Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices 31073 

(f) NASA, John C. Stennis Space 

Center, MS 39529 (228–688–2118); 

(g) NASA, Lyndon B. Johnson Space 

Center, Houston, TX 77058 (281–483– 

8612); 

(h) NASA, Langley Research Center, 

Hampton, VA 23681 (757–864–2497); 

(i) NASA, Michoud Assembly 

Facility, New Orleans, LA 70189 (504– 

257–2629); and 

(j) NASA, White Sands Test Facility, 

Las Cruces, NM 88004 (505–524–5024); 

(k) Jet Propulsion Laboratory, Visitors 

Lobby, Building 249, 4800 Oak Grove 

Drive, Pasadena, CA 91109. 

Limited hard copies of the specific 

environmental documentation named 

below that supports this FONSI are 

available on a first-request basis by 

contacting Mark Sistilli at the address, 

telephone number, and e-mail address 

indicated wherein. 

References 

A complete list of all references cited 

in this rule is available on the Internet 

at http://oim.hq.nasa.gov/oia/emd/ 

ep.html or by e-mailing a request to 

nepa@hq.nasa.gov. 

Edward J. Weiler, 

Associate Administrator for Science Mission 

Directorate. 

[FR Doc. E9–15203 Filed 6–26–09; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

[NRC–2009–0262] 

Draft Regulatory Guide: Issuance, 

Availability 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Notice of Issuance and 

Availability of Draft Regulatory Guide, 

DG–3037. 

FOR FURTHER INFORMATION CONTACT: 

Margie Kotzalas, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone: (301) 492– 

3202, e-mail Margie.Kotzalas@nrc.gov, 

or, R.A. Jervey, telephone (301) 251– 

7404, e-mail Richard.Jervey@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The U.S. Nuclear Regulatory 

Commission (NRC) is issuing for public 

comment a draft guide in the agency’s 

‘‘Regulatory Guide’’ series. This series 

was developed to describe and make 

available to the public information and 

methods that are acceptable to the NRC 

staff for implementing specific parts of 

the NRC’s regulations, techniques that 

the staff uses in evaluating specific 

problems or postulated accidents, and 

data that the staff needs in its review of 

applications. 

The draft regulatory guide (DG), 

entitled, ‘‘Guidance for Fuel Cycle 

Facility Change Processes,’’ is 

temporarily identified by its task 

number, DG–3037, which should be 

mentioned in all related 

correspondence. DG–3037 will be a new 

regulatory guide. 

Title 10 of the Code of Federal 

Regulations, Part 70, ‘‘Domestic 

Licensing of Special Nuclear Material’’ 

(10 CFR Part 70) contains the 

regulations for fuel cycle facility 

licensees that possess greater than a 

critical mass of special nuclear material 

and are engaged in enriched uranium 

processing, fabrication of uranium fuel 

or fuel assemblies, uranium enrichment, 

enriched uranium hexafluoride 

conversion, plutonium processing, and 

fabrication of mixed-oxide fuel or fuel 

assemblies. 

Subsection (a) of 10 CFR 70.72, 

‘‘Facility changes and change process,’’ 

requires that fuel cycle facility licensees 

establish a configuration management 

system to evaluate, implement, and 

track each change to the site, structures, 

processes, systems, equipment, 

components, computer programs, and 

activities of personnel. Such changes 

may be made by the licensee without 

prior approval of the NRC, provided that 

the changes meet the criteria of 10 CFR 

70.72(c). DG–3037 provides guidance on 

how to meet the requirements of 10 CFR 

70.72(c). 

II. Further Information 

The NRC staff is soliciting comments 

on DG–3037. Comments may be 

accompanied by relevant information or 

supporting data and should reference 

DG–3037 in the subject line. Comments 

submitted in writing or in electronic 

form will be made available to the 

public in their entirety through the 

NRC’s Agencywide Documents Access 

and Management System (ADAMS). 

Personal information will not be 

removed from your comments. You may 

submit comments by any of the 

following methods: 

1. Mail comments to: Rulemaking and 

Directives Branch, Office of 

Administration, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001. 

2. E-mail comments to: 

nrcrep.resource@nrc.gov. 

Requests for technical information 

about DG–3037 may be directed to the 

NRC contact, Margie Kotzalas at (301) 

492–3202 or e-mail to 

Margie.Kotzalas@nrc.gov. 

