[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Notices]
[Pages 12040-12045]
[FR Doc No: 2021-04075]

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

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34202; 812-15120]

Star Mountain Credit Opportunities Fund, LP, et al.

February 23, 2021.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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

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

Summary of Application:  Applicants request an order to permit certain
business development companies (``BDCs'') and closed-end management
investment companies to co-invest in portfolio companies with each
other and with certain affiliated investment funds.

Applicants:  Star Mountain Credit Opportunities Fund, LP (the
``Fund''); Star Mountain Fund Management, LLC (the ``BDC Adviser), on
behalf of itself and its successors; \1\ Star Mountain Diversified
Small Business Access Fund II, LP, Star Mountain Diversified Small
Business Access Fund II-A, LP, Star Mountain Diversified Credit Income
Fund III, LP, Star Mountain--PA Small Business Co-Investment Platform,
LP, Star Mountain--PA Small Business Co-Investment Platform II, LP,
Star Mountain--PA Holdings I, LTD, Star Mount U.S. Lower Middle-Market
Secondary Fund II, LP and Star Mountain SBIC Fund, LP (collectively,
the ``Existing Affiliated Funds'').
---------------------------------------------------------------------------

    \1\ The term ``successor'', as applied to each Adviser (as
defined below), means an entity that results from a reorganization
into another jurisdiction or change in the type of business
organization.

Filing Dates:  The application was filed on April 3, 2020 and amended
---------------------------------------------------------------------------
on July 29, 2020 and November 25, 2020.

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 emailing the Commission's
Secretary at<EMAIL_ADDRESS>and serving applicants with a
copy of the request by email. Hearing requests should be received by
the Commission by 5:30 p.m. on March 22, 2021, and should be
accompanied by proof of service on applicants, in the form of an
affidavit or, for lawyers, a certificate of service. Pursuant to rule
0-

5 under the Act, hearing requests should state the nature of the
writer's interest, any facts bearing upon the desirability of a hearing
on the matter, the reason for the request, and the issues contested.
Persons who wish to be notified of a hearing may request notification
by emailing the Commission's Secretary at<EMAIL_ADDRESS>
ADDRESSES: Secretary, U.S. Securities and Exchange Commission,
<EMAIL_ADDRESS>Applicants:
<EMAIL_ADDRESS>and 4b192228232a392f65232439243c223f310b2f2e28232e393f65282426.

FOR FURTHER INFORMATION CONTACT: Barbara T. Heussler, Senior Counsel,
at<PHONE_NUMBER> or Trace W. Rakestraw, Branch Chief, at (202) 551-
6825 (Division of Investment Management, Chief Counsel's Office).

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

Applicants' Representations

    1. The Fund is a Delaware limited partnership that will convert to
a Delaware corporation that is a non-diversified, closed-end management
investment company and intends to elect to be regulated as a business
development company (``BDC'') under section 54(a) of the Act.\2\ The
Fund's investment objective is to create a diversified and current
yielding portfolio composed primarily of senior and subordinated loans
with equity upside investments in the U.S. small and medium-sized
business (``SMBs'') market segment. The Fund invests primarily in
privately negotiated loans and equity investments to SMBs generally
with annual revenues greater than $15 million and earnings before
interest, taxes, depreciation and amortization of less than $50
million. The Fund generates revenues primarily through receipt of
interest income from the investments it holds. The board of directors
(the ``Board'') \3\ of the Fund will be comprised of five directors,
three of whom are not ``interested persons,'' within the meaning of
section 2(a)(19) of the Act (``Non-Interested Directors''). Prior to
relying on the requested Order, the Fund will have filed an election to
be regulated as a BDC under the Act.
---------------------------------------------------------------------------

    \2\ 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.
    \3\ The term ``Board'' refers to the board of directors of any
Regulated Fund.
---------------------------------------------------------------------------

    2. The BDC Adviser is a limited liability company organized under
the laws of the State of Delaware and is registered with the Commission
under the Investment Advisers Act of 1940 (the ``Advisers Act''). The
BDC Adviser serves as the investment adviser to the Fund and each of
the Existing Affiliated Funds.
    3. The Existing Affiliated Funds pursue strategies focused on
investing in senior and subordinated loans with equity upside
investments in U.S. small and medium-sized businesses. Each Existing
Affiliated Fund is an entity whose investment adviser is the BDC
Adviser and that would be an investment company but for section 3(c)(1)
or 3(c)(7) of the Act.
    4. Applicants seek an order (``Order'') to permit a Regulated Fund
\4\ and one or more other Regulated Funds and/or one or more Affiliated
Funds \5\ to participate in the same investment opportunities through a
proposed co-investment program (the ``Co-Investment Program'') where
such participation would otherwise be prohibited under section 17(d)
and/or section 57(a)(4) and rule 17d-1 by (a) co-investing with each
other in securities issued by issuers in private placement transactions
in which an Adviser negotiates terms in addition to price; \6\ and (b)
making additional investments in securities of such issuers, including
through the exercise of warrants, conversion privileges, and other
rights to purchase securities of the issuers (``Follow-On
Investments''). ``Co-Investment Transaction'' means any transaction in
which a Regulated Fund (or its Wholly-Owned Investment Sub, as defined
below) participates together with one or more other Regulated Funds
and/or one or more Affiliated Funds in reliance on the requested Order.
``Potential Co-Investment Transaction'' means any investment
opportunity in which a Regulated Fund (or its Wholly-Owned Investment
Sub) could not participate together with one or more Affiliated Funds
and/or one or more other Regulated Funds without obtaining and relying
on the Order.\7\
---------------------------------------------------------------------------

    \4\ ``Regulated Fund'' means the Fund and any Future Regulated
Fund. ``Future Regulated Fund'' means any closed-end management
investment company (a) that is registered under the Act or has
elected to be regulated as BDC, (b) whose investment adviser is an
Adviser, and (c) that intends to participate in the Co-Investment
Program. The term ``Adviser'' means the BDC Adviser and any future
investment adviser that (i) controls, is controlled by, or is under
common control with the BDC Adviser and (ii) is registered as an
investment adviser under the Advisers Act.
    \5\ ``Affiliated Fund'' means the Existing Affiliated Funds and
any entity (a) whose investment adviser is an Adviser, (b) that
would be an investment company but for section 3(c)(1) or 3(c)(7) of
the Act, and (c) that intends to participate in the Co-Investment
Program.
    \6\ The term ``private placement transactions'' means
transactions in which the offer and sale of securities by the issuer
are exempt from registration under the Securities Act of 1933 (the
``Securities Act'').
    \7\ All existing entities that currently intend to rely upon the
requested Order have been named as applicants. Any other existing or
future entity that subsequently relies on the Order will comply with
the terms and conditions of the application.
---------------------------------------------------------------------------

    5. Applicants state that any of the Regulated Funds may, from time
to time, form a Wholly-Owned Investment Sub.\8\ Such a subsidiary would
be prohibited from investing in a Co-Investment Transaction with any
Affiliated Fund or Regulated Fund because it would be a company
controlled by its parent Regulated Fund for purposes of section
57(a)(4) of the Act and rule 17d-1 under the Act. Applicants request
that each Wholly-Owned Investment Sub be permitted to participate in
Co-Investment Transactions in lieu of its parent Regulated Fund and
that the Wholly-Owned Investment Sub's participation in any such
transaction be treated, for purposes of the Order, as though the parent
Regulated Fund were participating directly. Applicants represent that
this treatment is justified because a Wholly-Owned Investment Sub would
have no purpose other than serving as a holding vehicle for the
Regulated Fund's investments and, therefore, no conflicts of interest
could arise between the Regulated Fund and the Wholly-Owned Investment
Sub. The Regulated Fund's Board would make all relevant determinations
under the conditions with regard to a Wholly-Owned Investment Sub's
participation in a Co-Investment Transaction, and the Regulated Fund's
Board would be informed of, and take into consideration, any proposed
use of a Wholly-Owned Investment Sub in the Regulated Fund's place. If
the Regulated Fund proposes to participate in the

same Co-Investment Transaction with any of its Wholly-Owned Investment
Subs, the Board will also be informed of, and take into consideration,
the relative participation of the Regulated Fund and the Wholly-Owned
Investment Sub.
---------------------------------------------------------------------------

