[Federal Register: April 2, 2008 (Volume 73, Number 64)]
[Proposed Rules]
[Page 17937-17939]
[DOCID:fr02ap08-18]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2008-0393; Directorate Identifier 2008-CE-011-AD]
RIN 2120-AA64

Airworthiness Directives; Viking Air Limited (Formerly
deHavilland Inc.) Model DHC-2 Series Airplanes

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to adopt a new airworthiness directive (AD) for the
products listed above that would supersede an existing AD. This
proposed AD results from mandatory continuing airworthiness information
(MCAI) originated by an aviation authority of another country to
identify and correct an unsafe condition on an aviation product. The
MCAI describes the unsafe condition as:

    Cracks have been reported in the front spar center web of the
tailplane at the pick-up bracket and at lightening holes. If not
detected early and repaired, these cracks may lead to failure of the
tailplane.

The proposed AD would require actions that are intended to address the
unsafe condition described in the MCAI.

DATES: We must receive comments on this proposed AD by May 2, 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.

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: Pong Lee, Aerospace Engineer, FAA, New
York Certification Office, 1600 Stewart Avenue, Suite 410, Westbury,
New York 11590; telephone:<PHONE_NUMBER>; 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-2008-0393;
Directorate Identifier 2008-CE-011-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

    AD 92-24-02, Amendment 39-8407 became effective on December 15,
1992. AD 92-24-02 requires actions intended to address an unsafe
condition on the products listed above.
    Since we issued AD 92-24-02, we have determined that the visual
repetitive inspection required in AD 92-24-02 should be a fluorescent
penetrant inspection.
    Transport Canada, which is the aviation authority for Canada, has
issued AD No. CF-1991-42R1, dated March 13, 2007 (referred to after
this as ``the MCAI''), to correct an unsafe condition for the specified
products. The MCAI states:

    Cracks have been reported in the front spar center web of the
tailplane at the pick-up bracket and at lightening holes. If not
detected early and repaired, these cracks may lead to failure of the
tailplane. This revision is issued to reflect the new requirement to
inspect the tailplane front spar web behind the pick-up brackets
using fluorescent penetrant inspection (FPI) instead of the visual
inspection method used previously.

You may obtain further information by examining the MCAI in the AD
docket.

Relevant Service Information

    DeHavilland Inc., the former type certificate (TC) holder, issued
Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision
C, revised September 4, 1992; and deHavilland Aircraft of Canada,
Limited Technical News Sheet, dated August 1, 1952. Viking Air Limited,
the present TC holder has issued Viking DHC-2 Beaver Service Bulletin
No. 2/47, Revision E, dated January 23, 2007. The actions described in
this service information are intended to correct the unsafe condition
identified in the MCAI.

FAA's Determination and Requirements of the Proposed AD

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

Differences Between This Proposed AD and the MCAI or Service
Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have proposed different actions in this AD from those
in the MCAI in order to follow FAA policies. Any such differences are
highlighted in a NOTE within the proposed AD.

Costs of Compliance

    Based on the service information, we estimate that this proposed AD
would affect about 396 products of U.S. registry. We also estimate that
it would take about 10 work-hours per product to comply with the basic
requirements of this proposed AD. The average labor rate is $80 per
work-hour.
    Based on these figures, we estimate the cost of the proposed AD on
U.S. operators to be $316,800, or $800 per product.
    In addition, we estimate that any necessary follow-on actions would
take

about 48 work-hours and require parts costing $1,854, for a cost of
$5,694 per product. We have no way of determining the number of
products that may need these actions.

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.
    We prepared a regulatory evaluation of the estimated costs to
comply with this proposed AD and placed it 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 removing Amendment 39-8407, and
adding the following new AD:

Viking Air Limited (formerly deHavilland Inc.): Docket No. FAA-2008-
0393; Directorate Identifier 2008-CE-011-AD.

Comments Due Date

    (a) We must receive comments by May 2, 2008.

Affected ADs

    (b) This AD supersedes AD 92-24-02; Amendment 39-8407.

Applicability

    (c) This AD applies to Models DHC-2 Mk. I, DHC-2 Mk. II, and
DHC-2 Mk. III airplanes, all serial numbers, certificated in any
category.

Subject

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

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:

    Cracks have been reported in the front spar center web of the
tailplane at the pick-up bracket and at lightening holes. If not
detected early and repaired, these cracks may lead to failure of the
tailplane. This revision is issued to reflect the new requirement to
inspect the tailplane front spar web behind the pick-up brackets
using fluorescent penetrant inspection (FPI) instead of the visual
inspection method used previously.

Retained Actions of AD 92-24-02

    (f) Unless already done, do the following:
    (1) If you have cracks that have been previously repaired with
stop-drilled holes, within the next 12 calendar months after
December 15, 1992 (the compliance date retained from AD 92-24-02),
replace the tailplane front spar following Bombardier de Havilland
DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September
4, 1992.
    (2) For airplanes with lightening holes (without modification 2/
466), within the next 200 hours time-in-service (TIS) after December
15, 1992 (the compliance date retained from AD 92-24-02), visually
inspect the front spar web in the area of the lightening holes for
cracks between the pickup brackets. If cracks are found, before
further flight, replace the tailplane front spar. Follow Bombardier
de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C,
revised September 4, 1992.
    (3) Within the next 24 calendar months after December 15, 1992
(the compliance date retained from AD 92-24-02), do the following:
    (i) For airplanes having serial numbers (S/Ns) 1 through 100,
install longer pick-up brackets (modification 2/436) following
deHavilland Aircraft of Canada, Limited Technical News Sheet, dated
August 1, 1952.

    Note 1: Modification 2/436 was incorporated at manufacture on
airplanes beginning with S/N 101. Other airplanes may have
incorporated this modification in the field.

    (ii) For airplanes having S/N 1 through 317, install a gusset
plate on the rear face at each of the pick-up brackets (modification
2/758) following deHavilland Aircraft of Canada, Limited Technical
News Sheet, dated August 1, 1952.

    Note 2: Modification 2/758 was incorporated at manufacture on
airplanes beginning with S/N 318. Other airplanes may have
incorporated this modification in the field.

New Requirements of This AD: Actions and Compliance

    (g) Unless already done, do the following actions:
    (1) Within 200 hours time-in-service (TIS) after the effective
date of this AD and repetitively thereafter at intervals not to
exceed every 24 months, remove the tailplane front spar pick-up
brackets and do a fluorescent penetrant inspection of the tailplane
front spar web for cracks in the area of the pick-up brackets
following Appendix A of Viking DHC-2 Beaver Service Bulletin 2/47,
Revision E, dated January 23, 2007.
    (2) If during any of the inspections required in paragraph
(g)(1) of this AD cracks are found, before further flight, replace
the tailplane front spar following Viking DHC-2 Beaver Service
Bulletin 2/47, Revision E, dated January 23, 2007.
    (3) Within the next 12 months after the effective date of this
AD, incorporate modification 2/466 (deletion of lightening holes)
following Viking DHC-2 Product Support Manual 1-2-MOD.
    (4) If any cracks are found as a result of the inspections
required by this AD, use the following contact information to report
your results: Viking Air Limited, Technical Support, 9574 Hampden
Road, Sidney, British-Columbia, Canada, V8L 5V5; telephone: regional
250-656-7227, North America 1-800-0663-8444, or international 1-800-
6727-6727; fax:<PHONE_NUMBER>; e-mail:
<EMAIL_ADDRESS>
FAA AD Differences

    Note 3: This AD differs from the MCAI and/or service information
as follows: No differences.

Other FAA AD Provisions

    (g) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager, New
York Aircraft Certification Office, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. Send information to ATTN: Pong Lee, Aerospace
Enginee, FAA, New York Certification Office, 1600 Stewart Avenue,
Suite 410, Westbury, New York 11590; telephone:<PHONE_NUMBER>; fax:
(516) 794-5531. 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.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has
approved the information collection requirements and has assigned
OMB Control Number 2120-0056.

Related Information

    (h) Refer to Transport Canada AD CF-1991-42R1, dated March 13,
2007; and Viking DHC-2 Beaver Service Bulletin No. 2/47, Revision E,
dated January 23, 2007, for related information.