Comments would be most helpful if 

received by August 17, 2009. Comments 

received after that date will be 

considered if it is practical to do so, but 

the NRC is able to ensure consideration 

only for comments received on or before 

this date. Although a time limit is given, 

comments and suggestions in 

connection with items for inclusion in 

guides currently being developed or 

improvements in all published guides 

are encouraged at any time. 

Electronic copies of DG–3037 are 

available through the NRC’s public Web 

site under Draft Regulatory Guides in 

the ‘‘Regulatory Guides’’ collection of 

the NRC’s Electronic Reading Room at 

http://www.nrc.gov/reading-rm/doccollections/. Electronic copies are also 

available in ADAMS (http:// 

www.nrc.gov/reading-rm/adams.html), 

under Accession No. ML091200493. 

In addition, regulatory guides are 

available for inspection at the NRC’s 

Public Document Room (PDR), which is 

located at 11555 Rockville Pike, 

Rockville, Maryland. The PDR’s mailing 

address is USNRC PDR, Washington, DC 

20555–0001. The PDR can also be 

reached by telephone at (301) 415–4737 

or (800) 397–4205, by fax at (301) 415– 

3548, and by e-mail to 

pdr.resource@nrc.gov. 

Regulatory guides are not 

copyrighted, and Commission approval 

is not required to reproduce them. 

Dated at Rockville, Maryland, this 22nd 

day of June, 2009. For the Nuclear Regulatory 

Commission. 

M.P. Orr, 

Acting Chief, Regulatory Guide Development 

Branch, Division of Engineering, Office of 

Nuclear Regulatory Research. 

[FR Doc. E9–15279 Filed 6–26–09; 8:45 am] 

BILLING CODE 7590–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28769; File No. 812–13633] 

Embarcadero Funds, Inc., et al.; Notice 

of Application 

June 22, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application under 

section 6(c) of the Investment Company 

Act of 1940 (‘‘Act’’ or ‘‘1940 Act’’) for 

an exemption from section 15(a) of the 

Act and rule 18f–2 under the Act, as 

well as from certain disclosure 

requirements. 

SUMMARY OF APPLICATION: Applicants 

request an order that would permit them 


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31074 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices 

1Applicants also request relief with respect to 

existing and future series of the Company and any 

other existing or future registered open-end 

management investment company or series thereof 

that: (i) Is advised by the Adviser or any person 

controlling, controlled by, or under common 

control with the Adviser or its successors; (ii) uses 

the management structure described in this 

application; and (iii) complies with the terms and 

conditions of this application (together with the 

Funds that use Subadvisers, as defined below, the 

‘‘Subadvised Funds’’). For purposes of the 

requested order, ‘‘successor’’ is limited to an entity 

or entities that result from a reorganization into 

another jurisdiction or a change in the type of 

business organization. The only existing registered 

open-end management investment company that 

currently intends to rely on the requested order is 

named as an applicant. If the name of any 

Subadvised Fund contains the name of a 

Subadviser, the name of the Adviser or the name 

of the entity controlling, controlled by, or under 

common control with the Adviser that serves as the 

primary adviser to the Subadvised Fund will 

precede the name of the Subadviser. 

2The Adviser may enter into Subadvisory 

Agreements in the future to provide investment 

advisory services to the fifth fund, the Alternative 

Strategies Fund. 

to enter into and materially amend 

subadvisory agreements without 

shareholder approval and would grant 

relief from certain disclosure 

requirements. 

APPLICANTS: Embarcadero Funds, Inc. 

(the ‘‘Company’’) and Van Wagoner 

Capital Management, Inc. (the 

‘‘Adviser’’). 

FILING DATES: The application was filed 

on February 18, 2009, and amended on 

June 15, 2009. 

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 July 17, 2009 and 

should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Hearing requests should state 

the nature of the writer’s interest, the 

reason for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549– 

1090. Applicants, Three Embarcadero 

Center, Suite 1100, San Francisco, CA 

94111. 

FOR FURTHER INFORMATION CONTACT: 

Barbara T. Heussler, Senior Attorney, at 

(202) 551–6990, or Jennifer L. Sawin, 

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 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 (202) 551–8090. 