    \8\ The term ``Wholly-Owned Investment Sub'' means an entity (i)
that is wholly-owned by a Regulated Fund (with the Regulated Fund at
all times holding, beneficially and of record, 100 percent of the
voting and economic interests); (ii) whose sole business purpose is
to hold one or more investments on behalf of the Regulated Fund;
(iii) with respect to which the Regulated Fund's Board has the sole
authority to make all determinations with respect to the entity's
participation under the conditions of the application; and (iv) that
would be an investment company but for section 3(c)(1) or 3(c)(7) of
the Act. All subsidiaries participating in Co-Investment
Transactions will be Wholly-Owned Investment Subs and will have
Objectives and Strategies (as defined below) that are either the
same as, or a subset of, their parent Regulated Fund's Objectives
and Strategies.
---------------------------------------------------------------------------

    6. When considering Potential Co-Investment Transactions for any
Regulated Fund, the applicable Adviser will consider only the
Objectives and Strategies,\9\ investment policies, investment
positions, capital available for investment,\10\ and other pertinent
factors applicable to that Regulated Fund. The Regulated Fund's Adviser
expects that any portfolio company that is an appropriate investment
for a Regulated Fund should also be an appropriate investment for one
or more other Regulated Funds and/or one or more Affiliated Funds, with
certain exceptions based on capital available for investment or
diversification. The Board of each Regulated Fund, including the Non-
Interested Directors, has determined, or will have determined, that it
is in the best interests of the Regulated Fund to participate in Co-
Investment Transactions.\11\
---------------------------------------------------------------------------

    \9\ ``Objectives and Strategies'' means a Regulated Fund's
investment objectives and strategies, as described in the Regulated
Fund's registration statement on Form N-2, other filings the
Regulated Fund has made with the Commission under the Securities
Act, or under the Securities Exchange Act of 1934, and the Regulated
Fund's reports to shareholders.
    \10\ The amount of each Regulated Fund's capital available for
investment will be determined based on the amount of cash on hand,
existing commitments and reserves, if any, the targeted leverage
level, targeted asset mix and other investment policies and
restrictions set from time to time by the Board of the applicable
Regulated Fund or imposed by applicable laws, rules, regulations or
interpretations.
    \11\ The Regulated Funds, however, will not be obligated to
invest, or co-invest, when investment opportunities are referred to
them.
---------------------------------------------------------------------------

    7. Other than pro rata dispositions and Follow-On Investments as
provided in conditions 7 and 8, and after making the determinations
required in conditions 1 and 2(a), the Adviser will present each
Potential Co-Investment Transaction and the proposed allocation to the
directors of the Board eligible to vote on that Co-Investment
Transaction under section 57(o) of the Act (``Eligible Directors''),
and the required majority of such directors of the Board, as defined in
section 57(o) of the Act (``Required Majority'') \12\ will approve each
Co-Investment Transaction prior to any investment by the participating
Regulated Fund.
---------------------------------------------------------------------------

    \12\ In the case of a Regulated Fund that is a registered
closed-end fund, the Board members that make up the Required
Majority will be determined as if the Regulated Fund were a BDC
subject to section 57(o).
---------------------------------------------------------------------------

    8. With respect to the pro rata dispositions and Follow-On
Investments provided in conditions 7 and 8, a Regulated Fund may
participate in a pro rata disposition or Follow-On Investment without
obtaining prior approval of the Required Majority if, among other
things: (i) The proposed participation of each Regulated Fund and
Affiliated Fund in such disposition or Follow-On Investment is
proportionate to its outstanding investments in the issuer immediately
preceding the disposition or Follow-On Investment, as the case may be;
and (ii) the Board of the Regulated Fund has approved that Regulated
Fund's participation in pro rata dispositions and Follow-On Investments
as being in the best interests of the Regulated Fund. If the Board does
not so approve, any such disposition or Follow-On Investment will be
submitted to the Regulated Fund's Eligible Directors. The Board of any
Regulated Fund may at any time rescind, suspend or qualify its approval
of pro rata dispositions and Follow-On Investments with the result that
all dispositions and/or Follow-On Investments must be submitted to the
Eligible Directors.
    9. No Non-Interested Director of a Regulated Fund will have a
financial interest in any Co-Investment Transaction, other than
indirectly through share ownership in one of the Regulated Funds.
    10. If the Advisers, their principal owners (the ``Principals''),
or any person controlling, controlled by, or under common control with
the Advisers or the Principals, and the Affiliated Funds (collectively,
the ``Holders'') own in the aggregate more than 25 percent of the
outstanding voting shares of a Regulated Fund (the ``Shares''), then
the Holders will vote such Shares as required under condition 14.

Applicants' Legal Analysis

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
affiliated persons of a registered investment company from
participating in joint transactions with the company unless the
Commission has granted an order permitting such transactions. In
passing upon applications under rule 17d-1, the Commission considers
whether the company's participation in the joint transaction is
consistent with the provisions, policies, and purposes of the Act and
the extent to which such participation is on a basis different from or
less advantageous than that of other participants.
    2. Similarly, with regard to BDCs, section 57(a)(4) of the Act
generally prohibits certain persons specified in section 57(b) from
participating in joint transactions with the BDC or a company
controlled by the BDC in contravention of rules as prescribed by the
Commission. Section 57(i) of the Act provides that, until the
Commission prescribes rules under section 57(a)(4), the Commission's
rules under section 17(d) of the Act applicable to registered closed-
end investment companies will be deemed to apply to transactions
subject to section 57(a)(4). Because the Commission has not adopted any
rules under section 57(a)(4), rule 17d-1 also applies to joint
transactions with Regulated Funds that are BDCs.
    3. Applicants state that in the absence of the requested relief, in
some circumstances the Regulated Funds would be limited in their
ability to participate in attractive and appropriate investment
opportunities. Applicants believe that the proposed terms and
conditions set forth in the application ensure that the proposed Co-
Investment Transactions are consistent with the protection of each
Regulated Fund's shareholders and with the purposes intended by the
policies and provisions of the Act. Applicants believe that the
participation of the Regulated Funds in the Co-Investment Transactions
done in accordance with the proposed terms and conditions would be
consistent with the provisions, policies, and purposes of the Act and
would be done in a manner that was not different from, or less
advantageous than, the other participants.

Applicants' Conditions

    Applicants agree that the Order shall be subject to the following
conditions:
    1. Each time an Adviser considers a Potential Co-Investment
Transaction for an Affiliated Fund or another Regulated Fund that falls
within a Regulated Fund's then-current Objectives and Strategies, the
Regulated Fund's Adviser will make an independent determination of the
appropriateness of the investment for such Regulated Fund in light of
the Regulated Fund's then-current circumstances.
    2.(a) If the Adviser deems a Regulated Fund's participation in any
Potential Co-Investment Transaction to be appropriate for the Regulated
Fund, it will then determine an appropriate level of investment for the
Regulated Fund.
    (b) If the aggregate amount recommended by the applicable Adviser
to be invested by the applicable Regulated Fund in the Potential Co-
Investment Transaction, together with the amount proposed to be
invested by