    Issued in Kansas City, Missouri, on March 25, 2008.
Kim Smith,
Manager, Small Airplane Directorate, Aircraft Certification Service.
 [FR Doc. E8-6831 Filed 4-1-08; 8:45 am]

BILLING CODE 4910-13-P


[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Rules and Regulations]
[Pages 55139-55141]
[FR Doc No: 2012-22198]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0817]
RIN 1625-AA00

Safety Zone; Chicago Red Bull Flugtag, Lake Michigan, Chicago, IL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on
Lake Michigan near Chicago, IL. This safety zone is intended to
restrict vessels from a portion of Lake Michigan for the Red Bull
Flugtag event. This temporary safety zone is necessary to protect event
participants, the surrounding public, and vessels from the hazards
associated with this event.

DATES: This rule will be effective from 11 a.m. to 5 p.m. on September
08, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2012-0817. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box, and click ``Search.'' You may
visit the Docket Management Facility, Department of Transportation,
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 FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or email MST1 Joseph McCollum, U.S. Coast Guard
Sector Lake Michigan; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because doing so would be impracticable and
contrary to the public interest. The final details for this event were
not known to the Coast Guard until there was insufficient time
remaining before the event to publish an NPRM. Thus, delaying the
effective date of this rule to wait for a comment period to run would
be both impracticable and contrary to the public interest because it
would inhibit the Coast Guard's ability to protect spectators and
vessels from the hazards associated with an acrobatic event involving
human-powered craft, which are discussed further below.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. For the same reasons discussed in
the preceding paragraph, waiting for a 30 day notice period to run
would be impracticable and contrary to the public interest.

B. Basis and Purpose

    Between 11:00 a.m. until 5:00 p.m. on September 8, 2012 Red Bull
North America will sponsor their Red Bull Flugtag event on the waters
of Lake Michigan near North Avenue Beach, Chicago, IL. The Captain of
the Port, Sector Lake Michigan, has determined that the Red Bull
Flugtag event, which will involve personally-crafted flying machines
with human occupants falling from a raised platform into Lake Michigan,
will pose a significant risk to public safety and property. Such
hazards include drifting debris, collisions between spectators, falling
water craft and their human occupants, and the obscuring of persons in
need of rescue by spectator water craft.

C. Discussion of Rule

    A temporary safety zone is necessary to ensure safety of life prior
to, during, and after the Red Bull Flugtag event. With the
aforementioned hazards in mind, the Captain of the Port, Sector Lake
Michigan, has determined that this temporary safety zone is necessary
to ensure the safety of spectators and vessels during the Red Bull
Flugtag event. This zone will be effective and enforced from 11 a.m. to
5 p.m. (local) on September 8, 2012. The safety zone will encompass all
waters of Lake Michigan, in the vicinity of North Avenue Beach,
Chicago, IL, beginning at 41[deg]54'37'' N, 087[deg]37'33'' W; then
north east to 41[deg]54'53'' N, 087[deg]37'12'' W; then south east to
41[deg]54'49'' N, 087[deg]37'08''; W; then south west to 41[deg]54'34''
N, 087[deg]37'29'' W; then back to the point of origin (NAD 83).
    Entry into, transiting, or anchoring within the safety zone is
prohibited unless authorized by the Captain of the Port, Sector Lake
Michigan, or his designated on-scene representative. The Captain of the
Port or his designated on-scene representative may be contacted via VHF
Channel 16.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on numerous statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. It is not
``significant'' under the regulatory policies and procedures of the
Department of Homeland Security (DHS). We conclude that this rule is
not a significant regulatory action because we anticipate that it will
have minimal impact on the economy, will not interfere with other
agencies, will not adversely alter the budget of any grant or loan
recipients, and will not raise any novel legal or policy issues. The
safety zone created by this rule will be relatively small and enforced
for a relatively short time. Also, the safety zone is designed to
minimize its impact on navigable waters. Furthermore, the safety zone
has been designed to allow vessels to transit around it. Thus,
restrictions on vessel movement within that particular area are
expected to be minimal. Under certain conditions, moreover, vessels may
still transit

through the safety zone when permitted by the Captain of the Port.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
    This rule will affect the following entities, some of which might
be small entities: The owners or operators of vessels intending to
transit or anchor in a portion of Lake Michigan, Chicago, IL on
September 8, 2012.
    This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: This
safety zone would be activated, and thus subject to enforcement, for
only six hours on September 8, 2012. Traffic may be allowed to pass
through the zone with the permission of the Captain of the Port. The
Captain of the Port can be reached via VHF channel 16. Before the
activation of the zone, we would issue local Broadcast Notice to
Mariners.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has 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. We have analyzed this rule under that Order and determined
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INTFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves the establishment of a safety zone and,
therefore it is categorically excluded from further review under
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An
environmental analysis checklist supporting this determination and a
Categorical Exclusion Determination are available in the docket where
indicated under ADDRESSES. We seek any comments or information that may
lead to the discovery of a significant environmental impact from this
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR parts 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.

0
2. Add Sec.  165.T09-0817 to read as follows:

Sec.  165.T09-0817  Safety Zone; Chicago Red Bull Flugtag, Lake
Michigan, Chicago, IL.

    (a) Location. The safety zone will encompass all waters of Lake
Michigan, in the vicinity of North Avenue Beach, Chicago IL, beginning
at 41[deg]54'37'' N, 087[deg]37'33'' W; then north east to
41[deg]54'53'' N, 087[deg]37'12'' W; then south east to 41[deg]54'49''
N, 087[deg]37'08'' W; then south west to 41[deg]54'34'' N,
087[deg]37'29'' W; then back to the point of origin (NAD 83).
    (b) Effective and enforcement period. This regulation is effective
and will be enforced on September 8, 2012 from 11:00 a.m. until 5:00
p.m.
    (c) Regulations. (1) In accordance with the general regulations in
section 165.23 of this part, entry into, transiting, or anchoring
within this safety zone is prohibited unless authorized by the Captain
of the Port, Sector Lake Michigan or his designated on-scene
representative.
    (2) This safety zone is closed to all vessel traffic, except as may
be permitted by the Captain of the Port, Sector Lake Michigan or his
designated on-scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port,
Sector Lake Michigan is any Coast Guard commissioned, warrant or petty
officer who has been designated by the Captain of the Port, Sector Lake
Michigan to act on his behalf.
    (4) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port, Sector Lake Michigan or his
on-scene representative to obtain permission to do so. The Captain of
the Port, Sector Lake Michigan or his on-scene representative may be
contacted via VHF Channel 16. Vessel operators given permission to
enter or operate in the safety zone must comply with all directions
given to them by the Captain of the Port, Sector Lake Michigan, or his
on-scene representative.

    Dated: August 21, 2012.
J.W. Davenport,
Commander, U.S. Coast Guard, Acting Captain of the Port, Sector Lake
Michigan.
[FR Doc. 2012-22198 Filed 9-5-12; 4:15 pm]
BILLING CODE 9110-04-P


[Federal Register Volume 81, Number 35 (Tuesday, February 23, 2016)]
[Notices]
[Page 8954]
[FR Doc No: 2016-03621]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 14728-000]

Pyramid Lake Paiute Tribe; Notice of Preliminary Permit
Application Accepted for Filing and Soliciting Comments, Motions To
Intervene, and Competing Applications

