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Code · REGISTER · 2006-10-23 · National Archives and Records Administration (NARA) · Notices

Notices. Notice of availability of proposed records schedules; request for comments

15,891 words·~72 min read·/register/2006/10/23/06-8861·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 7050-01-P NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Records Schedules; Availability and Request for Comments AGENCY: National Archives and Records Administration (NARA). ACTION: Notice of availability of proposed records schedules; request for comments. SUMMARY: The National Archives and Records Administration
(NARA)publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a). DATES: Requests for copies must be received in writing on or before November 22, 2006 (Note that the new time period for requesting copies has changed from 45 to 30 days after publication). Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments. ADDRESSES: You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division
(NWML)using one of the following means: *Mail:* NARA (NWML), 8601 Adelphi Road, College Park, MD 20740-6001. *E-mail:* *requestschedule@nara.gov.* *FAX:* 301-837-3698. Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request. FOR FURTHER INFORMATION CONTACT: Laurence Brewer, Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1539. E-mail: *records.mgt@nara.gov.* SUPPLEMENTARY INFORMATION: Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form
(SF)115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent. No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value. Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request. Schedules Pending (Note that the new time period for requesting copies has changed from 45 to 30 days after publication) 1. Department of Commerce, National Oceanic and Atmospheric Administration (N1-370-06-2, 5 items, 3 temporary items). Inputs, outputs, and master files associated with electronic survey databases maintained by the National Marine Fisheries Service to track species behavior, incidents of disease and mortality, and species abundance data. Proposed for permanent retention are historically significant electronic databases and documentation relating to large-scale, long-term species research. 2. Department of Health and Human Services, Centers for Medicare and Medicaid Services (N1-440-05-1, 9 items, 2 temporary items). Audiovisual records maintained by the Office of External Affairs including exhibits, flyers, and handbills. Proposed for permanent retention are recordkeeping copies of mission related recordings, videos, photographs, graphic arts, publications, and related documentation. 3. Department of Health and Human Services, Centers for Medicare and Medicaid Services (N1-440-05-2, 6 items, 5 temporary items). Records relating to rulemaking including rulemaking records of a routine nature and not requiring the Secretary's signature, internal or pre-decisional documents, public comments, and copies of substantive rulemaking records. Proposed for permanent retention are the recordkeeping copies of substantive rulemaking records consisting of cases that establish legal precedent or rules that require the Secretary's signature. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 4. Department of Health and Human Services, Food and Drug Administration (N1-88-06-2, 19 items, 15 temporary items). Inputs, outputs, master files, and documentation associated with electronic information systems used by the Center for Drug Evaluation and Research to review pediatric drugs, track meetings, formal disputes and resolutions, and environmental assessments, register distributors, and track certain ingredients used in the drug manufacturing process. Proposed for permanent retention are master files and documentation associated with electronic information systems used to register ingredients and substances used in drug manufacturing, and to register all drug applications received by the Center. For all items on this schedule except the master files, the agency is authorized to apply the proposed disposition instructions to any recordkeeping medium. 5. Department of Homeland Security, U.S. Coast Guard (N1-26-06-7, 6 items, 4 temporary items). Records include inputs to an electronic case management system and routine search and rescue case files lacking historical significance. Proposed for permanent retention are recordkeeping copies of historically significant case files, including attachments and enclosures. 6. Department of Homeland Security, U.S. Secret Service (N1-87-06-1, 4 items, 4 temporary items). Land mobile radio voice transmission recordings lacking historical significance, relating to presidential and vice-presidential trips. Recordkeeping copies of significant recordings are covered by a previously approved permanent disposition authority. 