the other participating Regulated Funds and Affiliated Funds,
collectively, in the same transaction, exceeds the amount of the
investment opportunity, the investment opportunity will be allocated
among them pro rata based on each participant's capital available for
investment in the asset class being allocated, up to the amount
proposed to be invested by each. The applicable Adviser will provide
the Eligible Directors of each participating Regulated Fund with
information concerning each participating party's available capital to
assist the Eligible Directors with their review of the Regulated Fund's
investments for compliance with these allocation procedures.
    (c) After making the determinations required in conditions 1 and
2(a), the applicable Adviser will distribute written information
concerning the Potential Co-Investment Transaction (including the
amount proposed to be invested by each participating Regulated Fund and
Affiliated Fund) to the Eligible Directors of each participating
Regulated Fund for their consideration. A Regulated Fund will co-invest
with one or more other Regulated Funds and/or one or more Affiliated
Funds only if, prior to the Regulated Fund's participation in the
Potential Co-Investment Transaction, a Required Majority concludes
that:
    (i) The terms of the Potential Co-Investment Transaction, including
the consideration to be paid, are reasonable and fair to the Regulated
Fund and its shareholders and do not involve overreaching in respect of
the Regulated Fund or its shareholders on the part of any person
concerned;
    (ii) the Potential Co-Investment Transaction is consistent with:
    (A) The interests of the shareholders of the Regulated Fund; and
    (B) the Regulated Fund's then-current Objectives and Strategies;
    (iii) the investment by any other Regulated Funds or Affiliated
Funds would not disadvantage the Regulated Fund, and participation by
the Regulated Fund would not be on a basis different from or less
advantageous than that of other Regulated Funds or Affiliated Funds;
provided that, if any other Regulated Fund or Affiliated Fund, but not
the Regulated Fund itself, gains the right to nominate a director for
election to a portfolio company's board of directors or the right to
have a board observer or any similar right to participate in the
governance or management of the portfolio company, such event shall not
be interpreted to prohibit the Required Majority from reaching the
conclusions required by this condition (2)(c)(iii), if:
    (A) The Eligible Directors will have the right to ratify the
selection of such director or board observer, if any;
    (B) the applicable Adviser agrees to, and does, provide periodic
reports to the Regulated Fund's Board with respect to the actions of
such director or the information received by such board observer or
obtained through the exercise of any similar right to participate in
the governance or management of the portfolio company; and
    (C) any fees or other compensation that any Affiliated Fund or any
Regulated Fund or any affiliated person of any Affiliated Fund or any
Regulated Fund receives in connection with the right of an Affiliated
Fund or a Regulated Fund to nominate a director or appoint a board
observer or otherwise to participate in the governance or management of
the portfolio company will be shared proportionately among the
participating Affiliated Funds (who each may, in turn, share its
portion with its affiliated persons) and the participating Regulated
Funds in accordance with the amount of each party's investment; and
    (iv) the proposed investment by the Regulated Fund will not benefit
the Advisers, the Affiliated Funds or the other Regulated Funds or any
affiliated person of any of them (other than the parties to the Co-
Investment Transaction), except (A) to the extent permitted by
condition 13, (B) to the extent permitted by section 17(e) or 57(k) of
the Act, as applicable, (C) indirectly, as a result of an interest in
the securities issued by one of the parties to the Co-Investment
Transaction, or (D) in the case of fees or other compensation described
in condition 2(c)(iii)(C).
    3. Each Regulated Fund has the right to decline to participate in
any Potential Co-Investment Transaction or to invest less than the
amount proposed.
    4. The applicable Adviser will present to the Board of each
Regulated Fund, on a quarterly basis, a record of all investments in
Potential Co-Investment Transactions made by any of the other Regulated
Funds or Affiliated Funds during the preceding quarter that fell within
the Regulated Fund's then-current Objectives and Strategies that were
not made available to the Regulated Fund, and an explanation of why the
investment opportunities were not offered to the Regulated Fund. All
information presented to the Board pursuant to this condition will be
kept for the life of the Regulated Fund and at least two years
thereafter, and will be subject to examination by the Commission and
its staff.
    5. Except for Follow-On Investments made in accordance with
condition 8,\13\ a Regulated Fund will not invest in reliance on the
Order in any issuer in which another Regulated Fund, Affiliated Fund,
or any affiliated person of another Regulated Fund or Affiliated Fund
is an existing investor.
---------------------------------------------------------------------------

    \13\ This exception applies only to Follow-On Investments by a
Regulated Fund in issuers in which that Regulated Fund already holds
investments.
---------------------------------------------------------------------------

    6. A Regulated Fund will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of
securities to be purchased, settlement date, and registration rights
will be the same for each participating Regulated Fund and Affiliated
Fund. The grant to an Affiliated Fund or another Regulated Fund, but
not the Regulated Fund, of the right to nominate a director for
election to a portfolio company's board of directors, the right to have
an observer on the board of directors or similar rights to participate
in the governance or management of the portfolio company will not be
interpreted so as to violate this condition 6, if conditions
2(c)(iii)(A), (B) and (C) are met.
    7.(a) If any Affiliated Fund or any Regulated Fund elects to sell,
exchange or otherwise dispose of an interest in a security that was
acquired in a Co-Investment Transaction, the applicable Advisers will:
    (i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed disposition at the earliest
practical time; and
    (ii) formulate a recommendation as to participation by each
Regulated Fund in the disposition.
    (b) Each Regulated Fund will have the right to participate in such
disposition on a proportionate basis, at the same price and on the same
terms and conditions as those applicable to the participating
Affiliated Funds and any other Regulated Fund.
    (c) A Regulated Fund may participate in such disposition without
obtaining prior approval of the Required Majority if: (i) The proposed
participation of each Regulated Fund and each Affiliated Fund in such
disposition is proportionate to its outstanding investments in the
issuer immediately preceding the disposition; (ii) the Board of the
Regulated Fund has approved as being in the best interests of the
Regulated Fund the ability to participate in such dispositions on a pro
rata basis (as described in greater detail in the