Applicants’ Representations 

1. The Company, a Maryland 

corporation organized as a series 

investment company, is registered 

under the Act as an open-end 

management investment company and 

currently consists of five series: The AllCap Growth Fund, Small-Cap Growth 

Fund, Alternative Strategies Fund, 

Absolute Return Fund and Market 

Neutral Fund (each a ‘‘Fund’’ and 

collectively, the ‘‘Funds’’).1 Each series 

has separate investment objectives, 

policies and restrictions. The Adviser, a 

Delaware corporation, is an investment 

adviser registered under the Investment 

Advisers Act of 1940, as amended 

(‘‘Advisers Act’’). The Adviser serves as 

investment adviser to all five series of 

the Company under investment 

advisory agreements with the Company 

(‘‘Advisory Agreements’’). The Advisory 

Agreements have been approved by the 

shareholders of each Fund and by the 

board of directors of the Company 

(‘‘Board’’), including a majority of those 

directors who are not ‘‘interested 

persons’’ of the Company or the Adviser 

as defined in section 2(a)(19) of the Act 

(‘‘Independent Directors’’). 

2. Under the terms of the Advisory 

Agreements, the Adviser shall, subject 

to and in accordance with the 

investment objective and policies of a 

Fund and any directions which the 

Board may issue to the Adviser, have 

overall responsibility for the general 

management and investment of the 

assets and securities portfolios of the 

Fund. For the investment management 

services it provides to each Fund, the 

Adviser receives from that Fund the fee 

specified in the Advisory Agreements, 

payable monthly at an annual rate based 

the average daily net assets of the Fund. 

The Advisory Agreements permit the 

Adviser, to delegate certain asset 

management responsibilities to one or 

more subadvisers (‘‘Subadvisers’’). The 

Adviser has entered or intends to enter 

into investment subadvisory agreements 

(‘‘Subadvisory Agreements’’) with 

various Subadvisers to provide 

investment advisory services to four of 

the Funds.2 Each Subadviser is, and any 

future Subadviser will be, registered as 

an investment adviser under the 

Advisers Act. The Adviser monitors and 

evaluates the Subadvisers and 

recommends to the Board their hiring, 

retention or termination. Subadvisers 

recommended to the Board by the 

Adviser are selected and approved by 

the Board, including a majority of the 

Independent Directors. Subadvisers 

have discretionary authority to invest 

the assets or a portion of the assets of 

a particular Fund. The Adviser will 

compensate each Subadviser out of the 

fees paid to the Adviser under the 

Advisory Agreements. 

3. Applicants request an order to 

permit the Adviser, subject to Board 

approval, to select certain Subadvisers 

and materially amend an existing 

Subadvisory Agreement without 

obtaining shareholder approval. The 

requested relief will not extend to any 

Subadviser who is an affiliated person, 

as defined in section 2(a)(3) of the Act, 

of the Company or of the Adviser, other 

than by reason of serving as a 

Subadviser to one or more Funds 

(‘‘Affiliated Subadviser’’). 

4. Applicants also request an 

exemption from the various disclosure 

provisions described below that may 

require the Funds to disclose fees paid 

by the Adviser to each Subadviser. An 

exemption is requested to permit the 

Company to disclose for each 

Subadvised Fund (as both a dollar 

amount and as a percentage of the 

Subadvised Fund’s net assets): (i) The 

aggregate fees paid to the Adviser and 

any Affiliated Subadviser, if any; and 

(ii) the aggregate fees paid to 

Subadvisers other than Affiliated 

Subadvisers (collectively, the 

‘‘Aggregate Fee Disclosure’’). Any 

Subadvised Fund that employs an 

Affiliated Subadviser will provide 

separate disclosure of any fees paid to 

the Affiliated Subadviser. 

Applicants’ Legal Analysis 

1. Section 15(a) of the Act provides, 

in relevant part, that it is unlawful for 

any person to act as an investment 

adviser to a registered investment 

company except pursuant to a written 

contract that has been approved by a 

vote of a majority of the company’s 

outstanding voting securities. Rule 

18f–2 under the Act provides that each 

series or class of stock in a series 

investment company affected by a 

matter must approve that matter if the 

Act requires shareholder approval. 

2. Form N–1A is the registration 

statement used by open-end investment 

companies. Item 19(a)(3) of Form N–1A 

requires disclosure of the method and 


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Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices 31075 

amount of the investment adviser’s 

compensation. 

3. Rule 20a–1 under the Act requires 

proxies solicited with respect to an 

investment company to comply with 

Schedule 14A under the Securities 

Exchange Act of 1934 (‘‘1934 Act’’). 

Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) 

and 22(c)(9) of Schedule 14A, taken 

together, require a proxy statement for a 

shareholder meeting at which the 

advisory contract will be voted upon to 

include the ‘‘rate of compensation of the 

investment adviser,’’ the ‘‘aggregate 

amount of the investment adviser’s 

fees,’’ a description of the ‘‘terms of the 

contract to be acted upon,’’ and, if a 

change in the advisory fee is proposed, 

the existing and proposed fees and the 

difference between the two fees. 

4. Form N–SAR is the semi-annual 

report filed with the Commission by 

registered investment companies. Item 

48 of Form N–SAR requires investment 

companies to disclose the rate schedule 

for fees paid to their investment 

advisers, including the Subadvisers. 

5. Regulation S–X sets forth the 

requirements for financial statements 

required to be included as part of 

investment company registration 

statements and shareholder reports filed 

with the Commission. Sections 6– 

07(2)(a), (b), and (c) of Regulation S–X 

require that investment companies 

include in their financial statements 

information about investment advisory 

fees. 

6. Section 6(c) of the Act provides that 

the Commission may exempt any 

person, security, or transaction or any 

class or classes of persons, securities, or 

transactions from any provisions of the 

Act, or from any rule thereunder, if such 

exemption is necessary or appropriate 

in the public interest and consistent 

with the protection of investors and the 

purposes fairly intended by the policy 

and provisions of the Act. Applicants 

state that their requested relief meets 

this standard for the reasons discussed 

below. 

7. Applicants assert that the 

shareholders rely on the Adviser’s 

experience to select one or more 

Subadvisers best suited to achieve the 

Subadvised Fund’s investment 

objectives. Applicants assert that, from 

the perspective of the investor, the role 

of the Subadvisers is comparable to that 

of the individual portfolio managers 

employed by traditional investment 

company advisory firms. Applicants 

state that requiring shareholder 

approval of each Subadvisory 

Agreement would impose unnecessary 

delays and expenses on the Subadvised 

Funds, and may preclude the Fund from 

acting promptly in a manner considered 

advisable by the Adviser and the Board. 

Applicants note that each Subadvised 

Fund’s Advisory Agreements and 

Subadvisory Agreements with Affiliated 

Subadvisers (if any) will continue to be 

subject to the shareholder approval 

requirements of section 15(a) of the Act 

and rule 18f–2 under the Act. 

8. Applicants assert that many 

investment advisers use a ‘‘posted’’ rate 

schedule to set their fees. Applicants 

state that while investment advisers are 

willing to negotiate fees that are lower 

than those posted on the schedule, they 

are reluctant to do so where the fees are 

disclosed to other prospective and 

existing customers. Applicants submit 

that the relief requested to use Aggregate 

Fee Disclosure will encourage potential 

Subadvisers to negotiate lower 

subadvisory fees with the Adviser. 

Applicants’ Conditions 

Applicants agree that any order 

granting the requested relief will be 

subject to the following conditions: 

1. Before a Subadvised Fund may rely 

on the order requested in the 

application, the operation of the 

Subadvised Fund in the manner 

described in the application will be 

approved by a majority of the 

Subadvised Fund’s outstanding voting 

securities, as defined in the Act, or, in 

the case of a Subadvised Fund whose 

public shareholders purchase shares on 

the basis of a prospectus containing the 

disclosure contemplated by condition 2 

below, by the sole initial shareholder 

before offering the Subadvised Fund’s 

shares to the public. 

2. The prospectus for each 

Subadvised Fund will disclose the 

existence, substance, and effect of any 

order granted pursuant to the 

application. Each Subadvised Fund will 

hold itself out to the public as 

employing the management structure 

described in the application. The 

prospectus will prominently disclose 

that the Adviser has ultimate 

responsibility (subject to oversight by 

the Board) to oversee the Subadvisers 

and recommend their hiring, 

termination, and replacement. 

3. Within 90 days of the hiring of any 

new Subadviser, the affected 

Subadvised Fund’s shareholders will be 

furnished all information about the new 

Subadviser that would be included in a 

proxy statement, except as modified to 

permit Aggregate Fee Disclosure. This 

information will include Aggregate Fee 

Disclosure and any change in such 

disclosure caused by the addition of the 

new Subadviser. To meet this 

obligation, a Subadvised Fund will 

provide shareholders within 90 days of 

the hiring of a new Subadviser with an 

information statement meeting the 

requirements of Regulation 14C, 

Schedule 14C, and Item 22 of Schedule 

14A under the 1934 Act, except as 

modified by the order to permit 

Aggregate Fee Disclosure. 