    On November 3, 2015, the Pyramid Lake Paiute Tribe filed an
application for a preliminary permit, pursuant to section 4(f) of the
Federal Power Act (FPA), proposing to study the feasibility of the Boca
Hydroelectric Project (Boca Hydroelectric Project or project) to be
located on the Bureau of Reclamation's Boca Dam on the Little Truckee
River, near the town of Truckee, Nevada County, California. The sole
purpose of a preliminary permit, if issued, is to grant the permit
holder priority to file a license application during the permit term. A
preliminary permit does not authorize the permit holder to perform any
land-disturbing activities or otherwise enter upon lands or waters
owned by others without the owners' express permission.
    Boca Reservoir has a usable storage capacity of 40,900 acre-feet at
the normal maximum elevation of 5,601 feet. The proposed project would
utilize the existing intake structure in Boca Reservoir and the two
375-foot long, 50-inch steel conduits. The existing 50-inch primary
outlet pipes would be modified to remove the existing 42-inch hollow
jet valves and to add bifurcations that would connect to the proposed
new penstocks.
    The proposed project would also consist of the following new
facilities: (1) Two new penstocks that connect the existing 50-inch
primary outlet pipes to a new 60-inch-diameter penstock via isolation
valves to allow flow to be conveyed to the powerhouse from either or
both outlet pipes; (2) a 45-foot-long by 45-foot-wide by 40-foot-high
powerhouse containing a single Kaplan generating unit rated for 1.6
megawatts at 60 feet of head; (3) a 20 to 40-foot-long tailrace channel
that discharges water downstream of the existing outlet channel walls
approximately 140 feet from the existing hollow jet valves; (4) a
channel training wall consisting of either a sheet pile tied-back
channel wall or a concrete cantilever type wall leaving the powerhouse
on the landside of the tailrace channel; (5) a step-up transformer
installed at the powerhouse generator in order to wheel power onto the
grid; (6) a new 700-foot long 12-kilovolt (kV) transmission line to
interconnect to an existing 12-kV transmission line owned by Liberty
Utilities (the point of interconnection); and (7) appurtenant
facilities.
    The Pyramid Lake Paiute Tribe proposes to develop the proposed
project in conformance with the operation of Boca Dam by the Bureau of
Reclamation under the terms of the Truckee River Operating Agreement
(TROA) and would generate electricity using the existing flow releases
under the terms of the TROA. The Pyramid Lake Paiute Tribe does not
propose to alter the timing, condition or the amount of releases from
Boca Reservoir or impair any of the current functions supported by
operation of this existing multi-purpose water resources project. The
estimated annual generation of the Boca Hydroelectric Project would be
3.5 gigawatt-hours.
    Applicant Contact: Ms. Donna Noel, Director of Natural Resources,
Pyramid Lake Paiute Tribe, P.O. Box 256, Nixon, Nevada 89424; phone:
(775) 574-1000.
    FERC Contact: Kyle Olcott; phone:<PHONE_NUMBER>.
    Deadline for filing comments, motions to intervene, competing
applications (without notices of intent), or notices of intent to file
competing applications: 60 days from the issuance of this notice.
Competing applications and notices of intent must meet the requirements
of 18 CFR 4.36.
    The Commission strongly encourages electronic filing. Please file
comments, motions to intervene, notices of intent, and competing
applications using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief
comments up to 6,000 characters, without prior registration, using the
eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You
must include your name and contact information at the end of your
comments. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>(866) 208-3676 (toll free), or (202) 502-
8659 (TTY). In lieu of electronic filing, please send a paper copy to:
Secretary, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426. The first page of any filing should include
docket number P-14728-000.
    More information about this project, including a copy of the
application, can be viewed or printed on the ``eLibrary'' link of
Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp.
Enter the docket number (P-14728) in the docket number field to access
the document. For assistance, contact FERC Online Support.

    Dated: February 12, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2016-03621 Filed 2-22-16; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: January 14, 2010 (Volume 75, Number 9)]
[Notices]
[Page 2131-2132]
[DOCID:fr14ja10-47]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP10-33-000]

CenterPoint Energy Gas Transmission Company; Notice of
Application

January 6, 2010.
    Take notice that on December 18, 2009, CenterPoint Energy Gas
Transmission Company (CEGT), 1111 Louisiana Street, Houston, Texas
77002-5231, filed with the Commission an application under Section 7(b)
of the Natural Gas Act (NGA) for authorization to abandon by sale to
ScissorTail Energy, LLC (ScissorTail) CEGT's Shawnee Compressor Station
facilities and dehydrator located in Pittsburg County, Oklahoma. In
conjunction with the abandonment, CEGT seeks determination that the
facilities, once conveyed to ScissorTail, will be gathering facilities
exempt from the Commission's jurisdiction under NGA section 1(b). This
filing is available for review at the Commission in the Public
Reference Room or may be viewed on the Commission's Web site at http://
www.ferc.gov using the ``eLibrary'' link. Enter the docket number
excluding the last three digits in the docket number field to access
the document. For assistance, contact FERC at
<EMAIL_ADDRESS>or call toll-free,<PHONE_NUMBER> or TTY,
(202) 502-8659.

    Any questions regarding the petition should be directed to B.
Michelle Willis, Manager--Regulatory & Compliance, CenterPoint Energy
Gas Transmission Company, P.O. Box 21734, Shreveport, Louisiana 71151
at<PHONE_NUMBER>.
    There are two ways to become involved in the Commission's review of
this project. First, any person wishing to obtain legal status by
becoming a party to the proceedings for this project should, on or
before the comment date stated below file with the Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a
motion to intervene in accordance with the requirements of the
Commission's Rules of Practice and Procedure (18 CFR 385.214 or
385.211) and the Regulations under the NGA (18 CFR 157.10). A person
obtaining party status will be placed on the service list maintained by
the Secretary of the Commission and will receive copies of all
documents filed by the applicant and by all other parties. A party must
submit 14 copies of filings made in the proceeding with the Commission
and must mail a copy to the applicant and to every other party. Only
parties to the proceeding can ask for court review of Commission orders
in the proceeding.
    However, a person does not have to intervene in order to have
comments considered. The second way to participate is by filing with
the Secretary of the Commission, as soon as possible, an original and
two copies of comments in support of or in opposition to this project.
The Commission will consider these comments in determining the
appropriate action to be taken, but the filing of a comment alone will
not serve to make the filer a party to the proceeding. The Commission's
rules require that persons filing comments in opposition to the project
provide copies of their protests only to the party or parties directly
involved in the protest.
    The Commission strongly encourages electronic filings of comments,
protests and interventions in lieu of paper using the ``eFiling'' link
at http://www.ferc.gov. Persons unable to file electronically should
submit an original and 14 copies of the protest or intervention to the
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: January 27, 2010.

Kimberly D. Bose,
Secretary.
[FR Doc. 2010-517 Filed 1-13-10; 8:45 am]
BILLING CODE 6717-01-P


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES Date: September 21, 2004 Subject: Clarification of the Trifluralin Drinking Water Assessment for the Health Effects Division ( HED) Tolerance Reassessment ( PC Code: 036101) and characterization on relative differences of USGS NAWQA ground water monitoring data and its comparison to SCI GROW model predictions as presented in the NRDC objection ( Imidacloprid FR) and the trifluralin TRED ( D308490)

To: Richard Griffin, Risk Assessor Reregistration Branch I Health Effects Division ( 7509C)

John Pates, Chemical Review Manager Laura Parsons, Chemical Team Leader Susan Lewis, Branch Chief Reregistration Branch II Special Review and Reregistration Division ( 7508C)

From: Michael Barrett, Ph. D. Senior Chemist James Hetrick, Ph. D. Senior Physical Scientist Environmental Fate and Effects Division ( 7507C)

Approved By: Sid Abel, Branch Chief Mah Shamim, Ph. D. Branch Chief Environmental Fate and Effects Division ( 7507C)

This memorandum provides clarification and characterization on the relative difference in USGS NAWQA ground water monitoring data for trifluralin and its comparison to SCI GROW model predictions as presented in the NRDC objection ( Imidacloprid Order Denying Objections to Issuance of Tolerance, Federal Register Notice OPP 2004 152; FRL 7355 7; hereafter referred to as the Imidacloprid FR) and the trifluralin TRED. In the TRED, SCI GROW model predictions are lower than the maximum reported trifluralin concentration in the USGS NAWQA groundwater monitoring data. In contrast, the SCI GROW model performance assessment in the Imidacloprid FR indicates the trifluralin concentration in groundwater, as predicted by SCI GROW , is greater than the 99.8 percentile concentration from the NAWQA groundwater monitoring data. The relative difference of the SCI GROW estimates and its comparison to monitoring data can be explained by the use of different percentile concentrations as well as use of different trifluralin application rates. SCI GROW modeling in the TRED was conducted using an application rate of 4 lbs ai/ A ( maximum application rate for sugarcane on the CORNBELT LABEL, EPA Reg. No. 11773 17), median Koc of 7384 L kg oc 1 ( MRID 40673501), average aerobic soil half life of 168.7 days ( MRID 41240501), and application interval of 180 days. In contrast, the model performance assessment of SCI GROW was conducted using similar environmental fate parameters and an application rate of only 2 lbs ai/ A. Predicted groundwater concentrations of trifluralin were 0.0346 ug/ L and ~ 0.015 ug/ L for the TRED and model performance assessment, respectively. These differences are not unexpected because the SCI GROW model predictions are linearly dependent on application rate when all other fate data are similar.