application); and (iii) the Board of the Regulated Fund is provided on
a quarterly basis with a list of all dispositions made in accordance
with this condition. In all other cases, the Adviser will provide its
written recommendation as to the Regulated Fund's participation to the
Eligible Directors, and the Regulated Fund will participate in such
disposition solely to the extent that a Required Majority determines
that it is in the Regulated Fund's best interests.
    (d) Each Affiliated Fund and each Regulated Fund will bear its own
expenses in connection with any such disposition.
    8.(a) If any Affiliated Fund or any Regulated Fund desires to make
a Follow-On Investment in a portfolio company whose securities were
acquired in a Co-Investment Transaction, the applicable Advisers will:
    (i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed transaction at the earliest
practical time; and
    (ii) formulate a recommendation as to the proposed participation,
including the amount of the proposed Follow-On Investment, by each
Regulated Fund.
    (b) A Regulated Fund may participate in such Follow-On Investment
without obtaining prior approval of the Required Majority if: (i) The
proposed participation of each Regulated Fund and each Affiliated Fund
in such investment is proportionate to its outstanding investments in
the issuer immediately preceding the Follow-On Investment; and (ii) the
Board of the Regulated Fund has approved as being in the best interests
of the Regulated Fund the ability to participate in Follow-On
Investments on a pro rata basis (as described in greater detail in the
application). In all other cases, the Adviser will provide its written
recommendation as to the Regulated Fund's participation to the Eligible
Directors, and the Regulated Fund will participate in such Follow-On
Investment solely to the extent that a Required Majority determines
that it is in the Regulated Fund's best interests.
    (c) If, with respect to any Follow-On Investment:
    (i) The amount of the opportunity is not based on the Regulated
Funds' and the Affiliated Funds' outstanding investments immediately
preceding the Follow-On Investment; and
    (ii) the aggregate amount recommended by the Adviser to be invested
by each Regulated Fund in the Follow-On Investment, together with the
amount proposed to be invested by the participating Affiliated Funds in
the same transaction, exceeds the amount of the opportunity; then the
amount invested by each such party will be allocated among them pro
rata based on each party's capital available for investment in the
asset class to be allocated, up to the amount proposed to be invested
by each.
    (d) The acquisition of Follow-On Investments as permitted by this
condition will be considered a Co-Investment Transaction for all
purposes and subject to the other conditions set forth in the
application.
    9. The Non-Interested Directors of each Regulated Fund will be
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including
investments made by other Regulated Funds and Affiliated Funds that the
Regulated Fund considered but declined to participate in, so that the
Non-Interested Directors may determine whether all investments made
during the preceding quarter, including those investments which the
Regulated Fund considered but declined to participate in, comply with
the conditions of the Order. In addition, the Non-Interested Directors
will consider at least annually the continued appropriateness for the
Regulated Fund of participating in new and existing Co-Investment
Transactions.
    10. Each Regulated Fund will maintain the records required by
section 57(f)(3) of the Act as if each of the Regulated Funds were a
BDC and each of the investments permitted under these conditions were
approved by the Required Majority under section 57(f) of the Act.
    11. No Non-Interested Director of a Regulated Fund will also be a
director, general partner, managing member or principal, or otherwise
an ``affiliated person'' (as defined in the Act) of an Affiliated Fund.
    12. The expenses, if any, associated with acquiring, holding or
disposing of any securities acquired in a Co-Investment Transaction
(including, without limitation, the expenses of the distribution of any
such securities registered for sale under the Securities Act) will, to
the extent not payable by the Advisers under their respective
investment advisory agreements with Affiliated Funds and the Regulated
Funds, be shared by the Regulated Funds and the Affiliated Funds in
proportion to the relative amounts of the securities held or to be
acquired or disposed of, as the case may be.
    13. Any transaction fee \14\ (including break-up or commitment fees
but excluding broker's fees contemplated by section 17(e) or 57(k) of
the Act, as applicable), received in connection with a Co-Investment
Transaction will be distributed to the participating Regulated Funds
and Affiliated Funds on a pro rata basis based on the amounts they
invested or committed, as the case may be, in such Co-Investment
Transaction. If any transaction fee is to be held by an Adviser pending
consummation of the transaction, the fee will be deposited into an
account maintained by such Adviser at a bank or banks having the
qualifications prescribed in section 26(a)(1) of the Act, and the
account will earn a competitive rate of interest that will also be
divided pro rata among the participating Regulated Funds and Affiliated
Funds based on the amounts they invest in such Co-Investment
Transaction. None of the Affiliated Funds, the Advisers, the other
Regulated Funds or any affiliated person of the Regulated Funds or
Affiliated Funds will receive additional compensation or remuneration
of any kind as a result of or in connection with a Co-Investment
Transaction (other than (a) in the case of the Regulated Funds and the
Affiliated Funds, the pro rata transaction fees described above and
fees or other compensation described in condition 2(c)(iii)(C); and (b)
in the case of an Adviser, investment advisory fees paid in accordance
with the agreement between the Adviser and the Regulated Fund or
Affiliated Fund.
---------------------------------------------------------------------------

    \14\ Applicants are not requesting and the staff is not
providing any relief for transaction fees received in connection
with any Co-Investment Transaction.
---------------------------------------------------------------------------

    14. If the Holders own in the aggregate more than 25 percent of the
Shares of a Regulated Fund, then the Holders will vote such Shares in
the same percentages as the Regulated Fund's other shareholders (not
including the Holders) when voting on (1) the election of directors;
(2) the removal of one or more directors; or (3) any other matter under
either the Act or applicable State law affecting the Board's
composition, size or manner of election.
    15. Each Regulated Fund's chief compliance officer, as defined in
rule 38a-1(a)(4) under the Act, will prepare an annual report for its
Board each year that evaluates (and documents the basis of that
evaluation) the Regulated Fund's compliance with the terms and
conditions of the application and the procedures established to achieve
such compliance.

    For the Commission, by the Division of Investment Management, under
delegated authority.

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-04075 Filed 2-26-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 186 (Monday, September 26, 2011)]
[Notices]
[Pages 59407-59408]
[FR Doc No: 2011-24598]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-N-0599]

Center for Biologics Evaluation and Research Report of Scientific
and Medical Literature and Information on Non-Standardized Allergenic
Extracts in the Diagnosis and Treatment of Allergic Disease;
Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing the
availability of its report of scientific and medical literature and
information concerning the use of non-standardized allergenic extracts
in the diagnosis and treatment of allergic disease. The report is
provided in a data file entitled ``Center for Biologics Evaluation and
Research Report of Scientific and Medical Literature and Information on
Non-Standardized Allergenic Extracts in the Diagnosis and Treatment of
Allergic Disease.'' FDA is making this report available to provide
information and obtain comments from public and private stakeholders.
FDA will also seek input on the report from the Allergenic Products
Advisory Committee (APAC) at a meeting to be held on October 25, 2011.
FDA has not made any regulatory decisions concerning the report or the
products discussed in the scientific literature and information cited.
FDA will review comments and other information it receives, as part of
its continued oversight of regulated products.

DATES: Submit either electronic or written comments on the report by
November 25, 2011.

ADDRESSES: Submit written requests for single copies of the report to
the Office of Communication, Outreach and Development (HFM-40), Center
for Biologics Evaluation and Research (CBER), Food and Drug
Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-
1448. Send one self-addressed adhesive label to assist the office in
processing your requests. The data file may also be obtained by mail by
calling CBER at 1-800-835-4709 or<PHONE_NUMBER>. See the SUPPLEMENTARY
INFORMATION section for electronic access to the data file document.
    Submit electronic comments on the report to http://www.regulations.gov. Submit written comments on the report to the
Division of Dockets Management

(HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061,
Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Paul E. Levine, Jr., Center for
Biologics Evaluation and Research (HFM-17), Food and Drug
Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-
1448,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Introduction

    FDA is announcing the availability of its report of scientific and
medical literature and information concerning the use of non-
standardized allergenic extracts in the diagnosis and treatment of
allergic disease. FDA is making this report available to provide
information and obtain comment on the report from public and private
stakeholders. FDA will also seek input on the report from APAC at a
meeting to be held on October 25, 2011. A separate notice of the APAC
meeting is published elsewhere in this issue of the Federal Register.
This process will assist FDA in its continued oversight of regulated
products.

II. Discussion

    In 2004, FDA formed an internal committee to review available
scientific and medical data on the safety and effectiveness of non-
standardized allergenic extracts. FDA formed this committee to consider
the previous evaluations performed by the external allergenics advisory
review panels under 21 CFR 601.25 (Panel I or ``Original Panel'') and
under 21 CFR 601.26 (Panel II or ``Reclassification Panel''). Reports
of the Original and Reclassification Panels are available at http://www.fda.gov/BiologicsBloodVaccines/Allergenics/ucm272115.htm. The
internal committee designed a data file to use in its review and to
archive supporting data. The data file includes a report of information
for each product, including a discussion of each product reviewed, and
a list of reviewed literature associated with each product. FDA's
approach to creating this data file was presented to APAC on April 7,
2005, and discussed again at the APAC meeting on September 13, 2006.
    After receiving favorable feedback from the APAC on FDA's proposed
methodology, FDA proceeded to collect the following information in
order to facilitate its assessment of safety and effectiveness of non-
standardized allergenic products.

A. Literature Reviewed by the Allergenics Advisory Review Panels

    This includes literature reviewed by the Original Panel as part of
its final report in 1981 and literature reviewed by the
Reclassification Panel as part of its final report in 1983.

