[Federal Register: June 16, 2006 (Volume 71, Number 116)]
[Notices]
[Page 34907]
[DOCID:fr16jn06-78]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. ER00-2268-019; EL05-10-000; ER99-4124-016; EL05-11-000;
ER00-3312-017; EL05-12-000; ER99-4122-018; EL05-13-000]

Pinnacle West Capital Corporation; Arizona Public Service
Company; Pinnacle West Energy Corporation; APS Energy Services Company,
Inc.; Notice of Filing

June 8, 2006.
    Take notice that on May 17, 2006, pursuant to the Commission's
Order issued on April 17, 2006, in the above-captioned proceeding,
Pinnacle West Companies filed revised market-based rate tariffs to
limit sales at market-based rates to areas outside of the APS control
area and a separate tariff to provide for the default cost-based rates
for the APS control area, to be effective February 27, 2005.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date.
Anyone filing a motion to intervene or protest must serve a copy of
that document on the Applicant and all the parties in this proceeding.
    The Commission encourages electronic submission of 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: 5 p.m. Eastern Time on June 29, 2006.

Magalie R. Salas,
Secretary.
 [FR Doc. E6-9377 Filed 6-15-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 87, Number 26 (Tuesday, February 8, 2022)]
[Notices]
[Pages 7196-7197]
[FR Doc No: 2022-02566]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2022-0049]

Information Collection Request to Office of Management and
Budget; OMB Control Number: 1625-0112

AGENCY: Coast Guard, DHS.

ACTION: Sixty-day notice requesting comments.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995, the
U.S. Coast Guard intends to submit an Information Collection Request
(ICR) to the Office of Management and Budget (OMB), Office of
Information and Regulatory Affairs (OIRA), requesting an extension of
its approval for the following collection of information: 1625-0112,
Enhanced Maritime Domain Awareness via Electronic Transmission of
Vessel Transit Data; without change. Our ICR describes the information
we seek to collect from the public. Before submitting this ICR to OIRA,
the Coast Guard is inviting comments as described below.

DATES: Comments must reach the Coast Guard on or before April 11, 2022.

ADDRESSES: You may submit comments identified by Coast Guard docket
number [USCG-2022-0049] to the Coast Guard using the Federal
eRulemaking Portal at https://www.regulations.gov. See the ``Public
participation and request for comments'' portion of the SUPPLEMENTARY
INFORMATION section for further instructions on submitting comments.
    A copy of the ICR is available through the docket on the internet
at https://www.regulations.gov. Additionally, copies are available
from: Commandant (CG-6P), ATTN: Paperwork Reduction Act Manager, U.S.
Coast Guard, 2703 Martin Luther King Jr. Ave SE, STOP 7710, Washington,
DC 20593-7710.

FOR FURTHER INFORMATION CONTACT: A.L. Craig, Office of Privacy
Management, telephone<PHONE_NUMBER>, or fax<PHONE_NUMBER>, for questions
on these documents.

SUPPLEMENTARY INFORMATION:

Public Participation and Request For Comments

    This notice relies on the authority of the Paperwork Reduction Act
of 1995; 44 U.S.C. 3501 et seq., chapter 35, as amended. An ICR is an
application to OIRA seeking the approval, extension, or renewal of a
Coast Guard collection of information (Collection). The ICR contains
information describing the

Collection's purpose, the Collection's likely burden on the affected
public, an explanation of the necessity of the Collection, and other
important information describing the Collection. There is one ICR for
each Collection.
    The Coast Guard invites comments on whether this ICR should be
granted based on the Collection being necessary for the proper
performance of Departmental functions. In particular, the Coast Guard
would appreciate comments addressing: (1) The practical utility of the
Collection; (2) the accuracy of the estimated burden of the Collection;
(3) ways to enhance the quality, utility, and clarity of information
subject to the Collection; and (4) ways to minimize the burden of the
Collection on respondents, including the use of automated collection
techniques or other forms of information technology.
    In response to your comments, we may revise this ICR or decide not
to seek an extension of approval for the Collection. We will consider
all comments and material received during the comment period.
    We encourage you to respond to this request by submitting comments
and related materials. Comments must contain the OMB Control Number of
the ICR and the docket number of this request, [USCG-2022-0049], and
must be received by April 11, 2022.

Submitting Comments

    We encourage you to submit comments through the Federal eRulemaking
Portal at https://www.regulations.gov. If your material cannot be
submitted using https://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions. Documents mentioned in this notice, and all public
comments, are in our online docket at https://www.regulations.gov and
can be viewed by following that website's instructions. Additionally,
if you go to the online docket and sign up for email alerts, you will
be notified when comments are posted.
    We accept anonymous comments. All comments received will be posted
without change to https://www.regulations.gov and will include any
personal information you have provided. For more about privacy and
submissions in response to this document, see DHS's eRulemaking System
of Records notice (85 FR 14226, March 11, 2020).

Information Collection Request

    Title: Enhanced Maritime Domain Awareness via Electronic
Transmission of Vessel Transit Data.
    OMB Control Number: 1625-0112.
    Summary: The Coast Guard collects, stores, and analyzes data
transmitted by Long Range Identification and Tracking (LRIT) and
Automatic Identification System (AIS) to enhance maritime domain
awareness (MDA). Awareness and threat knowledge are critical for
securing the maritime domain and the key to preventing adverse events.
Data is also used for marine safety and environmental protection
purposes 46 U.S.C. 70114 and 70115 authorize the Secretary of the
Department of Homeland Security (DHS) to establish the AIS and LRIT
requirements. This authority is delegated by the Secretary to the Coast
Guard via the Department of Homeland Security Delegation No. 0170.1,
Revision No. 01.2. (II)(97.j and k).
    Need: To ensure port safety and security and to ensure the
uninterrupted flow of commerce.
    Forms: None.
    Respondents: Owners or operators of certain vessels.
    Frequency: On occasion.
    Hour Burden Estimate: The estimated burden remains 52,728 hours a
year.

    Authority:  The Paperwork Reduction Act of 1995; 44 U.S.C.
chapter 35, as amended.

    Dated: February 1, 2022.
Kathleen Claffie,
Chief, Office of Privacy Management, U.S. Coast Guard.
[FR Doc. 2022-02566 Filed 2-7-22; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register: March 5, 2007 (Volume 72, Number 42)]
[Notices]
[Page 9817-9820]
[DOCID:fr05mr07-95]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55354; File No. SR-NYSE-2007-04]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Proposed Rule Change Relating to Approval of Fee
for NYSE Real-Time Trade Prices

February 26, 2007.

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on January 12, 2007, the New York Stock Exchange LLC (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been substantially prepared by the
NYSE. The Commission is publishing this notice to solicit comments on
the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to establish as a one-year pilot test NYSE
Real-Time Trade Prices, a new NYSE-only market data service that allows
a vendor to redistribute on a real-time basis last sale prices of
transactions that take place on the Exchange (``NYSE Trade Prices'')
and to establish a flat monthly fee for that service.

