for a two-year period if it
finds ``such exemption would likely achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption.'' The procedures for requesting an exemption (including
renewals) are set out in 49 CFR part 381.

Exemption Decision

    This notice addresses 18 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. FMCSA has
evaluated these 18 applications for renewal on their merits and decided
to extend each exemption for a renewable two-year period. They are:
Paul D. Crouch, John M. Doney, Curtis N. Fulbright, Joshua G. Hansen,
Daniel W. Henderson, Edward W. Hosier, Craig T. Jorgensen, Jose A.
Lopez, Earl E. Martin, Bobby L. Mashburn, Brian E. Monaghan, William P.
Murphy, Roy J. Oltman, Albert L. Remsburg, III, Antonio A. Ribeiro,
Justin T. Richman, Darwin J. Thomas, and Frankie A. Wilborn.
    These exemptions are extended subject to the following conditions:
(1) That each individual has a physical examination every year (a) by
an ophthalmologist or optometrist who attests that the vision in the
better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b) by a medical examiner who attests that the individual is otherwise
physically qualified under 49 CFR 391.41; (2) that each individual
provides a copy of the ophthalmologist's or optometrist's report to the
medical examiner at the time of the annual medical examination; and (3)
that each individual provides a copy of the annual medical
certification to the employer for retention in the driver's
qualification file and retains a copy of the certification on his/her
person while driving for presentation to a duly authorized Federal,
State, or local enforcement official. Each exemption will be valid for
two years unless rescinded earlier by FMCSA. The exemption will be
rescinded if: (1) The person fails to comply with the terms and
conditions of the exemption; (2) the exemption has resulted in a lower
level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31136(e) and 31315.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. In accordance with 49
U.S.C. 31136(e) and 31315, each of the 18 applicants has satisfied the
entry conditions for obtaining an exemption from the vision
requirements (64 FR 54948; 65 FR 159; 66 FR 66969; 68 FR 69432; 71 FR
644; 73 FR 27014; 64 FR 68195; 65 FR 20251; 67 FR 17102; 69 FR 17267;
71 FR 16410; 66 FR 53826; 66 FR 66966; 67 FR 10471; 67 FR 19798; 69 FR
19611; 71 FR 19604; 70 FR 71884; 71 FR 4632; 71 FR 4194; 71 FR 13450;
71 FR 5105; 71 FR 19600; 71 FR 6826; 71 FR 19602; 71 FR 14566; 71 FR
30227; 73 FR 6242; 73 FR 1695073 FR 15567; 73 FR 27015). Each of these
18 applicants has requested renewal of the exemption and has submitted
evidence showing that the vision in the better eye continues to meet
the standard specified at 49 CFR 391.41(b)(10) and that the vision
impairment is stable. In addition, a review of each record of safety
while driving with the respective vision deficiencies over the past two
years indicates each applicant continues to meet the vision exemption
standards. These factors provide an adequate basis for predicting each
driver's ability to continue to drive safely in interstate commerce.
Therefore, FMCSA concludes that extending the exemption for each
renewal applicant for a period of two years is likely to achieve a
level of safety equal to that existing without the exemption.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by June 16, 2010.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 18 individuals from the vision
requirement in 49 CFR 391.41(b)(10). The final decision to grant an
exemption to each of these individuals was based on the merits of each
case and only after careful consideration of the comments received to
its notices of applications. The notices of applications stated in
detail the qualifications, experience, and medical condition of each
applicant for an exemption from the vision requirements. That
information is available by consulting the above cited Federal Register
publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all of these drivers, are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

    Issued on: May 4, 2010.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. 2010-11713 Filed 5-14-10; 8:45 am]
BILLING CODE 4910-EX-P