B. Data Concerning the Effectiveness and Safety of Non-Standardized
Allergenic Products That Have Become Available Since 1972

    This includes published literature, available manufacturer data,
and data from other external sources. FDA accumulated these data from
the following sources:
1. Published Literature From 1972 to the Present
    This literature was acquired by searching for articles using a
PubMed and/or Institute for Scientific Information (ISI) search engine
(English-language literature articles only).
2. Publicly Available Manufacturer Data
    These data were obtained by reviewing information published in the
literature.
3. Medwatch Data Collected for Years 1987 to 2010
    These data were evaluated for safety related product trends.
4. Data From Other External Sources
    These data were obtained by performing a broad Internet search
(e.g., Google) to check for any additional safety or effectiveness data
not captured in published articles found via PubMed or ISI.
    FDA collected information from published scientific and medical
literature and other data sources for each extract in order to identify
those studies that used acceptable alternative testing methods. FDA
also collected information from studies that:
     Provided identifiable, specific and valid nomenclature for
the source materials used in the preparation of the allergenic extracts
in the studies.
     Were performed using aqueous based extracts prepared from
specifically identified source materials with correct nomenclature.
     Described identifiable, specific, and valid study methods.
     Provided objective and evaluable data.
     For skin test data in the studies:
    Obtained positive skin tests in index cases by either skin prick or
intradermal methods, demonstrated by:
    [cir] Wheal or erythema;
    [cir] Where appropriate, comparison to positive and negative
control data in same study subjects.
     For studies with cross reactivity data, demonstrated cross
reactivity by:
    [cir] ELISA or RAST inhibition;
    [cir] Western immunoblot; or
    [cir] Other valid immunochemical data.
    In reviewing evidence of efficacy, FDA did not consider to be
adequate ``random experience,'' or reports that lacked sufficient
scientific detail for proper evaluation (such as imprecise
nomenclature). FDA also did not consider to be adequate ``isolated case
reports'' unless corroborated by the following: (1) Other case reports
from independent authors, (2) well-described allergen challenge data,
or (3) valid cross-reactivity data.
    FDA is providing its report of the collected literature and other
data in a data file that is currently available in PDF format on FDA's
Web site at http://www.fda.gov/downloads/BiologicsBloodVaccines/Allergenics/UCM271330.pdf. FDA welcomes comments on the scientific and
medical literature and information presented in the data file.

III. Comments

    Interested persons may submit to the Division of Dockets Management
(see ADDRESSES) either electronic or written comments regarding this
document. It is only necessary to send one set of comments. It is no
longer necessary to send two copies of mailed comments. Identify
comments with the docket number found in brackets in the heading of
this document. Received comments may be seen in the Division of Dockets
Management between 9 a.m. and 4 p.m., Monday through Friday.

IV. Electronic Access

    Persons with access to the Internet may obtain the data file at
http://www.fda.gov/downloads/BiologicsBloodVaccines/Allergenics/UCM271330.pdf or http://www.regulations.gov.

    Dated: September 20, 2011.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2011-24598 Filed 9-23-11; 8:45 am]
BILLING CODE 4160-01-P


Pacific Holdings, LLC (IPH). The SNC primarily transports visitors to
Saratoga Springs, tourists seeking to sightsee along the Hudson River,
and travelers connecting to and from Amtrak service. The railroad
operates year round, with

standard coach passenger trains. Additional service activity includes
seasonal ski trains, and specials such as the ``Snow Train'' and those
featuring ``Thomas the Tank Engine\TM\.'' This railroad operates under
a five-year contract with the local government, and has expressed
interest to provide freight service as well. The railroad has about 25
employees.
    FRA believes that these two entities will not be impacted
significantly. While each of these entities will most likely have to
file a new e-prep plan, FRA does not expect they will have to change
how each railroad reacts to an emergency situation due to including
ERCCs under part 239's requirements. Their operating structure is
small, and it is probable that employees with e-prep duties will
continue to have the same emergency responsibilities. FRA expects that
both railroads will see additional burden from inclusion of other
provisions in this final rule related to recordkeeping and other
training and testing requirements. This final rule will not be a
significant financial impact on these railroad and their operations.
They can expect the total regulatory costs for this final rule as
adopted, to be less than $7,500 for each of the railroads over the next
10 years. Regulatory burden is mostly expected to be related to
personnel additions to emergency response training and operational
tests and inspections, and to new requirements related to debriefing
and critique sessions. The Hawkeye Express and the SNC currently have
e-prep plans that have been reviewed and approved by FRA. Although,
this final rule changes several requirements in part 239, the
professional skills necessary for compliance with existing and new
requirements are the same. FRA believes that both entities have the
professional knowledge to fulfill the requirements in this final rule.
    In conclusion, FRA believes that there are two small entities and
that both will be impacted. However, FRA has found that entities
directly burdened by the regulation will not be impacted significantly.
FRA believes that the costs associated with the final rule are
reasonable and will not cause any significant financial impact on their
operations.
3. Certification
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this final rule are
being submitted for approval to the Office of Management and Budget
(OMB) for review and approval in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that
contain the current and new or revised information collection
requirements and the estimated time to fulfill each requirement are as
follows:

----------------------------------------------------------------------------------------------------------------
                                     Respondent        Total annual     Average time per    Total annual burden
          CFR Section                 universe          responses           response               hours
----------------------------------------------------------------------------------------------------------------
239.13--Waiver petitions         45 railroads.....  1 petition.......  20 hours.........  20 hours.
 (current requirement).
239.101/201/203--Emergency
 preparedness plans (revised
 requirements)
    --1st year--amended plans..  45 railroads.....  45 plans.........  31.33 hours......  1,410 hours.
    --Subsequent years--amended  45 railroads.....  9 plans..........  31.33 hours......  282 hours.
     plans--substantive changes.
    --Subsequent years--amended  45 railroads.....  4 plans..........  60 minutes.......  4 hours.
     plans--non-substantive
     changes.
    --New RRs--e-prep plans....  2 railroads......  2 plans..........  80 hours.........  160 hours.
    --Current employee initial   45 railroads.....  540 trained        8 hours..........  4,320 hours.
     training for crewmembers,                       employees.
     control center & emergency
     response communications
     center personnel.
    --Employee periodic           45 railroads....  54 trained         4 hours..........  216 hours.
     training.                                       employees.
    --Initial training of new    45 railroads.....  135 trained        8 hours..........  1,080 hours.
     employees.                                      employees.
239.101(a)(1)(ii)--Notification
 s by control center (current
 requirements)
    --Designation of RR          45 railroads.....  45 designations..  5 minutes........  4 hours.
     employee to maintain
     current emergency
     telephone numbers to
     notify outside responders,
     etc..
    --Railroads' lists/records   45 railroads.....  2 updated lists..  1 hour...........  2 hours.
     of emergency telephone
     numbers to notify outside
     responders, etc..
239.101(a)(3)--Emergency         45 railroads.....  1 plan...........  16 hours.........  16 hours.
 preparedness plan--joint
 operations (current
 requirement).
239.101(a)(5)--RR training       45 railroads.....  45 updated plans.  40 hours.........  1,800 hours.
 program for on-line emergency
 responders (current
 requirement).
239.101(a)(7)--Passenger safety  2 new railroads..  1,300 cards/2      5 minutes/16       300 hours.
 information--posting emergency                      programs/2         hours/48 hours/8
 instructions inside all                             safety messages/   hours/+24 hours.
 passenger cars (current                             2 programs/+2
 requirement).                                       safety messages.
239.105(a)(3)--Debriefing and    45 railroads.....  79 sessions......  27 hours.........  2,133 hours.
 critique--sessions conducted
 after passenger emergency
 situation or full-scale
 simulation (current
 requirement).
239.301(a)--Operational          45 railroads.....  25,000 tests/      15 minutes.......  6,250 hours.
 efficiency tests (revised                           inspections.
 requirements)--RR tests/
 inspections of on-board,
 control center, and emergency
 response communications center
 employees.
(b)(c)--Records of operational   45 railroads.....  25,000 records...  2 minutes........  833 hours.
 tests/inspections.
(d)--Records of program of       45 railroads.....  90 records.......  3 minutes........  5 hours.
 operational tests (new
 requirement).