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

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

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

1. Purpose
    i. The Service. The Exchange proposes to conduct a one-year pilot
program that

will allow the Exchange to test the viability of NYSE Real-Time Trade
Prices. The Exchange intends for the NYSE Real-Time Trade Prices
service to accomplish three goals:
    a. To provide a low-cost service that will make real-time prices
widely available to many millions of casual investors;
    b. to provide vendors with a real-time substitute for delayed
prices; and
    c. to relieve vendors of all administrative burdens.
    During the one-year pilot program, the NYSE Real-Time Trade Prices
service would allow internet service providers, traditional market data
vendors, and others (``NYSE-Only Vendors'') to make available NYSE
Trade Prices on a real-time basis.\3\ The NYSE Real-Time Trade Prices
information would include last sale prices for all securities that are
traded on the Exchange. It would include only prices. It would not
include the size of each trade and would not include bid/asked
quotations.
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    \3\ The Exchange notes that it will make the NYSE Trade Prices
available to vendors no earlier than it makes those prices available
to the processor under the CTA Plan.
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    As with most of its market data products, the Exchange is proposing
to conduct the one-year pilot program for NYSE Real-Time Trade Prices
to respond to the desires of its constituents. In this case, the
product responds to the requirements for distribution of real-time last
sale prices over the Internet for reference purposes, rather than as a
basis for making trading decisions. The Exchange contemplates that
internet service providers with a substantial customer base and
traditional vendors with large numbers of less active investors are
potential subscribers to NYSE Real-Time Trade Prices.
    Many internet service providers and vendors distribute data to
large numbers of casual market data consumers, who access the data in
order to ``get a feel'' for the market in a security or to price the
value of a portfolio, rather than to make investment decisions. The
Exchange has designed the NYSE Real-Time Trade Prices service to appeal
to that community, significant segments of which have historically
relied upon delayed last sale prices. That is, the Exchange believes
that NYSE Real-Time Trade Prices will replace delayed last sale prices
for many casual investors.
    During the one-year pilot program, the Exchange will not permit
NYSE-Only Vendors to provide NYSE Trade Prices in a context in which a
trading or order-routing decision can be implemented unless the NYSE-
Only Vendor also provides consolidated displays of Network A last sale
prices available in an equivalent manner, as Rule 603(c)(1) of
Regulation NMS requires.
    During our discussions with potential vendors, vendors requested
NYSE real-time, last sale prices for widespread internet distribution,
but wanted to eliminate the administrative burdens associated with the
current distribution of real-time CTA prices. In addition, because
these vendor services do not support trading or order routing
functionality, the vendors do not require, nor do they wish to pay for,
the full spectrum of consolidated CTA information. At the same time,
they recognize the quality and branding value of an NYSE print. In
response, the NYSE Trade Price pilot program features a flat, fixed
monthly vendor fee, no user-based fees, no vendor reporting
requirements, and no professional or non-professional subscriber
agreements.
    The Commission and the industry have long recognized CTA's success
in making market data available on an affordable and widespread basis
to a large number of investors. NYSE's proposed pilot program will test
out a potential supplement to CTA's success, as the pilot program will
make NYSE Trade Prices widely available and without charge to an even
larger universe of investors.
    ii. The Fees. For the duration of the one-year pilot program, the
Exchange proposes to establish a monthly flat fee that will entitle an
NYSE-Only Vendor to receive access to the NYSE Real-Time Trade Prices
datafeed. The NYSE-Only Vendor may use that access to provide unlimited
NYSE Trade Prices to an unlimited number of the NYSE-Only Vendor's
subscribers and customers. It may also syndicate the service to an
unlimited number of other Web site proprietors (as described below).
The Exchange will not impose any device or end-user fee for the NYSE-
Only Vendors' distribution of NYSE Trade Prices.
    The Exchange proposes to set the flat fee at $100,000 per month.
The NYSE-Only Vendor would agree to identify the NYSE trade price by
placing the text ``NYSE Data'' in close proximity to the display of
each NYSE Trade Price or series of NYSE Trade Prices.
    The flat fee enables the NYSE-Only Vendor to make NYSE Trade Prices
available without having to differentiate between professional
subscribers and nonprofessional subscribers, without having to account
for the extent of access to the data, and without having to report the
number of users.
    The flat fee enables internet service providers and traditional
vendors that have large numbers of casual investors as subscribers and
customers to contribute to the Exchange's operating costs in a manner
that is appropriate for their means of distribution.
    In setting the level of the NYSE Real-Time Trade Prices pilot
program fees, the Exchange took into consideration several factors,
including:
    a. Consultation with some of the entities that the Exchange
anticipates will be the most likely to take advantage of the proposed
fees;
    b. the contribution of market data revenues that the Exchange's
independent Board of Directors believes is appropriate for entities
that provide market data to large numbers of investors, which are the
entities most likely to take advantage of the proposed fees;
    c. the contribution that revenues accruing from the proposed fees
will make to meeting the overall costs of the Exchange's operations;
    d. projected losses to the Exchange's other sources of market data
revenues (e.g., from its share of revenues derived from Network A
nonprofessional subscriber fees), which losses are likely to result
from the ability of NYSE-Only Vendors to distribute unlimited
quantities of NYSE Trade Prices to an unlimited number of investors at
no cost to the investors;
    e. the savings in administrative and reporting costs that the NYSE
Real-Time Trade Prices service will provide to NYSE-Only Vendors; and
    f. the fact that the proposed fees provide an alternative to
existing Network A fees under the CTA Plan, an alternative that vendors
will purchase only if they determine that the perceived benefits
outweigh the cost.
    In short, the Exchange believes that the proposed NYSE Real-Time
Trade Prices pilot program fees would reflect an equitable allocation
of its overall costs to users of its facilities.
    iii. Contracts. After consultation with potential NYSE-Only
Vendors, the Exchange has determined to allow NYSE-Only Vendors to
provide NYSE Real-Time Trade Prices to their subscribers and customers
without requiring the end-users to enter into contracts for the benefit
of the Exchange. This pilot program marks the first real-time
interrogation service for which the Exchange has not required end-users
to enter into agreements.
    Instead, the Exchange will require NYSE-Only Vendors to provide a
readily visible hyperlink that will send the end-user to a warning
notice about the end-user's receipt and use of market data. The notice
would be similar to the