4. The Adviser will not enter into a 

Subadvisory Agreement with any 

Affiliated Subadviser without that 

agreement, including the compensation 

to be paid thereunder, being approved 

by the shareholders of the applicable 

Subadvised Fund. 

5. At all times, at least a majority of 

the Board will be Independent 

Directors, and the nomination of new or 

additional Independent Directors will 

be placed within the discretion of the 

then-existing Independent Directors. 

6. When a Subadviser change is 

proposed for a Subadvised Fund with 

an Affiliated Subadviser, the Board, 

including a majority of the Independent 

Directors, will make a separate finding, 

reflected in the applicable Board 

minutes, that such change is in the best 

interests of the Subadvised Fund and its 

shareholders and does not involve a 

conflict of interest from which the 

Adviser or the Affiliated Subadviser 

derives an inappropriate advantage. 

7. Independent legal counsel, as 

defined in rule 0–1(a)(6) under the Act, 

will be engaged to represent the 

Independent Directors. The selection of 

such counsel will be within the 

discretion of the then existing 

Independent Directors. 

8. The Adviser will provide the 

Board, no less frequently than quarterly, 

with information about the profitability 

of the Adviser on a per-Subadvised 

Fund basis. The information will reflect 

the impact on profitability of the hiring 

or termination of any Subadviser during 

the applicable quarter. 

9. Whenever a Subadviser is hired or 

terminated, the Adviser will provide the 

Board with information showing the 

expected impact on the profitability of 

the Adviser. 

10. The Adviser will provide general 

management services to each 

Subadvised Fund, including overall 

supervisory responsibility for the 

general management and investment of 

the Subadvised Fund’s assets and, 

subject to review and approval of the 

Board, will: (i) Set each Subadvised 

Fund’s overall investment strategies; (ii) 

evaluate, select and recommend 

Subadvisers to manage all or part of a 

Subadvised Fund’s assets; (iii) when 

appropriate, allocate and reallocate a 

Subadvised Fund’s assets among 

multiple Subadvisers; (iv) monitor and 

evaluate the performance of 

Subadvisers; and (v) implement 

procedures reasonably designed to 


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31076 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices 

1 15 U.S.C. 78k–1. 

2 17 CFR 242.608. 

3Each Participant executed the proposed 

amendment. The Participants are the American 

Stock Exchange LLC (n/k/a NYSE Amex LLC); 

Boston Stock Exchange, Inc. (n/k/a NASDAQ OMX 

BX, Inc.); Chicago Board Options Exchange, 

Incorporated; Chicago Stock Exchange, Inc.; 

Financial Industry Regulatory Authority, Inc., 

International Securities Exchange, LLC; The 

NASDAQ Stock Market LLC; National Stock 

Exchange, Inc.; New York Stock Exchange LLC 

(‘‘NYSE’’); NYSE Arca, Inc.; and Philadelphia Stock 

Exchange, Inc. (n/k/a NASDAQ OMX PHLX, Inc.). 

4The proposal was originally submitted on June 

19, 2008. However, it was refiled on June 7, 2009 

with appropriate exhibits. 

5Enterprise Cap found in Schedule A–1 of 

Exhibit E to the CTA Plan. 

ensure that the Subadvisers comply 

with each Subadvised Fund’s 

investment objective, policies and 

restrictions. 

11. No director or officer of the 

Company, or director or officer of the 

Adviser, will own directly or indirectly 

(other than through a pooled investment 

vehicle that is not controlled by such 

person) any interest in a Subadviser, 

except for: (i) Ownership of interests in 

the Adviser or any entity that controls, 

is controlled by, or is under common 

control with the Adviser; or (ii) 

ownership of less than 1% of the 

outstanding securities of any class of 

equity or debt of a publicly traded 

company that is either a Subadviser or 

an entity that controls, is controlled by, 

or is under common control with a 

Subadviser. 

12. Each Subadvised Fund will 

disclose in its registration statement the 

Aggregate Fee Disclosure. 