(e)--Periodic reviews and        45 railroads.....  90 periodic        2 hours..........  180 hours.
 adjustments (not less than                          reviews.
 every 6 months) to program of
 operational tests and
 inspections (new requirement).
(f)--Annual summary of           45 railroads.....  45 annual          5 minutes + 1      5 hours.
 operational tests/inspections                       summaries + 30     minute.
 and copy of summary at system                       hardcopies.
 and division headquarters (new
 requirement).
----------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions; searching
existing data sources; gathering or maintaining the needed data; and
reviewing the information. For information or a copy of the paperwork
package submitted to OMB, please contact Mr. Robert Brogan, Information
Clearance Officer, Federal Railroad Administration, at<PHONE_NUMBER>
(Robert.Brogan@dot.gov), or Ms. Kimberly Toone, Records Management
Officer, Federal Railroad Administration, at<PHONE_NUMBER>
(Kimberly.Toone@dot.gov).
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be
sent via email to the Office of Management and Budget at the following
address<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements that do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of this final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism,'' requires FRA to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' See 64 FR 43255 (August 10, 1999).
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects 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.'' Under
Executive Order 13132, the agency may not issue a regulation with
federalism implications that imposes substantial direct compliance
costs and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, the agency consults with
State and local governments, or the agency consults with State and
local government officials early in the process of developing the
regulation. Where a regulation has federalism implications and preempts
State law, the agency seeks to consult with State and local officials
in the process of developing the regulation.
    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132. This final rule will
not have a substantial effect on the States or their political
subdivisions, and it will not affect the relationships between the
Federal government and the States or their political subdivisions, or
the distribution of power and responsibilities among the various levels
of government. In addition, FRA has determined that this regulatory
action will not impose substantial direct compliance costs on the
States or their political subdivisions. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply.
    However, this final rule could have preemptive effect by operation
of law under certain provisions of the Federal railroad safety
statutes, specifically the former Federal Railroad Safety Act of 1970,
repealed and recodified at 49 U.S.C. 20106. Section 20106 provides that
States may not adopt or continue in effect any law, regulation, or
order related to railroad safety or security that covers the subject
matter of a regulation prescribed or order issued by the Secretary of
Transportation (with respect to railroad safety matters) or the
Secretary of Homeland Security (with respect to railroad security
matters), except when the State law, regulation, or order qualifies
under the ``essentially local safety or security hazard'' exception to
section 20106.
    In sum, FRA has determined that this final rule has no federalism
implications, other than the possible preemption of State laws under
Federal railroad safety statutes, specifically 49 U.S.C. 20106.
Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this final rule is not required.

E. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards or
related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this rulemaking on foreign
commerce and believes that its requirements are consistent with the
Trade Agreements Act. The requirements are safety standards, which, as
noted, are not considered unnecessary obstacles to trade. Moreover, FRA
has sought, to the extent practicable, to state the requirements in
terms of the performance desired, rather than in more narrow terms
restricted to a particular design or system.

F. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545
(May 26, 1999)) as required by the National Environmental Policy Act
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and related regulatory requirements. FRA has

determined that this proposed rule is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
See 64 FR 28545, 28547 (May 26, 1999). Certain classes of FRA actions
have been determined to be categorically excluded from the requirements
of these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. Promulgation of railroad
safety rules and policy statements that do not result in significantly
increased emissions or air or water pollutants or noise or increased
traffic congestion in any mode of transportation are excluded.
    In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
This final rule will not result in the expenditure, in the aggregate,
of $100,000,000 or more (as adjusted annually for inflation) in any one
year, and thus preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' See
66 FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action.
    FRA has evaluated this final rule in accordance with Executive
Order 13211. FRA has determined that this final rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of the
Executive Order.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of any comment or petition received into
any of FRA's dockets by the name of the individual submitting the
comment (or signing the comment if submitted on behalf of an
association, business, labor union, etc.). Please see the privacy
notice at http://www.regulations.gov/#!privacyNotice. You may also
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477-19478), or you may visit
http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 239

    Passenger train emergency preparedness, Penalties, Railroad safety,
Reporting and recordkeeping requirements.

The Rule

    For the reasons discussed in the preamble, FRA amends part 239 of
chapter II, subtitle B of title 49, Code of Federal Regulations as
follows:

PART 239--[AMENDED]

0
1. The authority citation for part 239 continues to read as follows:

    Authority:  49 U.S.C. 20102-20103, 20105-20114, 20133, 21301,
21304, and 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

Subpart A--General

Sec.  239.5  [Removed and Reserved]

0
2. Section 239.5 is removed and reserved.

0
3. Section 239.7 is amended by--
0
a. Revising paragraph (1) of the definition of ``Crewmember'';
0
b. Adding ``, on-line emergency responder, or outside emergency
responder'' to the term ``Emergency responder''; and
0
c. Adding the definition of ``Emergency response communications
center'' in alphabetical order.
    The revisions and additions read as follows:

Sec.  239.7  Definitions.

* * * * *
    Crewmember * * *
    (1) On-board functions connected with the movement of the train
(i.e., an employee of the railroad, or of a contractor to the railroad,
who is assigned to perform service subject to the Federal hours of
service requirements during a tour of duty) or
* * * * *
    Emergency responder, on-line emergency responder, or outside
emergency responder * * *
    Emergency response communications center means a central location,
or a group of individuals, designated by a railroad with responsibility
for establishing, coordinating, or maintaining communication with
outside emergency responders, representatives of adjacent rail modes of
transportation, or appropriate railroad officials during a passenger
train emergency. The emergency response communications center may be
part of the control center.
* * * * *

Subpart B--Specific Requirements

0
4. Section 239.101 is amended by revising paragraphs (a)(1)(ii),
(a)(2)(ii), (a)(2)(iii) introductory text, (a)(2)(iv), (a)(2)(v)
introductory text, (a)(2)(v)(A), and adding paragraph (a)(8) to read as
follows:

Sec.  239.101  Emergency preparedness plan.

    (a) * * *
    (1) * * *
    (i) * * *
    (ii) Notification by control center or emergency response
communications center. The control center or the emergency response
communications center, as applicable under the plan, shall promptly
notify outside emergency

responders, adjacent rail modes of transportation, and appropriate
railroad officials that a passenger train emergency has occurred. Each
railroad shall designate an employee responsible for maintaining
current emergency telephone numbers for use in making such
notifications.
    (2) * * *
    (ii) Control center and emergency response communications center
personnel. The railroad's emergency preparedness plan shall require
initial training of responsible control center personnel and any
emergency response communications center personnel employed by the
railroad, under a contract or subcontract with the railroad, or
employed by a contractor or subcontractor to the railroad, as well as
periodic training at least once every two calendar years thereafter, on
appropriate courses of action for each potential emergency situation
under the plan. At a minimum, the initial and periodic training shall
include the following:
    (A) Territory familiarization (e.g., access points for emergency
responders along the railroad's right-of-way; special circumstances
(e.g., tunnels); parallel operations; and other operating conditions
(e.g., elevated structures, bridges, and electrified territory)
including areas along the railroad's right-of-way that are remote and
that would likely present challenges for individuals responding to a
passenger train emergency);
    (B) Procedures to retrieve and communicate information to aid
emergency personnel in responding to an emergency situation;
    (C) Protocols governing internal communications between appropriate
control center and emergency response communications center personnel
whenever an imminent potential or actual emergency situation exists, as
applicable under the plan; and
    (D) Protocols for establishing and maintaining external
communications between the railroad's control center or emergency
response communications center, or both, and emergency responders and
adjacent modes of transportation, as applicable under the plan.
    (iii) Initial training schedule for current personnel. The
railroad's emergency preparedness plan shall provide for the completion
of initial training of all on-board and responsible control center
personnel, as well as any emergency response communications center
personnel, who are employed by the railroad, under a contract or
subcontract with the railroad, or employed by a contractor or
subcontractor to the railroad on the date that the plan is
conditionally approved under Sec.  239.201(b)(1), in accordance with
the following schedule:
* * * * *
    (iv) Initial training schedule for new personnel. The railroad's
emergency preparedness plan shall provide for the completion of initial
training of all on-board and responsible control center personnel, as
well as any emergency response communications center personnel, who are
hired by the railroad, contracted or subcontracted by the railroad, or
hired by the contractor or subcontractor to the railroad after the date
on which the plan is conditionally approved under Sec.  239.201(b)(1).
Each of these individuals shall receive initial training within 90 days
after the individual's initial date of service.
    (v) Testing of on-board, control center, and emergency response
communications center personnel. The railroad shall have procedures for
testing an individual being evaluated for qualification under the
emergency preparedness plan who is employed by the railroad, under a
contract or subcontract with the railroad, or employed by a contractor
or subcontractor to the railroad. The types of testing selected by the
railroad shall be--
    (A) Designed to accurately measure the individual's knowledge of
his or her responsibilities under the plan;
* * * * *
    (8) Procedures regarding passengers with disabilities. The
railroad's emergency preparedness plan shall include procedures to
promote the safety of passengers with disabilities under all conditions
identified in its emergency preparedness plan, such as during a train
evacuation. These procedures shall include, but not be limited to, a
process for notifying emergency responders in an emergency situation
about the presence and general location of each such passenger when the
railroad has knowledge that the passenger is on board the train. The
railroad does not have knowledge that such passenger has a disability
unless a crewmember has actual knowledge of the disability, such as
where a passenger (or his or her companion or fellow passenger) has
expressly informed a crewmember on the train of the disability or where
the disability is readily apparent. Nothing in this part requires the
railroad to maintain any list of train passengers.
* * * * *