notice that vendors provide today when providing CTA delayed data
services.
    The Exchange will require NYSE-Only Vendors to enter into the form
of ``vendor'' agreement into which the CTA and CQ Plans require
recipients of the Network A datafeeds to enter (the ``Network A Vendor
Form''). The Network A Vendor Form will authorize the NYSE-Only Vendor
to provide the NYSE Real-Time Trade Prices service to its subscribers
and customers.
    The Network A Participants drafted the Network A Vendor Form as a
one-size-fits-all form to capture most categories of market data
dissemination. It is sufficiently generic to accommodate NYSE Real-Time
Trade Prices. The Commission has approved the Network A Vendor Form.
\4\
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    \4\ See Securities Exchange Act Release Nos. 28407 (September 6,
1990), 55 FR 37276 (September 10, 1990), and 49185 (February 4,
2004), 69 FR 6704 (February 11, 2004).
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    The Exchange will supplement the Network A Vendor Form with an
Exhibit C that will provide above-described terms and conditions that
are unique to the NYSE Real-Time Trade Prices service. The supplemental
terms will govern such things as the restriction against providing the
service in the context of a trading or order-routing service, the
replacement of end-user agreements with a hyperlink to a notice, the
substance of the notice, the ``NYSE Data'' labeling requirement and the
NYSE-Only Vendor's obligation to impose the below-described Syndication
Requirements on other Web site proprietors. In addition, Exhibit C will
specify that the NYSE-Only Vendor's authorization to provide the
service will terminate at the expiration date of the pilot program
unless the Exchange submits a proposed rule change to extend the
program or to make it permanent and the Commission approves that
proposed rule change. Finally, because of the experimental nature of
the program, Exhibit C will require NYSE-Only Vendors to share with the
Exchange any research they may conduct regarding the pilot program or
the results of their experience with the program and to consult with
the Exchange regarding their views of NYSE Real-Time Trade Prices.
    iv. Syndication. In addition to allowing an NYSE-Only Vendor to
make NYSE Trade Prices available on its Web site, the pilot program
will also allow NYSE-Only Vendors to syndicate the service by arranging
with other Web site proprietors to link any such other proprietor's Web
site to the NYSE-Only Vendor's NYSE Trade Prices service. NYSE will
allow NYSE-Only Vendors to syndicate their NYSE Trade Price services in
this manner at no additional charge to the NYSE-Only Vendor or to the
other Web site proprietors, subject to the following ``Syndication
Requirements'':
    a. Each other Web site proprietor must provide the same readily
visible hyperlink that the NYSE-Only Vendor must provide on its Web
site: The hyperlink that will send the end-user to a warning notice
about the end-user's receipt and use of market data.
    b. Each other Web site proprietor must identify the NYSE trade
price by placing the text ``NYSE Data'' in close proximity to the
display of each NYSE Trade Price or series of NYSE Trade Prices, just
as NYSE proposes to require NYSE-Only Vendors to do.
    c. Each other Web site proprietor must identify the NYSE-Only
Vendor as the source of the NYSE Trade Price data in close proximity to
the display of each NYSE Trade Price or series of NYSE Trade Prices.
    d. Each other Web site proprietor must agree not to provide NYSE
Trade Prices in a context in which a trading or order-routing decision
can be implemented unless the other Web site proprietor also provides
consolidated displays of Network A last sale prices available in an
equivalent manner.
    v. Duration of Pilot Program. The innovative nature of the pricing
structure for NYSE Real-Time Trade Prices and the absence of
administrative requirements pose potential regulatory and financial
risks for both the Exchange and its customers.
    On the regulatory side, in Rule 603(c)(1), the Commission specifies
that unconsolidated data should not support trading and order routing
functionality. The Exchange agrees with the Commission. It would be
inappropriate for market professionals and investors to base trading
and order-routing decisions and investment advice on one market's last
sale prices, which last sale prices exclude national best bids and
offers, sizes and other data elements. The Exchange did not design the
NYSE Real-Time Trade Prices service for the purposes of trading and
order-routing decisions and investment advice, yet the Exchange is
concerned about its ability to monitor and prevent those unintended
uses.
    On the financial side, the Exchange designed NYSE Real-Time Trade
Prices as a low-cost service that will make real-time prices widely
available to many millions of casual investors, will allow vendors to
replace delayed prices services with real-time services, and will
relieve vendors of all administrative burdens. However, the Exchange is
concerned about the potential financial risk associated with market
participants' use of NYSE Real-Time Trade Prices for the unintended
purposes described above.
    Therefore, the Exchange proposes to test the NYSE Real-Time Trade
Prices service for one year. The Exchange proposes to commence the
pilot program at the end of the month in which the Commission approves
the proposed rule change and to end the program one year from that
date. During that year, the Exchange will closely monitor the use of
the NYSE Real-Time Trade Prices service, including for any unintended
uses of the product. Among other functions, the Exchange will consult
with NYSE-Only vendors, will monitor the impact of the program on other
market data services, will examine any abuses arising from the absence
of contractual relationships with end-users and will assess whether the
flat fee is set at the appropriate level and whether a different
pricing metric would be preferable.
    Prior to the end of the one-year period, the Exchange will assess
its experience with the product. It either will submit a proposed rule
change that seeks to extend or modify the pilot program or to make it
permanent, or will announce publicly that it does not seek to extend
the pilot program beyond the one-year termination date.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \5\ in general, and furthers the objectives of Section
6(b)(4) of the Act \6\ in particular, in that it is designed to provide
for the equitable allocation of reasonable dues, fees and other charges
among Exchange participants, issuers and other persons using its
facilities.
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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    In proposing and adopting Regulation NMS, the Commission rescinded
the prior prohibition on SROs from disseminating their trade reports
independently,\7\ subjecting that distribution to the ``fair and
reasonable'' and ``not unreasonably discriminatory'' standards that
have historically governed the distribution of consolidated data.\8\
The Commission stated, ``Given that * * * SROs will continue to
transmit trades to the Networks pursuant to the Plans * * *,

the Commission believe [sic] that SROs and their members also should be
free to distribute their trades independently.'' \9\
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    \7\ See Rule 601 of Regulation NMS.
    \8\ See Rule 603(a) of Regulation NMS.
    \9\ See Footnote 638 to Regulation NMS (Securities Exchange Act
Release No. 51808; File No. S7-10-04 (June 9, 2005), 70 FR 37495
(June 29, 2005)).
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    The Commission rescinded the prohibition in recognition of the fact
that competition in the realm of SRO trade-report distribution would
produce market forces and innovation that would benefit the investing
public. By means of the pilot program, the Exchange would allow
internet service providers and traditional vendors to test the
viability of an alternative market data fee structure that does not
exist today and to do so without the burden of the reporting,
contracting and other administrative obligations associated with most
other market data services. If they believe that the proposed fees
would enable them to make market data available in the most cost-
effective manner for them and their subscribers and customers, they
will embrace the pilot program's proposed fees. If not, they will
continue to make consolidated last sale prices available pursuant to
the Network A fees currently in effect under the CTA Plan.
    Given that the pilot program proposes to provide an alternative to
existing fees and does not alter or rescind any existing fees, the
Exchange does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