7. Department of the Interior, Office of the Secretary (N1-48-06-8, 92 items, 87 temporary items). Records consist of cyber security program and planning files including policies, directives, standards, technical bulletins, guidance, meeting minutes, project plans, enterprise security architecture files, privacy impact assessments, performance reports, and inputs, outputs, master files, and documentation associated with electronic information systems used for the administration of certification and accreditation files and to track incidents and trends. Proposed for permanent retention are recordkeeping copies of the cyber security program court files relating to Indian Fiduciary Trust records. 8. Department of Justice, Bureau of Prisons (N1-129-06-7, 1 item, 1 temporary item). This schedule reduces the retention period for recordkeeping copies of periodic inmate counts at correctional institutions, which were previously approved for disposal. 9. Department of Justice, Federal Bureau of Investigation (N1-65-06-13, 3 items, 1 temporary item). Working papers relating to administrative and operational policies and procedures. Proposed for permanent retention are the recordkeeping copies of policies and procedures. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 10. Department of Justice, Federal Bureau of Investigation (N1-65-06-14, 1 item, 1 temporary item). This schedule requests authority to destroy case number 175-130, item 1A, which pertains exclusively to the investigation of the captioned individual and meets the criteria in previous schedule N1-65-88-3 for permanent retention based on volume. This request responds to a Federal Pre-Trial Diversion Program court order to delete the records of the captioned individual. 11. Department of the Navy, Agency-wide (N1-NU-06-5, 2 items, 2 temporary items). Records relating to the processing of non-U.S. citizens for access to U.S. restricted defense information. Records include requests, approvals, disapprovals, rescissions, polygraph reports, correspondence, and related information. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 12. Department of the Navy, Chief of Naval Operations (N1-NU-06-4, 2 items, 2 temporary items). Forms, correspondence, memorandums, and other records relating to the administration of security reviews of documents prior to publication. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 13. Department of the Navy, Naval Criminal Investigative Service (N1-NU-06-6, 4 items, 4 temporary items). Records relating to the administration of ongoing investigations including tracking forms, plans, and review documents. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 14. Department of the Treasury, Office of Thrift Supervision (N1-483-06-3, 2 items, 2 temporary items). Consumer complaint files and agency-issued charter certificates for the approval of new Federally-chartered savings associations, corporate title changes, office relocations, and charter amendments. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 15. General Services Administration, Federal Acquisition Service (N1-137-06-1, 3 items, 3 temporary items). Inputs, master files, and outputs associated with an electronic information system designed to provide a secure, comprehensive identification system for Federal employees. 16. Government Accountability Office, Agency-wide (N1-411-06-1, 8 items, 7 temporary items). Records consist of administrative support files relating to budget, property management, procurement, security, and travel, investigative files that lack historical significance, facility and equipment safety records, personnel security files, and Personnel Appeals Board case files. Proposed for permanent retention are recordkeeping copies of historically significant records relating to the agency's budget submission and testimony, building management, press releases, publications, and special investigations reflecting significant Comptroller General, public, and/or congressional scrutiny. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 17. Government Accountability Office, Agency-wide (N1-411-06-2, 4 items, 3 temporary items). Records relate to agency audits of federal programs and performance. Included are such records as audit findings and action reports, records documenting interaction with Congress, and scheduled agency appearances at Congressional hearings. Proposed for permanent retention are recordkeeping copies of historically significant audit and engagement records involving issues of far-reaching national or international importance, matters that have a significant impact on agency operations, matters of extensive national media attention, or actions that result in the approval of new Congressional legislation. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 18. Government Accountability Office, Agency-wide (N1-411-06-3, 6 items, 5 temporary items). Records relate to agency policies and policy development, agency organization, and decisions of senior agency executives. Included are such records as legal decisions and opinions, fraud, regulatory, and related oversight records, Comptroller General meeting records, and bid protests. Proposed for permanent retention are recordkeeping copies of claims, senior executives' subject and correspondence files, agency history files, annual reports, publications, legislative histories, and records relating to the Impoundment Control Act. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. 19. National Archives and Records Administration, Office of the Federal Register (N1-64-06-3, 10 items, 9 temporary items). Inputs, outputs, documentation, and system backups associated with the electronic editing and publication of **Federal Register** submissions by Federal agencies. Proposed for permanent retention are recordkeeping copies of submissions signed by the President. 20. National Archives and Records Administration, Information Security Oversight Office (N1-64-06-4, 15 items, 7 temporary items). Records relating to program direction and operations, and administrative responsibilities. Proposed for permanent retention are recordkeeping copies of the director's office files, policy development records, requests for waivers or exemptions, reclassification actions, agency copies of Interagency Security Classification Appeals Panel records, and official reports relating to the classification management programs of Executive agencies. 21. Railroad Retirement Board, Office of the General Counsel (N1-184-06-2, 24 items, 19 temporary items). Correspondence, working files, subject files, reference files, and reports relating to legal and legislative services for the agency, including an electronic database and related records used to handle appeals and hearings regarding disagreements with claims decisions of the board. Proposed for permanent are recordkeeping copies of policy and legal files of the General Counsel, and index files to Digests of Legal Opinions. 22. Social Security Administration, Office of International Programs (N1-47-06-01, 13 items, 13 temporary items). Inputs, outputs, and claim files associated with a Web site used to adjudicate veterans' benefit claims for Filipinos who served in the U.S. armed forces during World War II. 23. Tennessee Valley Authority, Power System Operations (N1-142-06-2, 1 item, 1 temporary item). Case files relating to the review and approval process for power transmission lines and substation construction projects. Included are such records as environmental assessments, public involvement plans, public comment letters, **Federal Register** notices, signed Findings of No Significant Impact, and engineering design records. Dated: October 17, 2006. Michael J. Kurtz, Assistant Archivist for Records Services—Washington, DC. [FR Doc. E6-17620 Filed 10-20-06; 8:45 am] BILLING CODE 7515-01-P NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES National Endowment for the Arts; Arts Advisory Panel Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that two meetings of the Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC 20506 as follows (ending times are approximate): *Media Arts (application review):* November 16-17, 2006 in Room 716. This meeting, from 9 a.m. to 6 p.m. on November 16th and from 9 a.m. to 5:30 p.m. on November 17th, will be closed. *Learning in the Arts (application review):* November 27-29, 2006 in Room 714. A portion of this meeting, from 2:30 p.m. to 3:15 p.m. on November 29th, will be open to the public for a policy discussion. The remainder of the meeting, from 9 a.m. to 5:30 p.m. on November 27th and 28th, and from 9 a.m. to 2:30 p.m. and from 3:15 p.m. to 6 p.m. on November 29th, will be closed. The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of April 8, 2005, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code. Any person may observe meetings, or portions thereof, of advisory panels that are open to the public, and if time allows, may be permitted to participate in the panel's discussions at the discretion of the panel chairman. If you need special accommodations due to a disability, please contact the Office of AccessAbility, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Washington, DC 20506, 202/682-5532, TDY-TDD 202/682-5496, at least seven
(7)days prior to the meeting. Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506, or call 202/682-5691. Dated: October 16, 2006. Kathy Plowitz-Worden, Panel Coordinator, Panel Operations, National Endowment for the Arts. [FR Doc. E6-17616 Filed 10-20-06; 8:45 am] BILLING CODE 7537-01-P NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES National Endowment for the Arts; President's Committee on the Arts and the Humanities: Meeting #60 Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that a meeting of the President's Committee on the Arts and the Humanities
(PCAH)will be held on November 9, 2006, from 2:30 p.m. to 5 p.m. (ending time is tentative). The meeting will be held in the Mt. Vernon, Salon A at the Madison Hotel, 15th and M Streets, NW., Washington, DC 20005. The Committee meeting will begin with a welcome, introductions, and announcements. Updates on Committee programs and activities will follow, including a report on youth arts and humanities projects, specifically the *Coming Up Taller* program. Reports are anticipated from the Chairmen of the National Endowment for the Humanities
(NEH)and the National Endowment for the Arts