The USGS NAWQA ground water monitoring in the TRED were obtained from the NAWQA data warehouse on August 12, 2003 ( http:// water. usgs. gov/ nawqa/ data). These data represent NAWQA groundwater monitoring data as of September 30, 2002. In contrast, the SCI GROW model performance assessment was conducted using June 11, 2001 data ( covering samples collected up to about one to two years to the date the analytical results were compiled). It is important to note the NAWQA data warehouse is not a static data set because it is being updated at regular intervals. Therefore, the data set available for any compound is dependent on the time of data retrieval.

Additional characterization of the USGS NAWQA ground water monitoring data in the TRED is required for equal comparison with the SCI GROW model performance assessment. In the TRED, the SCI GROW estimate is compared to the maximum value ( 100 percentile) in the monitoring data. Since no risk concerns were identified even with exposure to the maximum observed concentration of trifluralin, no additional comparisons to the monitoring data was conducted, including the examination of the frequency distribution of trifluralin residues in ground water.

Unlike the trifluralin TRED drinking water assessment, the SCI GROW model performance assessment for the Imidacloprid FR was conducted using the 99.8 percentile concentration. This percentile was selected because:

1. Due to sample size limitations of some studies, it is the highest percentile concentration used to develop the SCI GROW regression model. 2. Some individual observation wells may be positioned in a way that leaching from normal field application of pesticides may result in higher levels of contamination than occur in the ground water actually used for drinking water in the study area.

Further characterization of the USGS NAWQA groundwater monitoring data used in the TRED indicates the 99.8 percentile concentration is 0.012 ug/ L. The distribution is highly skewed because 99.5% of the data ( 10,034 samples from 10,083 samples) were non detections. These data show the SCI GROW estimate is greater than the 99.8 percentile concentration in the USGS NAWQA groundwater monitoring data. A similar observation was made with the earlier NAWQA data set used in the SCI GROW model performance assessment supporting the imidacloprid FR.


[Federal Register: June 28, 2011 (Volume 76, Number 124)]
[Notices]
[Page 37857-37863]
[DOCID:fr28jn11-113]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29706; 812-13815]

Russell Exchange Traded Funds Trust, et al.; Notice of
Application

June 22, 2011.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from sections
2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the
Act, under sections 6(c) and 17(b) of the Act for an exemption from
sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J)
of the Act for an exemption from sections 12(d)(1)(A) and (B) of the
Act.

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APPLICANTS: Russell Exchange Traded Funds Trust (formerly, U.S. One
Trust, the ``Trust''), Russell Investment Management Company
(``Advisor''), and ALPS Distributors, Inc. (``ALPS'').

SUMMARY OF APPLICATION: Applicants request an order that permits: (a)
Series of certain open-end management investment companies to issue
shares (``Shares'') redeemable in large aggregations only (``Creation
Units''); (b) secondary market transactions in Shares to occur at
negotiated market prices; (c) certain series to pay redemption
proceeds, under certain circumstances, more than seven days from the
tender of Shares for redemption; (d) certain affiliated persons of the
series to deposit securities into, and receive securities from, the
series in connection with the purchase and redemption of Creation
Units; and (e) certain registered management investment companies and
unit investment trusts outside of the same group of investment
companies as the series to acquire Shares.

DATES: Filing Dates: The application was filed on August 18, 2010, and
amended on December 21, 2010, April 15, 2011, and May 19, 2011.

HEARING OR NOTIFICATION OF HEARING: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on July 18, 2011, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090. Applicants: The Advisor and the
Trust, 1301 Second Avenue, 18th Floor, Seattle, WA 98101; ALPS, 1290
Broadway, Suite 1100, Denver, CO 80203.

FOR FURTHER INFORMATION CONTACT: Barbara T. Heussler, Senior Counsel,
at<PHONE_NUMBER> or Jennifer L. Sawin, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

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

Applicants' Representations

    1. The Trust, a statutory trust established under the laws of
Delaware, is registered with the Commission as an open-end management
investment company. The Applicants are requesting relief with respect
to future series of the Trust or of other open-end management
investment companies that may be created in the future (individually, a
``Fund'' and collectively, the ``Funds'').\1\ Each Fund will have
distinct investment strategies that are different than those of the
other Funds, and each Fund will attempt to achieve its investment
objective by utilizing an ``active'' management strategy based on
investment in individual equity and debt securities.\2\ Funds may
invest in equity securities or fixed income securities traded in the
U.S. or non-U.S. markets or a combination of equity and fixed income
securities, including depositary receipts (``Depositary