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

    The Exchange has discussed the proposed rules change with those
entities that the Exchange believes would be the most likely to take
advantage of the proposed NYSE Real-Time Trade Prices service by
becoming NYSE-Only Vendors. While those entities have not submitted
formal, written comments on the proposal, the Exchange has incorporated
some of their ideas into the proposal and the proposed rule change
reflects their input. The Exchange has not received any unsolicited
written comments from members or other interested parties.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding, or (ii) as to
which the NYSE consents, the Commission will:
    A. By order approve such proposed rule change; or
    B. institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

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

File Number SR-NYSE-2007-04 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2007-04. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make publicly available. All submissions should refer to
File Number SR-NYSE-2007-04 and should be submitted on or before March
26, 2007.
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    \10\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\10\
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-3750 Filed 3-2-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: April 8, 2009 (Volume 74, Number 66)]
[Rules and Regulations]
[Page 15864-15865]
[DOCID:fr08ap09-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2008-0479; FRL-8775-5]

Determination of Attainment of the One-Hour Ozone Standard for
the Southern New Jersey Portion of the Philadelphia Metropolitan
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is determining that the one-hour ozone nonattainment area
in Southern New Jersey, that is, the New Jersey portion of the
Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD area, attained the one-
hour ozone standard, is not subject to the imposition of penalty fees
under section 185 of the Clean Air Act and does not need to implement
contingency measures. Areas that EPA classified as severe ozone
nonattainment areas for the one-hour National Ambient Air Quality
Standard and did not attain the Standard by the applicable attainment
date of November 15, 2005 may be subject to these penalty fees.
However, since the air quality in the Philadelphia-Wilmington-Trenton
area attained the ozone standard as of November 15, 2005, this area
will not need to implement this fee program. This is not a
redesignation of atttainment for this area, only a fulfillment of a
Clean Air Act obligation to determine if an area attained the ozone
standard by its applicable attainment date.

DATES: Effective Date: This rule is effective on May 8, 2009.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R02-OAR-2008-0479. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air Programs
Branch, U.S. Environmental Protection Agency, Region 2, 290 Broadway,
25th Floor, New York, New York 10007-1866. To make your visit as
productive as possible, contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, Air Programs Branch,
Environmental Protection Agency, Region 2, 290 Broadway, 25th Floor,
New York, New York 10007-1866, telephone number<PHONE_NUMBER>, fax
number<PHONE_NUMBER>, e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    EPA has determined that the New Jersey portion of the Philadelphia-
Wilmington-Trenton, PA-NJ-DE-MD one-hour ozone nonattainment area (the
``Philadelphia metropolitan'' nonattainment area) attained the one-hour
ozone National Ambient Air Quality Standard (NAAQS) by its attainment
date, November 15, 2005. (The Philadelphia metropolitan nonattainment
area consists of the following counties: Cecil County, Maryland; Kent
and New Castle Counties in Delaware; Burlington, Camden, Cumberland,
Gloucester, Mercer, and Salem Counties in New Jersey; and, Bucks,
Chester, Delaware, Montgomery, and Philadelphia Counties in
Pennsylvania.) As a result, EPA finds that this area is not subject to
the imposition of the section 185 penalty fees and does not need to
implement contingency measures. In a separate final rule at 73 FR
43360, EPA's Region 3 office found that the balance of the Philadelphia
metropolitan nonattainment area attained the one-hour ozone NAAQS by
its applicable attainment date and is not subject to the imposition of
section 185 penalty fees. Other specific requirements of the
determination and the rationale for EPA's proposed action are explained
in the Proposed Rulemaking published on July 23, 2008 (73 FR 42727).
The proposal was based on three years of complete, quality-assured
ambient air quality monitoring data for 2003 through 2005 ozone
seasons. This determination of attainment is not a redesignation to
attainment for this area. Persons seeking more information on this
action should access EPA's docket for this action at http://
www.regulations.gov, docket number EPA-R02-OAR-2008-0479. EPA received
no comments on the proposed action.

II. Final Action

    Based upon EPA's review of the air quality data for the 3-year
period 2003 to 2005, EPA has determined that the New Jersey portion of
the Philadelphia metropolitan area has attained the 1-hour ozone NAAQS
by the applicable attainment date of November 15, 2005. EPA also has
determined that this area is not subject to the imposition of the
section 185 penalty fees. In addition, because the area has attained
the one-hour ozone NAAQS by the applicable attainment date, the area is
not subject to the requirement to implement contingency measures for
failure to attain the one-hour ozone NAAQS by its attainment date.
Since the area has met its attainment deadline, even if the area
subsequently lapses into nonattainment, it would not be required to
implement the contingency measures for failure to attain the one-hour
ozone NAAQS by its attainment date.

III. Statutory and Executive Order Reviews

    This final action determines that an area has attained a
previously-established NAAQS based on an objective review of measured
air quality data. Accordingly, this action merely affirms that state
actions are meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National

Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with
the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because New Jersey's State Implementation Plans are not approved to
apply in Indian country located in the state, and EPA notes that it
will not impose substantial direct costs on tribal governments or
preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 8, 2009. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 12, 2009.
George Pavlou,
Acting Regional Administrator, Region 2.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart FF--New Jersey

0
2. Section 52.1582 is amended by adding new paragraph (l) to read as
follows:

Sec.  52.1582   Control strategy and regulations: Ozone.

* * * * *
    (l) Attainment determination. EPA has determined that the
Philadelphia-Wilmington-Trenton severe 1-hour ozone nonattainment area
attained the 1-hour ozone NAAQS by the applicable attainment date of
November 15, 2005. In New Jersey, this area includes the counties of
Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem. EPA also
has determined that the Philadelphia-Wilmington-Trenton severe 1-hour
ozone nonattainment area is not subject to the imposition of the
section 185 penalty fees. In addition, the requirements of section
172(c)(9) (contingency measures) do not apply to the area.

 [FR Doc. E9-7683 Filed 4-7-09; 8:45 am]


[Federal Register: March 5, 2008 (Volume 73, Number 44)]
[Notices]
[Page 11959-11962]
[DOCID:fr05mr08-109]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28176; 812-13348]

Patriot Capital Funding, Inc.; Notice of Application

February 28, 2008.
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 (the ``Act'') for an exemption from
sections 23(a), 23(b) and 63 of the Act, and under sections 57(a)(4)
and 57(i) of the Act and rule 17d-1 under the Act permitting certain
joint transactions otherwise prohibited by section 57(a)(4) of the Act.

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Summary of the Application: Patriot Capital Funding, Inc.
(``Applicant'') requests an order to permit Applicant to issue
restricted shares of its common stock under the terms of its employee
compensation plan.

Filing Dates: The application was filed on November 29, 2006, and
amended on February 15, 2008. Applicant has agreed to file an amendment
during the notice period, the substance of which is reflected in the
notice.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving Applicant with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on March 24, 2008, and should be accompanied by proof of service
on applicant, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090. Applicant, c/o Richard P.
Buckanavage, President and Chief Executive Officer, Patriot Capital
Funding, Inc., 274 Riverside Avenue, Westport, CT 06880.