(NEA)and the Director of the Institute for Museum and Library Services. Frank Hodsoll, program consultant and former Chairman of the NEA, will make a presentation on project development activity that followed the PCAH's Symposium on Film, Television, Digital Media, and Popular Culture at its most recent Los Angeles meeting. Karen Elias, Acting General Counsel, NEA, will present the annual ethics briefing for members. The meeting will adjourn after discussion of other business, as necessary, and closing remarks. The President's Committee on the Arts and the Humanities was created by Executive Order in 1982, which currently states that the “Committee shall advise, provide recommendations to, and assist the President, the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute of Museum and Library Services on matters relating to the arts and the humanities.” Any interested persons may attend as observers, on a space available basis, but seating is limited. Therefore, for this meeting, individuals wishing to attend are advised to contact Jenny Schmidt of the President's Committee seven
(7)days in advance of the meeting at
(202)682-5560 or write to the Committee at 1100 Pennsylvania Avenue, NW., Suite 526, Washington, DC 20506. Further information with reference to this meeting can also be obtained from Ms. Schmidt. If you need special accommodations due to a disability, please contact Ms. Schmidt through the Office of AccessAbility, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Suite 724, Washington, DC 20506,
(202)682-5532, TDY-TDD
(202)682-5560, at least seven
(7)days prior to the meeting. Dated: October 12, 2005. Kathy Plowitz-Worden, Panel Coordinator, Panel Operations, National Endowment for the Arts. [FR Doc. E6-17617 Filed 10-20-06; 8:45 am] BILLING CODE 7537-01-P NATIONAL SCIENCE FOUNDATION Solicitation for Members of the National Science Board AGENCY: National Science Board Office, National Science Foundation. ACTION: Notice. SUMMARY: The National Science Board (Board) and the National Science Foundation
(NSF)Director are soliciting nominations for evaluation and submission to the President. The Board was established by Congress in 1950 to provide oversight for, and establishes the policies of, NSF. The Board also serves as an independent body of advisors to both the President and Congress on broad national policy issues related to science and engineering research and education. The Board consists of 24 members appointed by the President, with the advice and consent of the Senate, for 6-year terms, in addition to the NSF Director who serves as an *ex officio* Member. Section 4(c) of the National Science Foundation Act of 1950, as amended, states that: “The persons nominated for appointment as members of the Board
(1)shall be eminent in the fields of the basic, medical, or social sciences, engineering, agriculture, education, research management, or public affairs;
(2)shall be selected solely on the basis of established records of distinguished service; and
(3)shall be so selected as to provide representation of the views of scientific and engineering leaders in all areas of the Nation.” DATES: Nominations must be received by December 15, 2006. ADDRESSES: Letters of nomination accompanied by biographical information and a curriculum vita (without publications) may be forwarded to the Chairman, National Science Board, National Science Foundation, 4201 Wilson Boulevard, Room 1220, Arlington, VA 22230. FURTHER INFORMATION CONTACT: Michael P. Crosby, Executive Officer and Board Office Director,
(703)292-7000, *mcrosby@nsf.gov* or Mrs. Susan E. Fannoney, Senior Associate for Operations and Honorary Awards, Board Office (703-292-8096), *sfannone@nsf.gov.* SUPPLEMENTARY INFORMATION: Nominations should include:
(1)The nominee's full name, title, institutional affiliation, and contact information;
(2)the nominee's area(s) of expertise; and
(3)a short description of their qualifications. Russell Moy, Attorney-Advisor. [FR Doc. E6-17604 Filed 10-20-06; 8:45 am] BILLING CODE 7555-01-P NUCLEAR REGULATORY COMMISSION [EA-06-224] In the Matter of USEC Inc. (American Centrifuge Plant) and All Other Persons Who Seek or Obtain Access to Safeguards Information Described Herein; Order Imposing Requirements for the Protection of and Access to Safeguards Information (Effective Immediately) I USEC Inc. (USEC or the Applicant) applied for a license, to be issued in accordance with the Atomic Energy Act
(AEA)of 1954, by the U.S. Nuclear Regulatory Commission (NRC or Commission) authorizing it to construct and operate a uranium enrichment facility, known as the American Centrifuge Plant, in Piketon, Ohio. NRC plans to provide USEC, for its information, copies of Orders issued to Category III facilities on interim measures to enhance physical security at those facilities. Those Orders will contain Safeguards Information. 1 In addition, in the future, the Commission may issue the Applicant additional Orders that require compliance with specific additional security measures to enhance security at the facility. These Orders are also expected to contain Safeguards Information, which cannot be released to the public and must be protected from unauthorized disclosure. Therefore, the Commission is imposing the requirements, as set forth in Attachments A, B, and C of this Order, so that the Applicant can receive these documents. This Order also imposes requirements for the protection of Safeguards Information in the hands of any person, 2 whether or not a Applicant of the Commission, who produces, receives, or acquires Safeguards Information. 1 Safeguards Information is a form of sensitive, unclassified, security-related information that the Commission has the authority to designate and protect under section 147 of the AEA. 2 Person means:
(1)Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the Department of Energy, except that the Department of Energy shall be considered a person with respect to those facilities of the Department specified in section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244), any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and
(2)any legal successor, representative, agent, or agency of the foregoing. On August 8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted. Section 652 of the EPAct amended Section 149 of the AEA to require fingerprinting and a Federal Bureau of Investigation
(FBI)identification and criminal history records check of any person who is to be permitted to have access to Safeguards Information. The NRC's implementation of this requirement cannot await the completion of the Safeguards Information rulemaking, which is underway, because the EPAct fingerprinting and criminal history check requirements for access to Safeguards Information were immediately effective upon enactment of the EPAct. Although the EPAct permits the Commission by rule to except certain categories of individuals from the fingerprinting requirement, which the Commission has done ( *See* 10 CFR 73.59, 71 FR 33,989 (June 13, 2006)), it is unlikely that many Applicant employees are excepted from the fingerprinting requirement by the “fingerprinting relief” rule. Individuals relieved from the fingerprinting and criminal history checks under the relief rule include Federal, State, and local officials and law enforcement personnel; Agreement State inspectors, who conduct security inspections on behalf of the NRC; members of Congress and certain employees of members of Congress or Congressional Committees; representatives of the International Atomic Energy Agency or certain foreign government organizations. In addition, individuals who have a favorably-decided U.S. Government criminal history check within the last five
(5)years, and individuals who have active Federal security clearances (provided in either case that they make available the appropriate documentation), have satisfied the EPAct fingerprinting requirement and need not be fingerprinted again. Therefore, in accordance with Section 149 of the AEA, as amended by the EPAct, the Commission is imposing additional requirements, as set forth by this Order, for access to Safeguards Information so that affected Applicant can obtain and grant access to Safeguards Information. This Order also imposes requirements for access to Safeguards Information by any person, from any person, whether or not a Licensee, Applicant, or Certificate Holder of the Commission or Agreement States. Subsequent to the terrorist events of September 11, 2001, the NRC issued Orders requiring certain entities to implement Additional Security Measures
(ASM)or Compensatory Measures
(CM)for certain radioactive materials. The requirements imposed by these Orders, and certain measures licensees have developed to comply with the Orders, were designated by the NRC as Safeguards Information. For some materials licensees, the storage and handling requirements for the Safeguards Information have been modified from the existing 10 CFR Part 73 Safeguards Information requirements for reactors and fuel cycle facilities that require a higher level of protection; such Safeguards Information is designated as Safeguards Information—Modified Handling (SGI-M). However, the information subject to the SGI-M handling and protection requirements is Safeguards Information, and licensees, applicants, and other persons who seek or obtain access to such Safeguards Information are subject to this Order. II The Commission has broad statutory authority to protect Safeguards Information and prohibit its unauthorized disclosure. Section 147 of the AEA, as amended, grants the Commission explicit authority to “* * * issue such orders, as necessary to prohibit the unauthorized disclosure of safeguards information. * * *” Furthermore, Section 652 of the EPAct amended Section 149 of the AEA to require fingerprinting and an FBI identification and a criminal history records check of each individual who seeks access to Safeguards Information. In addition, no person may have access to Safeguards Information unless the person has an established need-to-know and satisfies the trustworthy and reliability requirements of those Orders. Licensees, applicants, and all persons who produce, receive, or acquire Safeguards Information must ensure proper handling and protection of Safeguards Information, to avoid