Receipts'').\3\ It is anticipated that the initial Fund will be a
domestic equity fund whose investment objective is to seek long-term
capital growth. The Funds will not invest in options contracts, futures
contracts or swap agreements.
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    \1\ All entities that currently intend to rely on the order are
named as Applicants. Any other entity that relies on the order in
the future will comply with the terms and conditions of the
application. An Acquiring Fund (as defined below) may rely on the
requested order only to invest in the Funds and not in any other
registered investment company.
    \2\ Each Fund will comply with the disclosure requirements
adopted by the Commission in Investment Company Act Release No.
28584 (Jan. 13, 2009), as well as any other applicable disclosure
requirements, before offering Shares.
    \3\ Depositary Receipts include American Depositary Receipts
(``ADRs'') and Global Depositary Receipts (``GDRs''). With respect
to ADRs, the depository is typically a U.S. financial institution
and the underlying securities are issued by a foreign issuer. The
ADR is registered under the Securities Act of 1933 (``Securities
Act'') on Form F-6. ADR trades occur either on a national securities
exchange or off-exchange. Financial Industry Regulatory Authority
(``FINRA'') Rule 6620 requires all off-exchange transactions in ADRs
to be reported within 90 seconds and ADR trade reports to be
disseminated on a real-time basis. With respect to GDRs, the
depository may be a foreign or a U.S. entity, and the underlying
securities may have a foreign or a U.S. issuer. All GDRs are
sponsored and trade on a foreign exchange. A Fund will not invest in
any Depositary Receipts that the Advisor or any Sub-Advisor deems to
be illiquid or for which pricing information is not readily
available. No affiliated persons of Applicants will serve as the
depository for any Depositary Receipts held by a Fund.
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    2. Each Fund will (a) be advised by the Advisor or an entity
controlling, controlled by or under common control with the Advisor
(``Advisor Affiliate'') and (b) comply with the terms and conditions
stated in the application. The Advisor or an Advisor Affiliate will be
the investment adviser to each Fund and will be able to appoint
subadvisers (``Sub-Advisors'') to the Fund. The Advisor is a Washington
corporation, and is registered as an investment adviser under section
203 of the Investment Advisers Act of 1940 (the ``Advisers Act''). Any
investment adviser or Sub-Advisor to a Fund will be registered under
the Advisers Act.
    3. A broker-dealer registered under the Securities Exchange Act of
1934 (``Exchange Act'') will be the principal underwriter and
distributor of the Creation Units of Shares of the Funds (the
``Distributor''). The Distributor will not be affiliated with any
Listing Market. ALPS is the principal underwriter and distributor of
the shares of the one existing series of the Trust. ALPS is expected to
be the principal underwriter and distributor of Shares of the Funds.
    4. Applicants anticipate that the price of a Share will range from
$20 to $200, and that Creation Units will consist of 25,000 or more
Shares. All orders to purchase Creation Units must be placed with the
Distributor by or through an ``Authorized Participant,'' which is a
participant in the Depository Trust Company (``DTC,'' and such
participants ``DTC Participants'') that has executed a ``Participant
Agreement'' with the Distributor. Persons purchasing Creation Units
from a Fund must make an in-kind tender of shares of specified
securities (``Deposit Securities'') together with an amount of cash
specified by the Advisor (the ``Cash Amount''), plus the applicable
Transaction Fee, as defined below. The Deposit Securities and the Cash
Amount collectively are referred to as the ``Creation Deposit.'' The
Cash Amount is equal to the difference between the net asset value
(``NAV'') of a Creation Unit and the market value of the Deposit
Securities.\4\ The Trust may also permit, in its discretion and with
respect to one or more Funds, under certain circumstances, an in-kind
purchaser to substitute cash in lieu of depositing some or all of the
requisite Deposit Securities.
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    \4\ On each day that the Trust is open, including as required by
section 22(e) of the Act (``Business Day''), the Advisor will make
available prior to the opening of trading on the Listing Market (as
defined below), the list of the names and the required number of
shares of each Deposit Security to be included in the Creation
Deposit for each Fund, along with the prior day's Cash Amount. The
national securities exchange, as defined in section 2(a)(26) of the
Act, on which the Shares are listed (a ``Listing Market'') will
disseminate, every 15 seconds during the Listing Market's regular
trading hours, through the facilities of the Consolidated Tape
Association, the estimated NAV per Share, which is an amount per
Share representing the sum of the estimated Cash Amount effective
through and including the previous Business Day, plus the current
value of the Deposit Securities, on a per Share basis.
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    5. An investor purchasing or redeeming a Creation Unit will be
charged a fee (``Transaction Fee'') to protect existing shareholders of
the Funds from the dilutive costs associated with the purchase and
redemption of Creation Units.\5\ The Distributor will deliver a
confirmation and Fund prospectus (``Prospectus'') to the purchaser. In
addition, the Distributor will maintain a record of the instructions
given to the Trust to implement the delivery of Shares.
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    \5\ Where a Fund permits an in-kind purchaser to deposit cash in
lieu of depositing a one or more Deposit Securities, the purchaser
may be assessed a higher Transaction Fee to offset the cost to the
Fund of buying those particular Deposit Securities.
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    6. Purchasers of Shares in Creation Units may hold such Shares or
may sell such Shares into the secondary market. Shares will be listed
on the Listing Market and traded in the secondary market in the same
manner as other equity securities. It is expected that one or more
member firms will be designated to maintain a market for the Shares on
the Listing Market.\6\ The price of Shares trading on the secondary
market will be based on a current bid-offer market. Transactions
involving the sale of Shares on the Listing Market will be subject to
customary brokerage commissions and charges.
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    \6\ If Shares are listed on Nasdaq or a similar electronic
Listing Market (including NYSE Arca), one or more member firms of
that Listing Market will act as market maker (``Market Maker'') and
maintain a market for Shares trading on the Listing Market. On
Nasdaq, no particular Market Maker would be contractually obligated
to make a market in Shares. However, the listing requirements on
Nasdaq, for example, stipulate that at least two Market Makers must
be registered in Shares to maintain a listing. In addition, on
Nasdaq and NYSE Arca, registered Market Makers are required to make
a continuous two-sided market or subject themselves to regulatory
sanctions. No Market Maker will be an affiliated person, or an
affiliated person of an affiliated person, of the Funds, except
within section 2(a)(3)(A) or (C) of the Act due to ownership of
Shares.
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    7. Applicants expect that purchasers of Creation Units will include
institutional investors and arbitrageurs (which could include
institutional investors). Applicants expect that secondary market
purchasers of Shares will include both institutional investors and
retail investors.\7\ Applicants state that the price at which Shares
trade will be disciplined by arbitrage opportunities created by the
ability to purchase or redeem Creation Units at NAV, which should
ensure that Shares will not trade at a material premium or discount in
relation to NAV per Share.
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    \7\ Shares will be registered in book-entry form only. DTC or
its nominee will be the registered owner of all outstanding Shares.
DTC or DTC Participants will maintain records reflecting owners of
Shares (``Beneficial Owners'').
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    8. Shares may be redeemed only if tendered in Creation Units.
Redemption requests must be placed by or through an Authorized
Participant. Shares in Creation Units will be redeemable in exchange
for a basket of securities (``Redemption Securities'') that will be the
same as the Deposit Securities required of investors purchasing
Creation Units on the same day, except to the extent an investor is
permitted to substitute cash-in-lieu of Deposit Securities or
Redemption Securities (or as provided below).\8\ Depending on whether
the NAV of a Creation Unit is higher or lower than the market value of
the Redemption Securities, the redeemer of a Creation Unit will either
receive from or pay to the Fund a Cash Amount.
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    \8\ Funds that invest in fixed income securities (``Fixed Income
Funds'') may substitute a cash-in-lieu amount to replace any Deposit
Security or Redemption Security that is a to-be-announced
transaction (``TBA Transaction''). A TBA Transaction is a method of
trading mortgage-backed securities. In a TBA Transaction, the buyer
and seller agree upon general trade parameters such as agency,
settlement date, par amount and price. The actual pools delivered
generally are determined two days prior to the settlement date. The
amount of substituted cash in the case of TBA Transactions will be
equivalent to the value of the TBA Transaction listed as a Deposit
Security or Redemption Security.

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    9. Applicants state that the Funds must comply with the Federal
securities laws in accepting Deposit Securities and satisfying
redemptions with Redemption Securities, including that the Deposit
Securities and Redemption Securities are sold in transactions that
would be exempt from registration under the Securities Act.\9\ For each
Fund utilizing an in-kind process, the Deposit Securities and
Redemption Securities will correspond pro rata to the Fund's portfolio
(``Portfolio Securities'').\10\
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    \9\ In accepting Deposit Securities and satisfying redemptions
with Redemption Securities that are restricted securities eligible
for resale pursuant to rule 144A under the Securities Act, the
relevant Funds will comply with the conditions of rule 144A,
including in satisfying redemptions with such rule 144A eligible
restricted Redemption Securities.
    \10\ There may be minor differences between a basket of Deposit
Securities or Redemption Securities and a true pro rata slice of a
Fund's portfolio solely when (A) it is impossible to break up bonds
beyond certain minimum sizes needed for transfer and settlement or,
(B) in the case of equity securities, rounding is necessary to
eliminate fractional shares or lots that are not tradeable round
lots. A tradeable round lot for an equity security will be the
standard unit of trading in that particular type of security in its
primary market.
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    10. The Trust will not be advertised or marketed or otherwise held
out as a traditional open-end investment company or a mutual fund.
Instead, each Fund will be marketed as an ``actively-managed exchange-
traded fund.'' All marketing materials that describe the features or
method of obtaining, buying or selling Creation Units, or Shares traded
on the Listing Market, or refer to redeemability, will prominently
disclose that Shares are not individually redeemable shares and will
disclose that the owners of Shares may acquire those Shares from the
Fund, or tender those Shares for redemption to the Fund in Creation
Units only.
    11. The Trust (or the Listing Market) intends to maintain a Web
site that will include each Fund's Prospectus, statement of additional
information (``SAI''), and summary prospectus, if used, and additional
quantitative information that is updated on a daily basis, including,
for each Fund, the prior Business Day's NAV per Share and the market
closing price or mid-point of the bid/ask spread at the time of
calculation of such NAV per Share (the ``Bid/Ask Price''), and a
calculation of the premium or discount of the market closing price or
Bid/Ask Price against such NAV per Share. On each Business Day, before
commencement of trading in Shares on a Fund's Listing Market, the Fund
will disclose on its Web site the identities and quantities of the
Portfolio Securities and other assets held by the Fund that will form
the basis for the Fund's calculation of NAV per Share at the end of the
Business Day.\11\
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    \11\ Under accounting procedures followed by the Funds, trades
made on the prior Business Day (``T'') will be booked and reflected
in NAV on the current Business Day (``T+1''). Accordingly, the Funds
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.
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Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an
exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act
and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act
for an exemption from sections 17(a)(1) and (a)(2) of the Act, and
under section 12(d)(1)(J) of the Act for an exemption from sections
12(d)(1)(A) and 12(d)(1)(B) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt
any person, security or transaction, or any class of persons,
securities or transactions, from any provision of the Act, if and to
the extent that such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Section 17(b) of the Act authorizes the Commission to exempt a proposed
transaction from section 17(a) of the Act if evidence establishes that
the terms of the proposed transaction, including the consideration to
be paid or received, are reasonable and fair and do not involve
overreaching on the part of any person concerned, and the proposed
transaction is consistent with the policies of the registered
investment company and the general provisions of the Act. Section
12(d)(1)(J) of the Act provides that the Commission may exempt any
person, security, or transaction, or any class or classes of persons,
securities or transactions, from any provision of section 12(d)(1) if
the exemption is consistent with the public interest and the protection
of investors.

Sections 5(a)(1) and 2(a)(32) of the Act

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a
management investment company that is offering for sale or has
outstanding any redeemable security of which it is the issuer. Section
2(a)(32) of the Act defines a redeemable security as any security,
other than short-term paper, under the terms of which the holder, upon
its presentation to the issuer, is entitled to receive approximately a
proportionate share of the issuer's current net assets, or the cash
equivalent. Applicants request an order to permit the Trust to register
as an open-end management investment company and issue Shares that are
redeemable in Creation Units only. Applicants state that each investor
is entitled to purchase or redeem Creation Units rather than trade the
individual Shares in the secondary market. Applicants further state
that because of the arbitrage possibilities created by the
redeemability of Creation Units, it is expected that the market price
of an individual Share will not vary much from its NAV per Share.