FOR FURTHER INFORMATION CONTACT: Shannon Conaty, Senior Counsel, at
(202) 551-6827, or Janet M. Grossnickle, Branch Chief, at (202) 551-
6821 (Division of Investment Management, Office of Investment Company
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained for a fee at the
Commission's Public Reference Desk, 100 F Street, NE., Washington, DC
20549-1520 (tel.<PHONE_NUMBER>).

Applicant's Representations

    1. Applicant, a Delaware corporation, is an internally managed,
non-diversified, closed-end investment company that has elected to be
regulated as a business development company (``BDC'') under the Act.\1\

Applicant is a specialty finance company that provides customized
financing solutions to small- and medium-sized companies. Applicant's
investments are primarily senior secured commercial loans, subordinated
debt instruments and junior secured term loans. Shares of Applicant's
common stock are traded on The NASDAQ Stock Market, Inc. Global Select
Market under the symbol ``PCAP.'' As of December 31, 2007, there were
20,650,455 shares of Applicant's common stock issued and outstanding.
As of that date, Applicant had 14 employees, including the employees of
its one wholly-owned consolidated subsidiary, Patriot Capital Funding
LLC I.
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    \1\ Applicant was organized on November 4, 2002. When Applicant
commenced business operations in 2003, its business was conducted
through two separate entities, Patriot Capital Funding, Inc. and
Wilton Funding, LLC. On July 27, 2005, Wilton Funding, LLC merged
with and into Patriot Capital Funding, Inc. and the surviving
entity, Applicant, elected to be regulated as a BDC. Section
2(a)(48) defines a BDC to be any closed-end investment company that
operates for the purpose of making investments in securities
described in sections 55(a)(1) through 55(a)(3) of the Act and makes
available significant managerial assistance with respect to the
issuers of such securities. On August 2, 2005, Applicant completed
its initial public offering.
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    2. Applicant currently has a six-member board of directors (the
``Board'') of whom two are ``interested persons'' of Applicant within
the meaning of section 2(a)(19) of the Act and four are not interested
persons (the ``non-interested directors''). The four non-interested
directors are neither employees nor officers of Applicant (the ``non-
employee directors'').
    3. Applicant currently intends, upon receipt of the order, to
discontinue its stock option plan and offer all employees holding
outstanding options the opportunity to cancel those options in exchange
for shares of restricted stock (i.e., stock that, at the time of
issuance, is subject to certain forfeiture restrictions, and thus is
restricted as to its transferability until such forfeiture restrictions
have lapsed) (the ``Restricted Stock''). Conversion of options into
shares of Restricted Stock will not be mandatory and each employee will
have the ability to choose to cancel and convert or to keep his or her
outstanding options. As of December 31, 2007, total outstanding stock
options represent 11.8% of Applicant's total outstanding shares of
common stock.\2\ The number of shares of Restricted Stock that will be
issued in connection with this cancellation and conversion is intended
to replicate the value of interests the individual has in the stock
option plan and such valuation will be based on assumptions approved by
the Board and an appropriate option pricing model (e.g., Black
Scholes), which will be selected by the Board.\3\
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    \2\ As a result of allowing each individual employee to make the
choice whether to convert his or her options, Applicant anticipates
that options will remain outstanding once the cancellation and
conversion are completed.
    \3\ The opportunity to convert options into shares of Restricted
Stock will be offered to employees through a tender offer process
and employees will be provided with the disclosure that is required
by Schedule TO under the Securities Exchange Act of 1934 (the
``Exchange Act''). The same pricing model will be used for all of
Applicant's employees and officers.
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    4. Applicant believes that its successful operation depends on its
ability to offer compensation packages to its professionals that are
competitive with those offered by its competitors and other investment
management businesses. Applicant believes its ability to offer a
compensation plan providing for the periodic issuance of shares of
Restricted Stock is vital to its future growth and success. Applicant
wishes to adopt an equity-based compensation plan (the ``Plan'') for
its employees as well as employees of its wholly-owned subsidiaries
(the ``Participants'').
    5. The Plan will authorize the issuance of shares of Restricted
Stock subject to certain forfeiture restrictions. These restrictions
may relate to continued employment (lapsing either on an annual or
other periodic basis or on a ``cliff'' basis, i.e., at the end of a
stated period of time), the performance of Applicant, or other
restrictions deemed by the Board to be appropriate. The Restricted
Stock will be subject to restrictions on transferability and other
restrictions as required by the Board. The Restricted Stock will not be
transferable except for disposition by gift, will or intestacy. Except
to the extent restricted under the terms of the Plan, a Participant
granted Restricted Stock will have all the rights of any other
shareholder, including the right to vote the Restricted Stock and the
right to receive dividends. During the restriction period, the
Restricted Stock generally may not be sold, transferred, pledged,
hypothecated, margined, or otherwise encumbered by the Participant.
Except as the Board otherwise determines, upon termination of a
Participant's employment during the applicable restriction period,
Restricted Stock for which forfeiture restrictions have not lapsed at
the time of such termination shall be forfeited.
    6. The maximum amount of Restricted Stock that may be issued under
the Plan will be 10% of the outstanding shares of common stock of
Applicant on the effective date of the Plan plus 10% of the number of
shares of Applicant's common stock issued or delivered by Applicant
(other than pursuant to compensation plans) during the term of the
Plan.\4\ The Plan limits the total number of shares that may be awarded
to any single Participant in a single year to 300,000 shares. In
addition, no Participant may be granted more than 25% of the shares
reserved for issuance under the Plan. Upon the recommendation of the
compensation committee of the Board (the ``Committee'') which is
comprised solely of non-interested directors, the Board will award
shares of Restricted Stock to the Participants from time to time as
part of the Participants' compensation based on a Participant's actual
or expected performance and value to Applicant.
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    \4\ For purposes of calculating compliance with this limit,
Applicant will count as Restricted Stock all shares of Applicant's
common stock that are issued pursuant to the Plan (including any
shares issued in connection with the termination of its stock option
plan) less any shares that are forfeited back to Applicant and
cancelled as a result of forfeiture restrictions not lapsing.
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    7. Each issuance of Restricted Stock under the Plan will be
approved by the required majority, as defined in section 57(o) of the
Act,\5\ of Applicant's directors on the basis that the issuance is in
the best interests of Applicant and its shareholders. The date on which
the required majority approves an issuance of Restricted Stock will be
deemed the date on which the subject Restricted Stock is granted. The
Plan will be submitted for approval to Applicant's shareholders and
will become effective upon such approval, subject to issuance of the
order.
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    \5\ The term ``required majority,'' when used with respect to
the approval of a proposed transaction, plan, or arrangement, means
both a majority of a BDC's directors or general partners who have no
financial interest in such transaction, plan, or arrangement and a
majority of such directors or general partners who are not
interested persons of such company.
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Applicant's Legal Analysis