0
5. Section 239.105 is amended by revising paragraphs (c)(3) and (c)(5)
to read as follows:

Sec.  239.105  Debriefing and critique.

* * * * *
    (c) * * *
    (3) Whether the control center or the emergency response
communications center promptly initiated the required notifications, as
applicable under the plan;
* * * * *
    (5) How efficiently the passengers exited from the car through the
emergency exits, including any passengers with a disability or injury
(when the railroad has knowledge of any such passengers).
* * * * *

Subpart C--Review, Approval, and Retention of Emergency
Preparedness Plans

0
6. Section 239.201 is amended by revising paragraphs (a) and (b)(3)(i)
to read as follows:

Sec.  239.201  Emergency preparedness plan; filing and approval.

    (a) Filing of plan and amendments--(1) Filing of plan. Each
passenger railroad to which this part applies and all railroads hosting
its passenger train service (if applicable) shall jointly adopt a
single emergency preparedness plan for that service, and the passenger
railroad shall file one copy of that plan with the Associate
Administrator for Railroad Safety and Chief Safety Officer, Federal
Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 25,
Washington, DC 20590, not less than 60 days prior to commencing
passenger operations. Any passenger railroad that has an emergency
preparedness plan approved by FRA as of July 29, 2014, is considered to
have timely filed its plan. The emergency preparedness plan shall
include the name, title, address (street address and, if available,
email address), and telephone number of the primary person on each
affected railroad to be contacted with regard to review of the plan,
and shall include a summary of each railroad's analysis supporting each
plan element and describing how every condition on the railroad's
property that is likely to affect emergency response is addressed in
the plan.
    (2) Filing of amendments to the plan. (i) Except as provided in
paragraph (a)(2)(ii) of this section, each subsequent amendment to a
railroad's emergency preparedness plan shall be filed with FRA by the
passenger railroad not less than 60 days prior to the proposed
effective date of the amendment. When filing an amendment, the railroad
must include a written summary of the proposed changes to the
previously approved plan and, as applicable, a

training plan describing how and when current and new employees and
others within the scope of the training requirement at Sec.
239.101(a)(2) would be trained on any amendment.
    (ii) If the proposed amendment is limited to adding or changing the
name, title, street address, email address, or telephone number of the
primary person to be contacted on each affected railroad with regard to
the review of the plan, approval is not required under the process in
paragraph (b)(3)(i) of this section. These proposed amendments may be
implemented by the railroad upon filing with FRA's Associate
Administrator for Railroad Safety and Chief Safety Officer. All other
proposed amendments must comply with the formal approval process in
paragraph (b)(3)(i) of this section.
    (b) * * *
    (3) Review of amendments. (i) Except as provided in paragraph
(a)(2)(ii) of this section, FRA will normally review each proposed plan
amendment within 45 days of receipt. FRA will then notify the primary
contact person of each affected railroad of the results of the review,
whether the proposed amendment has been approved by FRA, and if not
approved, the specific points in which the proposed amendment is
deficient.
* * * * *

0
7. Revise the heading of subpart D to read as follows:

Subpart D--Operational Tests and Inspections; Records,
Recordkeeping, and Availability of Records

0
8. Section 239.301 is revised to read as follows:

Sec.  239.301  Operational tests and inspections.

    (a) Requirement to conduct operational tests and inspections. Each
railroad to which this part applies shall periodically conduct
operational tests and inspections of on-board personnel, responsible
control center personnel, and, as applicable, emergency response
communications center personnel employed by the railroad, under a
contract or subcontract with the railroad, or employed by a contractor
or subcontractor to the railroad, to determine the extent of compliance
with its emergency preparedness plan.
    (1) Program of operational tests and inspections. Operational tests
and inspections shall be conducted in accordance with the railroad's
program. A new railroad shall adopt such a program within 30 days of
commencing rail operations. The program shall--
    (i) Provide for operational testing and inspection on appropriate
courses of action in response to various potential emergency situations
and on the responsibilities of an employee of the railroad, of an
individual who is a contractor or subcontractor to the railroad, or an
employee of a contractor of subcontractor to the railroad, as they
relate to the railroad's emergency preparedness plan.
    (ii) Describe each type of operational test and inspection
required, including the means and procedures used to carry it out.
    (iii) State the purpose of each type of operational test and
inspection.
    (iv) State, according to operating divisions where applicable, the
frequency with which each type of operational test and inspection is to
be conducted.
    (v) Identify the officer(s) by name, job title, and division or
system, who shall be responsible for ensuring that the program of
operational tests and inspections is properly implemented. A railroad
with operating divisions shall identify at least one officer at the
system headquarters who is responsible for overseeing the entire
program and the implementation by each division.
    (vi) Require that each railroad officer who conducts operational
tests and inspections be trained on those aspects of the railroad's
emergency preparedness plan that are relevant to the operational tests
and inspections that the officer conducts, and that the officer be
qualified on the procedures for conducting such operational tests and
inspections in accordance with the railroad's program of operational
tests and inspections and the requirements of this section.
    (2) The program of operational tests and inspections required by
paragraph (a)(1) of this section may be combined with the written
program of operational tests and inspections required by Sec.  217.9(c)
of this chapter.
    (b) Maintaining records of operational tests and inspections. Each
railroad to which this part applies shall maintain a record of the
date, time, place, and result of each operational test and inspection
that was performed in accordance with paragraph (a) of this section.
Each record shall also specify the name of the railroad officer who
administered the test or inspection, the name of each employee tested,
and sufficient information to identify the relevant facts relied on for
evaluation purposes.
    (c) Retaining operational test and inspection records. Each record
required by paragraph (b) of this section shall be retained at the
system headquarters of the railroad and, as applicable, at the division
headquarters for the division where the test or inspection was
conducted, for one calendar year after the end of the calendar year to
which the test or inspection relates. Each such record shall be
retained either in hard copy or electronically, if pursuant to Sec.
239.303, and shall be made available to representatives of FRA and
States participating under part 212 of this chapter for inspection and
copying during normal business hours.
    (d) Retaining records of program of operational tests and
inspections. Each railroad shall retain one copy of its current
operational testing and inspection program required by paragraph (a) of
this section and one copy of each subsequent amendment to such program.
These records shall be retained at the system headquarters, and, as
applicable, at each division headquarters where the operational tests
and inspections are conducted, for three calendar years after the end
of the calendar year to which they relate. These records shall be
retained either in hard copy or electronically, if pursuant to Sec.
239.303, and shall be made available to representatives of FRA and
States participating under part 212 of this chapter for inspection and
copying during normal business hours.
    (e) Six-month review of tests and inspections and adjustments to
the program of operational tests and inspections. Not less than once
every six months, the officer(s) responsible for overseeing the entire
program of operational tests and inspections under this section and the
implementation of the program by each division, if any, or the system,
as designated pursuant to paragraph (a)(1)(v) of this section, shall
conduct periodic reviews and analyses as provided in this paragraph,
prepare records of reviews as provided in this paragraph, and retain
one copy of these records at the system headquarters, and, as
applicable, at each division headquarters. Each such review and record
shall be completed within 30 days of the close of the period being
reviewed. The record of each such review shall be retained (in hard
copy or electronically, if pursuant to Sec.  239.303) for a period of
one year after the end of the calendar year to which the review
relates, and be made available to representatives of FRA for inspection
and copying during normal business hours. In particular, each
designated officer's review and record shall include the following:
    (1) The operational testing and inspection data for each division,
if any, or the system to determine compliance by the railroad testing
officers with its program of operational tests and inspections required
by paragraph (a)(1)