Section 22(d) of the Act and Rule 22c-1 Under the Act

    4. Section 22(d) of the Act, among other things, prohibits a dealer
from selling a redeemable security, which is currently being offered to
the public by or through a principal underwriter, except at a current
public offering price described in the prospectus. Rule 22c-1 under the
Act generally requires that a dealer selling, redeeming, or
repurchasing a redeemable security do so only at a price based on its
NAV. Applicants state that secondary market trading in Shares will take
place at negotiated prices, rather than at the current offering price
described in the Fund's Prospectus. Thus, purchases and sales of Shares
in the secondary market will not comply with section 22(d) of the Act
and rule 22c-1 under the Act. Applicants request an exemption under
section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by
section 22(d) of the Act and rule 22c-1 under the Act with respect to
pricing are equally satisfied by the proposed method of pricing Shares.
Applicants maintain that while there is little legislative history
regarding section 22(d), its provisions, as well as those of rule 22c-
1, appear to have been intended (a) to prevent dilution caused by
certain riskless-trading schemes by principal underwriters and contract
dealers, (b) to prevent unjust discrimination or preferential treatment
among buyers, and (c) to ensure an orderly distribution system of
shares by contract dealers by eliminating price competition from non-
contract dealers who could offer investors shares at less than the
published sales price and who could pay investors a little more than
the published redemption price.
    6. Applicants state that (a) Secondary market transactions in
Shares would not cause dilution for owners of such Shares because such
transactions do not directly involve Fund assets, and (b) to the extent
different prices exist during a given trading day, or from day to day,
such variances occur as a result of third-party market forces, such as
supply and

demand. Therefore, applicants assert that secondary market transactions
in Shares will not lead to discrimination or preferential treatment
among purchasers. Finally, applicants contend that the proposed
distribution system will be orderly because arbitrage activity will
ensure that the difference between the market price of Shares and their
NAV remains narrow.

Section 22(e)

    7. Section 22(e) of the Act generally prohibits a registered
investment company from suspending the right of redemption or
postponing the date of payment of redemption proceeds for more than
seven days after the tender of a security for redemption. Applicants
observe that the settlement of redemptions of Creation Units of Funds
that invest solely in foreign equity and/or fixed income securities
(``Foreign Funds'') and Funds that invest in foreign and domestic
equity and/or fixed income securities (``Global Funds'') is contingent
not only on the settlement cycle of the U.S. securities markets but
also on the delivery cycles present in foreign markets in which those
Funds invest. Applicants have been advised that, under certain
circumstances, the delivery cycles for transferring Portfolio
Securities to redeeming investors, coupled with local market holiday
schedules, will require a delivery process of up to 14 calendar days.
Applicants therefore request relief from section 22(e) in order to
provide payment or satisfaction of redemptions within the maximum
number of calendar days required for such payment or satisfaction in
the principal local markets where transactions in the Portfolio
Securities of each Foreign Fund or Global Fund customarily clear and
settle, but in all cases no later than 14 days following the tender of
a Creation Unit.\12\ With respect to Funds that are Foreign Funds or
Global Funds, applicants seek the relief from section 22(e) only to the
extent that circumstances exist similar to those described in the
application.
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    \12\ Applicants acknowledge that no relief obtained from the
requirements of section 22(e) will affect any obligations that it
may otherwise have under rule 15c6-1 under the Exchange Act. Rule
15c6-1 requires that most securities transactions be settled within
three business days of the trade date.
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    8. Applicants submit that Congress adopted section 22(e) to prevent
unreasonable, undisclosed or unforeseen delays in the actual payment of
redemption proceeds. Applicants state that allowing redemption payments
for Creation Units of a Fund to be made within 14 calendar days would
not be inconsistent with the spirit and intent of section 22(e).
Applicants state the SAI will disclose those local holidays (over the
period of at least one year following the date of the SAI), if any,
that are expected to prevent the delivery of redemption proceeds in
seven calendar days and the maximum number of days, up to 14 calendar
days, needed to deliver the proceeds for each affected Foreign Fund or
Global Fund. Applicants are not seeking relief from section 22(e) with
respect to Foreign Funds and Global Funds that do not effect creations
or redemptions in-kind.

Section 12(d)(1)

    9. Section 12(d)(1)(A) of the Act prohibits a registered investment
company from acquiring shares of an investment company if the
securities represent more than 3% of the total outstanding voting stock
of the acquired company, more than 5% of the total assets of the
acquiring company, or, together with the securities of any other
investment companies, more than 10% of the total assets of the
acquiring company. Section 12(d)(1)(B) of the Act prohibits a
registered open-end investment company, its principal underwriter, or
any other broker or dealer from selling its shares to another
investment company if the sale will cause the acquiring company to own
more than 3% of the acquired company's voting stock, or if the sale
will cause more than 10% of the acquired company's voting stock to be
owned by investment companies generally.
    10. Applicants request that the order permit registered management
investment companies and unit investment trusts (``UITs'') that are not
advised or sponsored by the Advisor or an entity controlling,
controlled by or under common control with the Advisor, and not part of
the same ``group of investment companies'' as defined in section
12(d)(l)(G)(ii) of the Act as the Funds, to acquire Shares beyond the
limits of section 12(d)(l)(A) of the Act (such management companies,
``Acquiring Management Companies,'' such UITs, ``Acquiring Trusts,''
and Acquiring Management Companies and Acquiring Trusts collectively,
``Acquiring Funds''). The requested exemptions would also permit each
Fund, its principal underwriter and any broker or dealer registered
under the Exchange Act to sell Shares to an Acquiring Fund beyond the
limits of section 12(d)(l)(B).
    11. Each investment adviser to an Acquiring Management Company
within the meaning of section 2(a)(20)(A) of the Act (``Acquiring Fund
Advisor'') will be registered as an investment adviser under the
Advisers Act. No Acquiring Fund Advisor or sponsor of an Acquiring
Trust (``Sponsor'') will control, be controlled by or be under common
control with the Advisor. Each Acquiring Management Company may also
have one or more investment advisers within the meaning of section
2(a)(20)(B) of the Act (each, an ``Acquiring Fund Sub-Advisor''). Any
Acquiring Fund Sub-Advisor will be registered under the Advisers Act.
No Acquiring Fund will be in the same group of investment companies as
the Funds. Pursuant to the terms and conditions of the requested order,
each Acquiring Fund will enter into an Acquiring Fund Agreement, as
defined below, with the relevant Fund(s).
    12. Applicants assert that the proposed transactions will not lead
to any of the abuses that section 12(d)(1) was designed to prevent.
Applicants submit that the proposed conditions to the requested relief
address the concerns underlying the limits in section 12(d)(1), which
include concerns about undue influence, excessive layering of fees and
overly complex structures.
    13. Applicants submit that their proposed conditions address any
concerns regarding the potential for undue influence. An Acquiring Fund
or Acquiring Fund Affiliate \13\ will not cause any existing or
potential investment in a Fund to influence the terms of any services
or transactions between the Acquiring Fund or an Acquiring Fund
Affiliate and the Fund or a Fund Affiliate.\14\ No Acquiring Fund's
Advisory Group or member of it, nor any Acquiring Fund's Sub-Advisory
Group or any member of it will control a Fund within the meaning of
section 2(a)(9) of the Act. An ``Acquiring Fund's Advisory Group'' is
the Acquiring Fund Advisor, Sponsor, any person controlling, controlled
by or under common control with the Acquiring Fund Advisor or Sponsor,
and any investment company or issuer that would be an investment
company but for section 3(c)(l) or 3(c)(7) of the Act, that is advised
or sponsored by the Acquiring Fund Advisor, Sponsor or any person
controlling, controlled by or under common control with the