Sections 23(a) and (b), Section 63

    1. Under section 63 of the Act, the provisions of section 23(a) of
the Act generally prohibiting a registered closed-end investment
company from issuing securities for services or for property other than
cash or securities are made applicable to BDCs. This provision would
prohibit the issuance of Restricted Stock as a part of the Plan.
    2. Section 23(b) generally prohibits a closed-end management
investment company from selling its common stock at a price below its
current net asset value (``NAV''). Section 63(2) makes section 23(b)
applicable to BDCs unless certain conditions are met. Because
Restricted Stock that would be granted under the Plan would not meet
the terms of section 63(2), sections 23(b)

and 63 would prevent the issuance of the Restricted Stock.
    3. Section 6(c) provides that the Commission may, by order upon
application, conditionally or unconditionally exempt any person,
security, or transaction, or any class or classes of persons,
securities or transactions, from any provision of the Act, if and to
the extent that the 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.
    4. Applicant requests an order pursuant to section 6(c) of the Act
granting an exemption from the provisions of sections 23(a) and (b) and
section 63 of the Act. Applicant states that the concerns underlying
those sections include: (i) preferential treatment of investment
company insiders and the use of options and other rights by insiders to
obtain control of the investment company; (ii) complication of the
investment company's structure that makes it difficult to determine the
value of the company's shares; and (iii) dilution of shareholders'
equity in the investment company. Applicant states that the Plan does
not raise the concern about preferential treatment of Applicant's
insiders because the Plan is a bona fide employee compensation plan of
the type that is common among corporations generally. In addition,
section 61(a)(3) of the Act permits a BDC to issue to its officers,
directors and employees, pursuant to an executive compensation plan,
warrants, options and rights to purchase the BDC's voting securities,
subject to certain requirements. Applicant states that, for reasons
that are unclear, section 61 and its legislative history do not address
the issuance by a BDC of restricted stock as incentive compensation.
Applicant states, however, that the issuance of Restricted Stock is
substantially similar, for purposes of investor protection under the
Act, to the issuance of warrants, options, and rights as contemplated
by section 61. Applicant also asserts that the Plan would not become a
means for insiders to obtain control of Applicant because the number of
shares of Applicant issuable under the Plan would be limited as set
forth in the application. Moreover, no individual Participant could be
issued more than 25% of the shares reserved for issuance under the
Plan. Applicant's current intention, subject to the receipt of the
order, is to discontinue its stock option plan and offer all employees
holding outstanding options the opportunity to cancel those options in
exchange for shares of Restricted Stock. If, however, Applicant chooses
to reinstate the stock option plan (or adopt another such plan) and
issues stock options in the future, it will do so pursuant to section
61 and in compliance with the terms and conditions of the application.
    5. Applicant further states that the Plan will not unduly
complicate Applicant's structure because equity-based employee
compensation arrangements are widely used among corporations and
commonly known to investors. Applicant notes that the Plan will be
submitted to Applicant's shareholders for their approval. Applicant
represents that a concise, ``plain English'' description of the Plan,
including its potential dilutive effect, will be provided in the proxy
materials that will be submitted to Applicant's shareholders. Applicant
also states that it will comply with the proxy disclosure requirements
in Item 10 of Schedule 14A under the Exchange Act. Applicant further
notes that the Plan will be disclosed to investors in accordance with
the requirements of the Form N-2 registration statement for closed-end
investment companies, and pursuant to the standards and guidelines
adopted by the Financial Accounting Standards Board for operating
companies. In addition, Applicant will comply with the disclosure
requirements for executive compensation plans under the Exchange
Act.\6\ Applicant thus concludes that the Plan will be adequately
disclosed to investors and appropriately reflected in the market value
of Applicant's shares.
---------------------------------------------------------------------------

    \6\ Applicant will comply with the amendments to the disclosure
requirements for executive and director compensation, related party
transactions, director independence and other corporate governance
matters, and security ownership of officers and directors to the
extent adopted and applicable to BDCs. See Executive Compensation
and Related Party Disclosure, Securities Act Release No. 8655 (Jan.
27, 2006) (proposed rule); Executive Compensation and Related Party
Disclosure, Securities Act Release No. 8732A (Aug. 29, 2006) (final
rule and proposed rule), as amended by Executive Compensation
Disclosure, Securities Act Release No. 8765 (Dec. 22, 2006) (adopted
as interim final rules with request for comments).
---------------------------------------------------------------------------

    6. Applicant acknowledges that, while awards granted under the Plan
would have a dilutive effect on the shareholders' equity in Applicant,
that effect would be outweighed by the anticipated benefits of the Plan
to Applicant and its shareholders. Applicant asserts that it needs the
flexibility to provide the requested equity-based employee compensation
in order to be able to compete effectively with other financial
services firms for talented professionals. These professionals,
Applicant suggests, in turn are likely to increase Applicant's
performance and shareholder value. Applicant also asserts that equity-
based compensation would more closely align the interests of
Applicant's employees with those of Applicant's shareholders. In
addition, Applicant states that Applicant's shareholders will be
further protected by the conditions to the requested order that assure
continuing oversight of the operation of the Plan by Applicant's Board.

Section 57(a)(4), Rule 17d-1

    7. Section 57(a) proscribes certain transactions between a BDC and
persons related to the BDC in the manner described in section 57(b)
(``57(b) persons''), absent a Commission order. Section 57(a)(4)
generally prohibits a 57(b) person from effecting a transaction in
which the BDC is a joint participant absent such an order. Rule 17d-1,
made applicable to BDCs by section 57(i), proscribes participation in a
``joint enterprise or other joint arrangement or profit-sharing plan,''
which includes a stock option or purchase plan. Employees and directors
of a BDC are 57(b) persons. Thus, the issuance of shares of Restricted
Stock could be deemed to involve a joint transaction involving a BDC
and a 57(b) person in contravention of section 57(a)(4). Rule 17d-1(b)
provides that, in considering relief pursuant to the rule, the
Commission will consider (i) whether the participation of the company
in a joint enterprise is consistent with the Act's policies and
purposes and (ii) the extent to which that participation is on a basis
different from or less advantageous than that of other participants.
    8. Applicant requests an order pursuant to section 57(a)(4) and
rule 17d-1 to permit the Plan. Applicant states that the Plan, although
benefiting the Participants and Applicant in different ways, are in the
interests of Applicant's shareholders because the Plan will help
Applicant attract and retain talented professionals, help align the
interests of Applicant's employees with those of its shareholders, and
in turn help produce a better return to Applicant's shareholders.