of this section. At a minimum, this review shall include the name of
each railroad testing officer, the number of tests and inspections
conducted by each officer, and whether the officer conducted the
minimum number of each type of test or inspection required by the
railroad's program;
    (2) Accident/incident data, the results of prior operational tests
and inspections under this section, and other pertinent safety data for
each division, if any, or the system to identify the relevant operating
rules related to those accidents/incidents that occurred during the
period. Based upon the results of that review of the data for each
division, if any, or the system, the designated officer(s) shall make
any necessary adjustments to the tests and inspections required of
railroad officers for the subsequent period(s); and
    (3) Implementation of the program of operational tests and
inspections under this section from a system perspective, to ensure
that the program is being utilized as intended, that the other reviews
provided for in this paragraph have been properly completed, that
appropriate adjustments have been made to the distribution of tests and
inspections required, and that the railroad testing officers are
appropriately directing their efforts.
    (f) Annual summary of operational tests and inspections. Before
March 1 of each calendar year, each railroad to which this part applies
shall prepare and retain at the system headquarters of the railroad
and, as applicable, at each of its division headquarters, one copy of a
summary of the following with respect to its previous calendar year
activities: The number, type, and result of each operational test and
inspection, stated according to operating divisions as applicable, that
was conducted as required by paragraph (a) of this section. A record of
each such summary shall be retained (in hard copy or electronically, if
pursuant to Sec.  239.303) for three calendar years after the end of
the calendar year to which the record relates and shall be made
available to representatives of FRA and States participating under part
212 of this chapter for inspection and copying during normal business
hours.

0
9. Appendix A to part 239 is amended by--
0
a. Revising the entries under subpart B for Sec. Sec.  239.101(a),
239.101(a)(1)(ii), 239.101(a)(2)(ii), (iii), (iv), and (v),
0
b. Adding entries under subpart B for Sec. Sec.  239.101(a)(1)(iii),
239.101(a)(8), and 239.105(c) in numerical order,
0
c. Adding an entry under subpart C for Sec.  239.201(a)(iv) in
numerical order,
0
d. Revising the heading of subpart D,
0
e. Revising the entries under subpart D for Sec. Sec.  239.301,
239.301(a), 239.301(c)(1) (by adding additional paragraph designations
for (d)(1), (e)(2), and (f)(1)) and 239.301(c)(2) (by adding additional
paragraph designations for (d)(2), (e)(3), and (f)(2)).
0
f. Adding entries under subpart D for Sec. Sec.  239.301(a)(1),
239.301(a)(1)(vi), and 239.301(e)(1) in numerical order,
0
g. Revising footnote 1, and
0
h. Adding footnote 2.
    The revisions and additions read as follows:

Appendix A to Part 239--Schedule of Civil Penalties \1\

------------------------------------------------------------------------
                                                              Willful
               Section \2\                   Violation       violation
------------------------------------------------------------------------
    Subpart B--Specific Requirements
239.101(a) Failure of a railroad to                7,500          11,000
 adopt a written or electronic emergency
 preparedness plan......................
    (a)(1) * * *
        (i) * * *
        (ii) Notification of outside               2,500           5,000
         emergency responders by control
         center or ERCC.................
        (iii) Failure to designate                 2,500           5,000
         employee responsible for
         maintaining current emergency
         telephone numbers for use in
         notifications..................
    (a)(2) * * *
        (i) * * *
        (ii) Initial or periodic                   2,500           5,000
         training of control center and
         ERCC personnel.................
        (iii) Completion of initial                2,500           5,000
         training of each on-board,
         control center, and ERCC
         personnel by the specified date
        (iv) Completion of initial                 2,500           5,000
         training of each newly-hired on-
         board, control center, and ERCC
         personnel by the specified date
        (v) Adequate procedures to                 2,500           5,000
         evaluate and test on-board,
         control center, and ERCC
         personnel for qualification
         under the emergency
         preparedness plan..............

                              * * * * * * *
    (a)(8) Failure of the plan to                  2,500           5,000
     include procedures promoting the
     safety of passengers with
     disabilities.......................

                              * * * * * * *
239.105 * * *

                              * * * * * * *
    (c) Failure to design the debrief              2,500           5,000
     and critique session to determine
     the five items specified...........

                              * * * * * * *
    Subpart C--Review, Approval, and
   Retention of Emergency Preparedness
                  Plans
239.201 * * *
    (a):
        (i) * * *
        (ii) * * *
        (iii) * * *
        (iv) Failure of a railroad to              1,000           2,000
         file a summary of an amendment
         to its plan....................

                              * * * * * * *
    Subpart D--Operational Tests and
Inspections; Records, Recordkeeping, and
         Availability of Records
239.301 Operational tests and
 inspections
    (a) Failure to periodically conduct            2,500           5,000
     operational tests and inspections
     of applicable personnel in
     accordance with program of
     operational tests and inspections..

    (a)(1) Failure to adopt a program of           5,000           7,500
     operational tests and inspections
     that meets the minimum requirements
     within 30 days of commencing rail
     operations.........................
    (a)(1)(vi) Failure to train or                 2,500           5,000
     qualify each railroad officer who
     conducts operational tests and
     inspections on aspects of the e-
     prep plan and program procedures
     relevant to the operational tests
     and inspections that the officer
     conducts...........................

                              * * * * * * *
    (c)(1), (d)(1), (e)(2), (f)(1): * *
     *
    (c)(2), (d)(2), (e)(3), (f)(2): * *
     *
    (e)(1) Failure to conduct six-month            4,000           7,500
     review and analysis of required
     data and make any necessary or
     appropriate adjustments to the
     program of operational tests and
     inspections........................

                              * * * * * * *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $105,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 239. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

    Issued in Washington, DC, on March 25, 2014.
Melissa L. Porter,
Chief Counsel.

[FR Doc. 2014-06998 Filed 3-28-14; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)]
[Notices]
[Page 9847]
[FR Doc No: 2016-04148]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL16-41-000]

Morongo Transmission LLC; Notice of Petiton for Declaratory Order

    Take notice that on February 19, 2016, pursuant to Rule 207 of the
Commission's Rules of Practice and Procedure of the Federal Energy
Regulatory Commission's (Commission), 18 CFR 385.207(a)(2) (2015),
Morongo Transmission LLC (Morongo) filed a petition for declaratory
order stating that amounts invested by Morongo Transmission in the West
of Devers Transmission Upgrade Project in excess of $400 million will
receive the same rate treatment that the Commission authorized in its
August 25, 2014 order,\1\ as more fully explained in the petition.
---------------------------------------------------------------------------

    \1\ Morongo Transmission LLC, 148 FERC 61,139 (2014).
---------------------------------------------------------------------------

    Any person desiring to intervene or to protest in this proceeding
must file in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or
before 5:00 p.m. Eastern time on the specified comment date. 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 Petitioner.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
5 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426.
    The filings in the above proceeding are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also 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 email notification
when a document is added to a subscribed docket(s). For assistance with
an FERC Online service, please email<EMAIL_ADDRESS>call
(866) 208-3676 (toll free). For TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern time on March 21, 2016.

    Dated: February 19, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2016-04148 Filed 2-25-16; 8:45 am]
BILLING CODE 6717-01-P