Acquiring Fund Advisor or Sponsor. An ``Acquiring Fund's Sub-Advisory
Group'' is any Acquiring Fund Sub-Advisor, any person controlling,
controlled by, or under common control with the Acquiring Fund Sub-
Advisor, and any investment company or issuer that would be an
investment company but for section 3(c)(l) or 3(c)(7) of the Act (or
portion of such investment company or issuer) advised or sponsored by
the Acquiring Fund Sub-Advisor or any person controlling, controlled by
or under common control with the Acquiring Fund Sub-Advisor.
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    \13\ An ``Acquiring Fund Affiliate'' is defined as the Acquiring
Fund Advisor, Acquiring Fund Sub-Advisor(s), any Sponsor, promoter
or principal underwriter of an Acquiring Fund and any person
controlling, controlled by or under common control with any of these
entities.
    \14\ A ``Fund Affiliate'' is defined as an investment adviser,
promoter or principal underwriter of a Fund and any person
controlling, controlled by or under common control with any of these
entities.
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    14. Applicants also propose a condition to ensure that no Acquiring
Fund or Acquiring Fund Affiliate will cause a Fund to purchase a
security from an Affiliated Underwriting. An ``Affiliated
Underwriting'' is an offering of securities during the existence of an
underwriting or selling syndicate of which a principal underwriter is
an Underwriting Affiliate. An ``Underwriting Affiliate'' is a principal
underwriter in any underwriting or selling syndicate that is an
officer, director, member of an advisory board, Acquiring Fund Advisor,
Acquiring Fund Sub-Advisor, Sponsor, or employee of the Acquiring Fund,
or a person of which any such officer, director, member of an advisory
board, Acquiring Fund Advisor, Acquiring Fund Sub-Advisor, Sponsor, or
employee is an affiliated person, except any person whose relationship
to the Fund is covered by section 10(f) of the Act is not an
Underwriting Affiliate.
    15. Applicants propose several conditions to address the potential
for layering of fees. Applicants note that the board of directors or
trustees of an Acquiring Management Company, including a majority of
the independent directors or trustees, will be required to find that
any fees charged under the Acquiring Management Company's advisory
contract(s) are based on services provided that will be in addition to,
rather than duplicative of, services provided under the advisory
contract(s) of any Fund in which the Acquiring Management Company may
invest. Applicants state that any sales charges and/or service fees
charged with respect to shares of an Acquiring Fund will not exceed the
limits applicable to a fund of funds set forth in NASD Conduct Rule
2830.\15\
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    \15\ Any references to NASD Conduct Rule 2830 include any
successor or replacement rule that may be adopted by FINRA.
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    16. Applicants submit that the proposed arrangement will not create
an overly complex fund structure. Applicants note that a Fund will be
prohibited from acquiring securities of any investment company or
company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of
the limits contained in section 12(d)(1)(A) of the Act, except to the
extent permitted by exemptive relief from the Commission permitting the
Fund to purchase shares of other investment companies for short-term
cash management purposes.
    17. To ensure that an Acquiring Fund is aware of the terms and
conditions of the requested order, the Acquiring Fund must enter into
an agreement with the respective Fund (``Acquiring Fund Agreement'').
The Acquiring Fund Agreement will include an acknowledgment from the
Acquiring Fund that it may rely on the order only to invest in the Fund
and not in any other investment company.

Sections 17(a)(1) and (2) of the Act

    18. Section 17(a)(1) and (2) of the Act generally prohibit an
affiliated person of a registered investment company, or an affiliated
person of such a person (``second tier affiliate''), from selling any
security to or purchasing any security from the company. Section
2(a)(3) of the Act defines ``affiliated person'' to include any person
directly or indirectly owning, controlling, or holding with power to
vote 5% or more of the outstanding voting securities of the other
person and any person directly or indirectly controlling, controlled
by, or under common control with, the other person. Section 2(a)(9) of
the Act defines ``control'' of a fund as ``the power to exercise a
controlling influence over the management or policies'' of the fund and
provides that a control relationship will be presumed where one person
owns more than 25% of another person's voting securities. The Funds may
be deemed to be controlled by the Advisor or an entity controlling,
controlled by or under common control with the Advisor and hence
affiliated persons of each other. In addition, the Funds may be deemed
to be under common control with any other registered investment company
(or series thereof) advised by the Advisor or an entity controlling,
controlled by or under common control with the Advisor (an ``Affiliated
Fund'').
    19. Applicants request an exemption from section 17(a) under
sections 6(c) and 17(b) to permit in-kind purchases and redemptions of
Creation Units from the Funds by persons that are affiliated persons or
second tier affiliates of the Funds solely by virtue of one or more of
the following: (1) Holding 5% or more, or more than 25%, of the
outstanding Shares of the Trust or one or more Funds; (2) an
affiliation with a person with an ownership interest described in (1);
or (3) holding 5% or more, or more than 25%, of the shares of one or
more Affiliated Funds.\16\ Applicants also request an exemption in
order to permit a Fund to sell its Shares to and redeem its Shares from
an Acquiring Fund of which the Fund is an affiliated person or an
affiliated person of an affiliated person.\17\
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    \16\ Applicants are not seeking relief from section 17(a) for,
and the requested relief will not apply to, transactions where a
Fund could be deemed an affiliated person or an affiliated person of
an affiliated person, of an Acquiring Fund because an investment
adviser to the Funds is also an investment adviser to the Acquiring
Fund.
    \17\ To the extent that purchases and sales of Shares occur in
the secondary market and not through principal transactions directly
between an Acquiring Fund and a Fund, relief from section 17(a)
would not be necessary. However, the requested relief would apply to
direct sales of Shares in Creation Units by a Fund to an Acquiring
Fund and redemptions of those Shares. The requested relief is
intended to cover the in-kind transactions that would accompany such
sales and redemptions.
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    20. Applicants assert that no useful purpose would be served by
prohibiting the affiliated persons described above from making in-kind
purchases or in-kind redemptions of Shares of a Fund in Creation Units.
Both the deposit procedures for in-kind purchases of Creation Units and
the redemption procedures for in-kind redemptions will be effected in
exactly the same manner for all purchases and redemptions. Deposit
Securities and Redemption Securities will be valued in the same manner
as those Portfolio Securities currently held by the relevant Funds and
without regard to the identity of the purchaser or redeemer. Further,
the Deposit Securities and Redemption Securities (except for permitted
cash-in-lieu amounts) for a Fund will be the same, and in-kind
purchases and redemptions will be on the same terms, for all persons
regardless of the identity of the purchaser or redeemer. Therefore,
applicants state that the in-kind purchases and redemptions will afford
no opportunity for the specified affiliated persons of a Fund to effect
a transaction detrimental to other holders of Shares of that Fund.
Applicants do not believe that in-kind purchases and redemptions will
result in abusive self-dealing or overreaching of the Fund.
    21. Applicants also submit that the sale of Shares to and
redemption of Shares from an Acquiring Fund satisfies the standards for
relief under sections 17(b) and 6(c) of the Act. Any consideration paid
for the purchase or redemption of Shares directly from a Fund will be
based on the NAV per

Share of the Fund.\18\ The Acquiring Fund Agreement will require any
Acquiring Fund that purchases Creation Units directly from a Fund to
represent that the purchase will be accomplished in compliance with the
investment restrictions of the Acquiring Fund and will be consistent
with the investment policies set forth in the Acquiring Fund's
registration statement. Applicants believe that the proposed
transactions are consistent with the general purposes of the Act and
appropriate in the public interest.
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    \18\ Applicants acknowledge that the receipt of compensation by
(a) an affiliated person of an Acquiring Fund, or an affiliated
person of such person, for the purchase by the Acquiring Fund of
Shares or (b) an affiliated person of a Fund, or an affiliated
person of such person, for the sale by the Fund of its Shares to an
Acquiring Fund, may be prohibited by section 17(e)(1) of the Act.
The Acquiring Fund Agreement also will include this acknowledgment.
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Applicant's Conditions

    Applicants agree that any order of the Commission granting the
requested relief will be subject to the following conditions:

Actively-Managed Exchange-Traded Fund Relief

    1. Neither the Trust nor any Fund will be advertised or marketed as
an open-end investment company or mutual fund. Any advertising material
that describes the purchase or sale of Creation Units or refers to
redeemability will prominently disclose that the Shares are not
individually redeemable and that owners of the Shares may acquire those
Shares from the Fund and tender those Shares for redemption to the Fund
in Creation Units only.
    2. The Web site for the Funds, which is and will be publicly
accessible at no charge, will contain, on a per Share basis for each
Fund, the prior Business Day's NAV and the market closing price or Bid/
Ask Price, and a calculation of the premium or discount of the market
closing price or Bid/Ask Price against such NAV.
    3. As long as a Fund operates in reliance on the requested order,
its Shares will be listed on a Listing Market.
    4. On each Business Day, before commencement of trading in Shares
on a Fund's Listing Market, the Fund will disclose on its Web site the
identities and quantities of the Portfolio Securities and other assets
held by the Fund that will form the basis for the Fund's calculation of
NAV per Share at the end of the Business Day.
    5. The Advisor or any Sub-Advisors, directly or indirectly, will
not cause any Authorized Participant (or any investor on whose behalf
an Authorized Participant may transact with the Fund) to acquire any
Deposit Security for a Fund through a transaction in which the Fund
could not engage directly.
    6. The requested relief to permit ETF operations will expire on the
effective date of any Commission rule under the Act that provides
relief permitting the operation of actively-managed exchange-traded
funds.