13. In the event the Commission 

adopts a rule under the 1940 Act 

providing substantially similar relief to 

that in the order requested in the 

application, the requested order will 

expire on the effective date of that rule. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–15225 Filed 6–26–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60154; File No. SR–CTA– 

2008–01] 

Consolidated Tape Association; Notice 

of Filing of the Eleventh Charges 

Amendment to the Second 

Restatement of the Consolidated Tape 

Association Plan To Waive the 

Automatic Annual Increase in the 

Enterprise Cap for 2008 

June 19, 2009. 

Pursuant to Section 11A of the 

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 608 thereunder,2

notice is hereby given that on June 7, 

2009, the Consolidated Tape 

Association (‘‘CTA’’) Plan Participants 

(‘‘Participants’’) 3 filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) a proposal to amend 

the Second Restatement of the CTA Plan 

(the ‘‘CTA Plan’’).4 The proposal 

represents the eleventh charges 

amendment to the Plan (‘‘Eleventh 

Charges Amendment’’) and reflects 

changes unanimously adopted by the 

Participants. The Eleventh Charges 

Amendment would waive the 

Automatic Annual Increase for 2008 in 

the maximum monthly charge that a 

broker-dealer is required to pay in 

respect of the aggregate amount of 

Network A display-device charges and 

per-quote-packet charges that a brokerdealer pays in respect of 

nonprofessional subscribers that 

maintain brokerage accounts with the 

broker-dealers (the ‘‘Enterprise Cap’’). 

The Commission is publishing this 

notice to solicit comments from 

interested persons on the proposed 

Eleventh Charges Amendment to the 

CTA Plan. 

I. Rule 608(a) 

A. Description and Purpose of the 

Amendment 

The Plan currently caps the maximum 

monthly charge that a broker-dealer is 

required to pay in respect of the 

aggregate amount of: (1) Network A 

display-device charges for devices that 

the broker-dealer’s officers, partners and 

employees use; plus (2) Network A 

display-device and per-quote-packet 

charges that the broker-dealer pays in 

respect of services that it provides to 

nonprofessional subscribers that are 

brokerage account customers of the 

broker-dealer.5

Footnote 5 to Schedule A–1 of Exhibit 

E to the CTA Plan subjects the 

Enterprise Cap to an automatic annual 

increase. The automatic annual increase 

is equal to ‘‘the percentage increase in 

the annual composite share volume for 

the preceding calendar year, subject to 

a maximum annual increase of five 

percent.’’ 

Through this amendment, the 

Participants propose to amend the CTA 

Plan to waive the automatic annual 

increase in the Enterprise Cap for 2008. 

As a result, the monthly fee will remain 

at $660,000 for 2008, the same amount 

as for 2007. The waiver applies to the 

Enterprise Cap only, and not to the 

‘‘Television Ticker Maximum,’’ also set 

forth in Footnote 6 to Schedule A–1 of 

Exhibit E to the CTA Plan. The 

amendment also proposes to update 

Footnote 6 by applying the automatic 

annual increase to the ‘‘Television 

Ticker Maximum,’’ by bringing that 

monthly fee to $157,000 for 2008. 

The text of the proposed Amendment 

is available on the CTA’s Web site 

(http://www.nysedata.com/cta), at the 

principal office of the CTA, and at the 

Commission’s Public Reference Room. 

B. Additional Information Required by 

Rule 608(a) 

1. Governing or Constituent Documents 

Not applicable. 

2. Implementation of the Amendment 

The Participants propose to 

implement the change upon receipt of 

Commission approval of the 

Amendment. 

3. Development and Implementation 

Phases 

See Item I(B)(2) above. 

4. Analysis of Impact on Competition 

The amendment will impose no 

burden on competition. 

5. Written Understanding or Agreements 

Relating to Interpretation of, or 

Participation in, Plan 

The Participants have no written 

understandings or agreements relating 

to interpretation of the CTA Plan as a 

result of the amendment. 

6. Approval by Sponsors in Accordance 

With Plan 

Under Section IV(b) of the CTA Plan, 

each Plan Participant must execute a 

written amendment to the CTA Plan 

before the amendment can become 

effective. The amendment is so 

executed. 

7. Description of Operation of Facility 

Contemplated by the Proposed 

Amendment 

a. Terms and Conditions of Access 

Not applicable. 

b. Method of Determination and 

Imposition, and Amount of, Fees and 

Charges 

Not applicable. 

c. Method of Frequency of Processor 

Evaluation 

Not applicable. 

d. Dispute Resolution 

Not applicable. 


sroberts on PROD1PC70 with NOTICES