Applicant's Conditions

    Applicant agrees that the order granting the requested relief will
be subject to the following conditions:
    1. The Plan will be approved by Applicant's shareholders in
accordance with section 61(a)(3)(A)(iv) of the Act.
    2. Each issuance of Restricted Stock to officers and employees will
be approved by the required majority, as defined in section 57(o) of
the Act, of Applicant's directors on the basis that such issuance

is in the best interests of Applicant and its shareholders.
    3. The amount of voting securities that would result from the
exercise of all of Applicant's outstanding warrants, options, and
rights, together with any Restricted Stock issued pursuant to the Plan,
at the time of issuance shall not exceed 25% of the outstanding voting
securities of Applicant, except that if the amount of voting securities
that would result from the exercise of all of Applicant's outstanding
warrants, options, and rights issued to Applicant's directors,
officers, and employees, together with any Restricted Stock issued
pursuant to the Plan, would exceed 15% of the outstanding voting
securities of Applicant, then the total amount of voting securities
that would result from the exercise of all outstanding warrants,
options, and rights, together with any Restricted Stock issued pursuant
to the Plan, at the time of issuance shall not exceed 20% of the
outstanding voting securities of Applicant.
    4. The maximum amount of Restricted Stock that may be issued under
the Plan will be 10% of the outstanding shares of common stock of
Applicant on the effective date of the Plan plus 10% of the number of
shares of Applicant's common stock issued or delivered by Applicant
(other than pursuant to compensation plans) during the term of the
Plan.
    5. The Board will review periodically the potential impact that the
issuance of Restricted Stock under the Plan could have on Applicant's
earnings and NAV per share, such review to take place prior to any
decisions to grant Restricted Stock under the Plan, but in no event
less frequently than annually. Adequate procedures and records will be
maintained to permit such review. The Board will be authorized to take
appropriate steps to ensure that the grant of Restricted Stock under
the Plan would not have an effect contrary to the interests of
Applicant's shareholders. This authority will include the authority to
prevent or limit the granting of additional Restricted Stock under the
Plan. All records maintained pursuant to this condition will be subject
to examination by the Commission and its staff.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-4178 Filed 3-4-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Notices]
[Pages 74245-74247]
[FR Doc No: 2012-30050]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30295; 812-14013]

ING Investments, LLC, et al.; Notice of Application

December 6, 2012.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order under section 17(d) of the
Investment Company Act of 1940 (``Act'') and rule 17d-1 under the Act.

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Summary of Application: Applicants request an order to permit certain
registered open-end investment companies in the same group of
investment companies to enter into a special servicing agreement
(``Special Servicing Agreement'').

Applicants: ING Investments, LLC (``IIL''), Directed Services LLC
(``DSL'') and ING Investment Management Co. LLC (``IIM'') (each, an
``Adviser,'' and collectively, the ``Advisers'') and ING Balanced
Portfolio, Inc., ING Equity Trust, ING Funds Trust, ING Intermediate
Bond Portfolio, ING Investors Trust, ING Mayflower Trust, ING Money
Market Portfolio, ING Mutual Funds, ING Partners, Inc., ING Separate
Portfolios Trust, ING Series Fund, Inc., ING Strategic Allocation
Portfolios, Inc., ING Variable Funds, ING Variable Portfolios, Inc.,
ING Variable Insurance Trust and ING Variable Products Trust
(collectively, the ``Registrants'') and the series thereof (the
Registrants and their series, collectively with the Advisers, the
``Applicants.'').\1\
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    \1\ All entities that currently intend to rely on the order have
been named as applicants. Any other entity that relies on the order
in the future will comply with the terms and conditions of the
application.

Filing Dates: The application was filed on March 9, 2012, and amended
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on June 18, 2012, and October 26, 2012.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on December 31, 2012, 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: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants,
Huey P. Falgout, Jr., Chief Counsel, ING Funds, 7337 East Doubletree
Ranch Road, Suite 100, Scottsdale, Arizona 85255.

FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Senior Counsel, at
(202) 551-6868, or Daniele Marchesani, 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 Advisers are investment advisers registered under the
Investment Advisers Act of 1940 and serve as investment advisers to the
Funds. Each Adviser is a direct or indirect subsidiary of ING Groep,
N.V.
    2. Each Registrant is registered under the Act as an open-end
management investment company. Certain of the Funds, as defined below,
currently serve, and others in the future may serve, in ``fund-of-
funds'' arrangements whereby a Fund (each, a ``Top-Tier Fund,'' and
collectively, the ``Top-Tier Funds'') invests their assets in other
Funds (``Underlying Funds'').\2\
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    \2\ The Top-Tier Funds will not be Underlying Funds. Exhibit A
to the application identifies the current Top-Tier Funds and
Underlying Funds.
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    3. Applicants request that the order also apply to each existing or
future registered open-end management investment company or series
thereof that is part of the same ``group of investment companies'' as
the Registrants under Section 12(d)(1)(G)(ii) of the Act, and is
advised or sub-advised now or in the future by an Adviser or any entity
controlling, controlled by, or under common control with an Adviser
(such entity included in the term ``Adviser'' and such investment
companies or series thereof, collectively with the Registrants and
their series, the ``Funds'').
    4. Applicants propose that the Funds enter into a Special Servicing

Agreement that would allow an Underlying Fund to bear the expenses of a
Top-Tier Fund (other than investment management fees, rule 12b-1 fees
and class-specific administrative service fees). Under the Special
Servicing Agreement, each Underlying Fund will bear expenses of a Top-
Tier Fund in proportion to the estimated benefits to the Underlying
Fund arising from the investment in the Underlying Fund by the Top-Tier
Fund (``Underlying Fund Benefits'').
    5. Applicants state that the Underlying Fund Benefits are expected
to result primarily from the incremental increase in assets resulting
from investments in the Underlying Funds by the Top-Tier Funds and the
large size of a Top-Tier Fund's holdings of shares in a shareholder
account relative to the average size of the share balances held in
other Underlying Fund shareholder accounts. A Top-Tier Fund's
shareholder account will experience fewer shareholder transactions and
greater predictability of transaction activity than other shareholder
accounts. As a result, the shareholder servicing costs to any
Underlying Fund for servicing one account registered to a Top-Tier Fund
will be significantly less than the cost to that same Underlying Fund
of servicing the same pool of assets contributed by a large group of
shareholders owning relatively small accounts in one or more Underlying
Funds. In addition, by reducing Top-Tier Fund expenses, the Special
Servicing Agreement may lead to increased assets being invested in the
Top-Tier Funds, which in turn would lead to increased assets being
invested in the Underlying Funds. Further, increased assets could
enable the Underlying Funds to control and reduce their expense ratios
because their operating expenses will be spread over a larger asset
base.
    6. No Fund will enter into a Special Servicing Agreement unless the
Special Servicing Agreement: (a) Precisely describes the services
provided to the Top-Tier Funds and the expenses incurred by a Top-Tier
Fund that may be reimbursed by an Underlying Fund (``Underlying Fund
Payments''); (b) provides that no affiliated person of the Top-Tier
Funds, or affiliated person of such person, will receive, directly or
indirectly, any portion of the Underlying Fund Payments; (c) provides
that the Underlying Fund Payments may not exceed the amount of actual
expenses incurred by the Top-Tier Funds; (d) provides that no
Underlying Fund will reimburse transfer agent expenses of a Top-Tier
Fund, including out-of-pocket expenses and other expenses, at a rate in
excess of the average per account transfer agent expenses of the
Underlying Fund, including out-of-pocket and other expenses, expressed
as a basis point charge (for purposes of calculating the Underlying
Fund's average per account transfer agent expense, the Top-Tier Fund's
investment in the Underlying Fund will be excluded); and (e) has been
approved by the Fund's board of trustees (``Board''), including a
majority of trustees who are not ``interested persons'' (within the
meaning of section 2(a)(19) of the Act) (``Independent Directors/
Trustees''), as being in the best interests of any Fund and its
shareholders and not involving overreaching on the part of any person
concerned.