unauthorized disclosure, in accordance with the specific requirements for the protection of Safeguards Information contained in Attachments A, B, and C. The Commission hereby provides notice that it intends to treat violations of the requirements contained in Attachments A, B, and C, applicable to the handling and unauthorized disclosure of Safeguards Information, as serious breaches of adequate protection of the public health and safety and the common defense and security of the United States. Access to Safeguards Information is limited to those persons who have established a need-to-know the information, and are considered to be trustworthy and reliable, and who satisfy the fingerprinting and criminal history records check required by the EPAct and this Order. A “need-to-know” means a determination by a person having responsibility for protecting Safeguards Information that a proposed recipient's access to Safeguards Information is necessary in the performance of official, contractual, or Applicant duties of employment. The Applicant and all other persons who obtain Safeguards Information must ensure that they develop, maintain, and implement strict policies and procedures for the proper handling of Safeguards Information, to prevent unauthorized disclosure, in accordance with the requirements in Attachments A, B, and C. The Applicant must ensure that all contractors whose employees may have access to Safeguards Information either adhere to the Applicant's policies and procedures on Safeguards Information or develop, maintain, and implement their own acceptable policies and procedures. The Applicant remains responsible for the conduct of its contractors. The policies and procedures necessary to ensure compliance with applicable requirements contained in Attachments A, B, and C must address, at a minimum, the following:
(1)The general performance requirement that each person who produces, receives, or acquires Safeguards Information shall ensure that Safeguards Information is protected against unauthorized disclosure;
(2)protection of Safeguards Information at fixed sites, in use and in storage, and while in transit;
(3)correspondence containing Safeguards Information;
(4)access to Safeguards Information;
(5)preparation, marking, reproduction, and destruction of documents;
(6)external transmission of documents;
(7)use of automatic data processing systems; and
(8)removal of the Safeguards Information category. To provide assurance that the Applicant is implementing appropriate measures to achieve a consistent level of protection to prohibit the unauthorized disclosure of Safeguards Information, the Applicant shall implement the requirements for access to Safeguards Information in this Order, including the requirements in Attachments A, B, and C of this Order. In addition, pursuant to 10 CFR 2.202, I find that in light of the common defense and security matters identified above, which warrant the issuance of this Order, the public health, safety, and interest require that this Order be effective immediately. III Accordingly, pursuant to Sections 53, 62, 63, 81, 147, 149, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, 10 CFR Part 30, 10 CFR Part 40, and 10 CFR Part 70, *It is hereby ordered* , Effective Immediately, that the applicant and all other persons who produce, receive, or acquire the additional security measures identified above (whether draft or final), or who seek or obtain access to Safeguards Information, shall comply with the requirements set forth in this order, including the requirements in Attachments A, B, and C. A. 1. No person may have access to Safeguards Information unless that person has a need-to-know the Safeguards Information, has been fingerprinted or who has a favorably decided FBI identification and criminal history records check, and satisfies all other applicable requirements for access to Safeguards Information. Fingerprinting and the FBI identification and criminal history records check are not required, however, for any person who is relieved from that requirement by 10 CFR 73.59 (71 FR 33,989 (June 13, 2006)) or who has a favorably-decided U.S. Government criminal history check within the last five
(5)years, or who has an active Federal security clearance, provided in each case that the appropriate documentation is made available to the Applicant's NRC-approved reviewing official. 2. No person may have access to any Safeguards Information if the NRC has determined, based on fingerprinting and an FBI identification and criminal history records check, that the person may not have access to Safeguards Information. B. No person may provide Safeguards Information to any other person except in accordance with condition III.A above. Prior to providing Safeguards Information to any person, a copy of this Order shall be provided to that person. C. The Applicant shall comply with the following requirements: 1. The Applicant shall, within twenty
(20)days of the date of this Order, establish and maintain a fingerprinting program that meets the requirements of Attachment C to this Order. 2. The Applicant shall, within twenty