Section 12(d)(1) Relief

    7. The members of an Acquiring Fund's Advisory Group will not
control (individually or in the aggregate) a Fund within the meaning of
section 2(a)(9) of the Act. The members of an Acquiring Fund's Sub-
Advisory Group will not control (individually or in the aggregate) a
Fund within the meaning of section 2(a)(9) of the Act. If, as a result
of a decrease in the outstanding voting securities of a Fund, the
Acquiring Fund's Advisory Group or the Acquiring Fund's Sub-Advisory
Group, each in the aggregate, becomes a holder of more than 25 percent
of the outstanding voting securities of a Fund, it will vote its Shares
of the Fund in the same proportion as the vote of all other holders of
that Fund's Shares. This condition does not apply to the Acquiring
Fund's Sub-Advisory Group with respect to a Fund for which the
Acquiring Fund Sub-Advisor or a person controlling, controlled by, or
under common control with the Acquiring Fund Sub-Advisor acts as the
investment adviser within the meaning of section 2(a)(20)(A) of the
Act.
    8. No Acquiring Fund or Acquiring Fund Affiliate will cause any
existing or potential investment by the Acquiring Fund in a Fund to
influence the terms of any services or transactions between the
Acquiring Fund or an Acquiring Fund Affiliate and the Fund or a Fund
Affiliate.
    9. The board of directors or trustees of an Acquiring Management
Company, including a majority of the independent directors or trustees,
will adopt procedures reasonably designed to ensure that the Acquiring
Fund Advisor and any Acquiring Fund Sub-Advisor are conducting the
investment program of the Acquiring Management Company without taking
into account any consideration received by the Acquiring Management
Company or an Acquiring Fund Affiliate from a Fund or a Fund Affiliate
in connection with any services or transactions.
    10. Once an investment by an Acquiring Fund in Shares exceeds the
limits in section 12(d)(1)(A)(i) of the Act, the board of trustees of
the Trust (``Board''), including a majority of the independent
trustees, will determine that any consideration paid by the Fund to an
Acquiring Fund or an Acquiring Fund Affiliate in connection with any
services or transactions: (i) Is fair and reasonable in relation to the
nature and quality of the services and benefits received by the Fund;
(ii) is within the range of consideration that the Fund would be
required to pay to another unaffiliated entity in connection with the
same services or transactions; and (iii) does not involve overreaching
on the part of any person concerned. This condition does not apply with
respect to any services or transactions between a Fund and its
investment adviser(s), or any person controlling, controlled by or
under common control with such investment adviser(s).
    11. No Acquiring Fund or Acquiring Fund Affiliate (except to the
extent it is acting in its capacity as an investment adviser to a Fund)
will cause the Fund to purchase a security in any Affiliated
Underwriting.
    12. The Board, including a majority of the independent trustees,
will adopt procedures reasonably designed to monitor any purchases of
securities by the Fund in an Affiliated Underwriting, once an
investment by an Acquiring Fund in the securities of the Fund exceeds
the limit of section 12(d)(1)(A)(i) of the Act, including any purchases
made directly from an Underwriting Affiliate. The Board will review
these purchases periodically, but no less frequently than annually, to
determine whether the purchases were influenced by the investment by
the Acquiring Fund in the Fund. The Board will consider, among other
things: (i) Whether the purchases were consistent with the investment
objectives and policies of the Fund; (ii) how the performance of
securities purchased in an Affiliated Underwriting compares to the
performance of comparable securities purchased during a comparable
period of time in underwritings other than Affiliated Underwritings or
to a benchmark such as a comparable market index; and (iii) whether the
amount of securities purchased by the Fund in Affiliated Underwritings
and the amount purchased directly from an Underwriting Affiliate have
changed significantly from prior years. The Board will take any
appropriate actions based on its review, including, if appropriate, the
institution of procedures designed to assure that purchases of
securities in Affiliated Underwritings are in the best interest of
shareholders of the Fund.
    13. Each Fund will maintain and preserve permanently in an easily

accessible place a written copy of the procedures described in the
preceding condition, and any modifications to such procedures, and will
maintain and preserve for a period of not less than six years from the
end of the fiscal year in which any purchase in an Affiliated
Underwriting occurred, the first two years in an easily accessible
place, a written record of each purchase of securities in Affiliated
Underwritings, once an investment by an Acquiring Fund in the
securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of
the Act, setting forth from whom the securities were acquired, the
identity of the underwriting syndicate's members, the terms of the
purchase, and the information or materials upon which the
determinations of the Board were made.
    14. Before investing in Shares of a Fund in excess of the limits in
section 12(d)(1)(A), each Acquiring Fund and the Fund will execute an
Acquiring Fund Agreement stating, without limitation, that their boards
of directors or boards of trustees and their investment adviser(s), or
their Sponsors or trustees (``Trustee''), as applicable, understand the
terms and conditions of the order, and agree to fulfill their
responsibilities under the order. At the time of its investment in
Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), an
Acquiring Fund will notify the Fund of the investment. At such time,
the Acquiring Fund will also transmit to the Fund a list of the names
of each Acquiring Fund Affiliate and Underwriting Affiliate. The
Acquiring Fund will notify the Fund of any changes to the list of the
names as soon as reasonably practicable after a change occurs. The Fund
and the Acquiring Fund will maintain and preserve a copy of the order,
the Acquiring Fund Agreement, and the list with any updated information
for the duration of the investment and for a period of not less than
six years thereafter, the first two years in an easily accessible
place.
    15. The Acquiring Fund Advisor, Trustee or Sponsor, as applicable,
will waive fees otherwise payable to it by the Acquiring Fund in an
amount at least equal to any compensation (including fees received
pursuant to any plan adopted under rule 12b-1 under the Act) received
from the Fund by the Acquiring Fund Advisor, Trustee or Sponsor, or an
affiliated person of the Acquiring Fund Advisor, Trustee or Sponsor,
other than any advisory fees paid to the Acquiring Fund Advisor,
Trustee, or Sponsor, or its affiliated person by the Fund, in
connection with the investment by the Acquiring Fund in the Fund. Any
Acquiring Fund Sub-Advisor will waive fees otherwise payable to the
Acquiring Fund Sub-Advisor, directly or indirectly, by the Acquiring
Management Company in an amount at least equal to any compensation
received from a Fund by the Acquiring Fund Sub-Advisor, or an
affiliated person of the Acquiring Fund Sub-Advisor, other than any
advisory fees paid to the Acquiring Fund Sub-Advisor or its affiliated
person by the Fund, in connection with any investment by the Acquiring
Management Company in the Fund made at the direction of the Acquiring
Fund Sub-Advisor. In the event that the Acquiring Fund Sub-Advisor
waives fees, the benefit of the waiver will be passed through to the
Acquiring Management Company.
    16. Any sales charges and/or service fees charged with respect to
shares of an Acquiring Fund will not exceed the limits applicable to a
fund of funds as set forth in NASD Conduct Rule 2830.
    17. No Fund will acquire securities of any other investment company
or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess
of the limits contained in section 12(d)(1)(A) of the Act, except to
the extent permitted by exemptive relief from the Commission permitting
the Fund to purchase shares of other investment companies for short-
term cash management purposes.
    18. Before approving any advisory contract under section 15 of the
Act, the board of directors or trustees of each Acquiring Management
Company, including a majority of the independent directors or trustees,
will find that the advisory fees charged under such advisory contract
are based on services provided that will be in addition to, rather than
duplicative of, the services provided under the advisory contract(s) of
any Fund in which the Acquiring Management Company may invest. These
findings and their basis will be recorded fully in the minute books of
the appropriate Acquiring Management Company.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-16142 Filed 6-27-11; 8:45 am]
BILLING CODE 8011-01-P