Applicants' Legal Analysis

    1. Section 17(d) of the Act and rule 17d-1 under the Act provide
that an affiliated person of, or a principal underwriter for, a
registered investment company, or an affiliate of such person or
principal underwriter, acting as principal, shall not participate in,
or effect any transaction in connection with, any joint enterprise or
other joint arrangement in which the registered investment company is a
participant unless the Commission has issued an order approving the
arrangement. Each Adviser, as investment adviser, is an affiliated
person of each of the Underlying Funds and Top-Tier Funds, which in
turn could be deemed to be under common control of the Advisers and
therefore affiliated persons of each other. The Top-Tier Funds and the
Underlying Funds also may be affiliated persons by virtue of a Top-Tier
Fund's ownership of more than 5% of the outstanding voting securities
of an Underlying Fund. Consequently, the Special Servicing Agreement
could be deemed to be a joint transaction among the Top-Tier Funds, the
Underlying Funds and Advisers.
    2. Rule 17d-1 under the Act provides that, in passing upon a joint
arrangement under the rule, the Commission will consider whether
participation of the investment company in the joint enterprise or
joint arrangement on the basis proposed is consistent with the
provisions, policies, and purposes of the Act and the extent to which
the participation is on a basis different from or less advantageous
than that of other participants.
    3. Applicants request an order under section 17(d) and rule 17d-1
to permit the proposed expense sharing arrangements. Applicants state
that participation by the Top-Tier Funds, the Underlying Funds and
Advisers in the proposed expense sharing arrangements is consistent
with the provisions, policies and purposes of the Act, and that the
terms of the Special Servicing Agreement and the conditions set forth
below will ensure that no participant will participate on a basis less
advantageous than that of other participants.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will
be subject to the following conditions:
    1. No Fund will enter into a Special Servicing Agreement unless the
Special Servicing Agreement: (a) Precisely describes the services
provided to the Top-Tier Funds and the Underlying Fund Payments; (b)
provides that no affiliated person of the Top-Tier Funds, or affiliated
person of such person, will receive, directly or indirectly, any
portion of the Underlying Fund Payments; (c) provides that the
Underlying Fund Payments may not exceed the amount of actual expenses
incurred by the Top-Tier Funds; (d) provides that no Underlying Fund
will reimburse transfer agent expenses of a Top-Tier Fund, including
out-of-pocket expenses and other expenses, at a rate in excess of the
average per account transfer agent expenses of the Underlying Fund,
including out-of-pocket expenses and other expenses, expressed as a
basis point charge (for purposes of calculating the Underlying Fund's
average per account transfer agent expense, the Top-Tier Funds'
investment in the Underlying Fund will be excluded); and (e) has been
approved by the Funds' Board, including a majority of the Independent
Directors/Trustees, as being in the best interests of the Fund and its
shareholders and not involving overreaching on the part of any person
concerned.
    2. In approving a Special Servicing Agreement, the Board of an
Underlying Fund will consider, without limitation: (a) The reasons for
the Underlying Fund's entering into the Special Servicing Agreement;
(b) information quantifying the Underlying Fund Benefits; (c) the
extent to which investors in the Top-Tier Fund could have purchased
shares of the Underlying Fund; (d) the extent to which an investment in
the Top-Tier Fund represents or would represent a consolidation of
accounts in the Underlying Funds, through exchanges or otherwise, or a
reduction in the rate of increase in the number of accounts in the
Underlying Funds; (e) the extent to which the expense ratio of the
Underlying Fund was reduced following investment in the Underlying Fund
by

the Top-Tier Fund and the reasonably foreseeable effects of the
investment by the Top-Tier Fund on the Underlying Fund's expense ratio;
(f) the reasonably foreseeable effects of participation in the Special
Servicing Agreement on the Underlying Fund's expense ratio; and (g) any
conflicts of interest that the Advisers, any affiliated person of the
Advisers, or any other affiliated person of the Underlying Fund may
have relating to the Underlying Fund's participation in the Special
Servicing Agreement.
    3. Prior to approving a Special Servicing Agreement on behalf of an
Underlying Fund, the Board of the Underlying Fund, including a majority
of the Independent Directors/Trustees, will determine that: (a) The
Underlying Fund Payments under the Special Servicing Agreement are
expenses that the Underlying Fund would have incurred if the
shareholders of the Top-Tier Fund had instead purchased shares of the
Underlying Fund through the same broker-dealer or other financial
intermediary; (b) the amount of the Underlying Fund Payments is less
than the amount of Underlying Fund Benefits; and (c) by entering into
the Special Servicing Agreement, the Underlying Fund is not engaging,
directly or indirectly, in financing any activity which is primarily
intended to result in the sale of shares issued by the Underlying Fund.
    4. In approving a Special Servicing Agreement, the Board of a Fund
will request and evaluate, and Advisers will furnish, such information
as may reasonably be necessary to evaluate the terms of the Special
Servicing Agreement and the factors set forth in condition 2 above, and
make the determinations set forth in conditions 1 and 3 above.
    5. Approval by the Fund's Board, including a majority of the
Independent Directors/Trustees, in accordance with conditions 1 through
4 above, will be required at least annually after the Fund's entering
into a Special Servicing Agreement and prior to any material amendment
to a Special Servicing Agreement.
    6. To the extent Underlying Fund Payments are treated, in whole or
in part, as a class expense of an Underlying Fund, or are used to pay a
class-based expense of a Top-Tier Fund, conditions 1 through 5 above
must be met with respect to each class of a Fund as well as the Fund as
a whole.
    7. Each Fund will maintain and preserve the Board's findings and
determinations set forth in conditions 1 and 3 above, and the
information and considerations on which they were based, for the
duration of the Special Servicing Agreement, and for a period not less
than six years thereafter, the first two years in an easily accessible
place.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Kevin M. O'Neill,
 Deputy Secretary.
[FR Doc. 2012-30050 Filed 12-12-12; 8:45 am]
BILLING CODE 8011-01-P