(20)days of the date of this Order, submit the fingerprints of one
(1)individual who needs access to Safeguards Information and who the Applicant nominates as the “reviewing official” for determining access to Safeguards Information by other individuals. The NRC will determine whether this individual (or any subsequent reviewing official) may have access to Safeguards Information and, therefore, will be permitted to serve as the Applicant's reviewing official. 3 The Applicant may, at the same time or later, submit the fingerprints of other individuals to whom the Applicant seeks to grant access to Safeguards Information. Fingerprints shall be submitted and reviewed in accordance with the procedures described in Attachment C of this Order. 3 The NRC's determination of this individual's access to Safeguards Information in accordance with the process described in Enclosure 3 to the transmittal letter of this Order is an administrative determination that is outside the scope of this Order. 3. The Applicant shall, in writing, within twenty
(20)days of the date of this Order, notify the Commission,
(1)If it is unable to comply with any of the requirements described in the Order, including Attachments A, B, and C, or
(2)if compliance with any of the requirements is unnecessary in its specific circumstances. The notification shall provide the Applicant's justification for seeking relief from or variation of any specific requirement. Applicant responses to C.1., C.2., and C.3. above shall be submitted to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, Applicant responses shall be marked as “Security-Related Information—Withhold Under 10 CFR 2.390.” The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions, on demonstration of good cause by the Applicant. IV In accordance with 10 CFR 2.202, the Applicant must, and any other person adversely affected by this Order may, submit an answer to this Order, and may request a hearing on this Order, within twenty
(20)days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time in which to submit an answer or request a hearing must be made in writing to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically set forth the matters of fact and law on which the Applicant or other person adversely affected relies, and the reasons as to why the Order should not have been issued. Any answer or request for a hearing shall be submitted to the Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; to the Assistant General Counsel for Materials Litigation and Enforcement, at the same address; and to the Applicant, if the answer or hearing request is by a person other than the Applicant. Because of possible delays in delivery of mail to United States Government offices, it is requested that answers and requests for hearing be transmitted to the Secretary of the Commission, either by means of facsimile transmission, to 301-415-1101, or by e-mail, to *hearingdocket@nrc.gov* ; and also to the Office of the General Counsel, either by means of facsimile transmission, to 301-415-3725, or by e-mail, to *OGCMailCenter@nrc.gov* . If a person other than the Applicant requests a hearing, that person shall set forth with particularity the manner in which their interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309. If a hearing is requested by the Applicant or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. Pursuant to 10 CFR 2.202(c)(2)(i), the Applicant may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section III above shall be final twenty
(20)days from the date of this Order, without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section III shall be final when the extension expires, if a hearing request has not been received. An answer or a request for hearing shall not stay the immediate effectiveness of this order. Dated this 4th day of October 2006. For The Nuclear Regulatory Commission. Jack R. Strosnider, Director, Office of Nuclear Material Safety and Safeguards. Attachment A—Modified Handling Requirements for the Protection of Certain Safeguards Information (SGI-M) General Requirement Information and material that the U.S. Nuclear Regulatory Commission
(NRC)determines are safeguards information must be protected from unauthorized disclosure. In order to distinguish information needing modified protection requirements from the safeguards information for reactors and fuel cycle facilities that require a higher level of protection, the term “Safeguards Information—Modified Handling” (SGI-M) is being used as the distinguishing marking for certain materials licensees. Each person who produces, receives, or acquires SGI-M shall ensure that it is protected against unauthorized disclosure. To meet this requirement, applicants, licensees, and persons shall establish and maintain an information protection system that includes the measures specified below. Information protection procedures employed by State and local police forces are deemed to meet these requirements. Persons Subject to These Requirements Any person, whether or not an applicant or licensee of the NRC, who produces, receives, or acquires SGI-M is subject to the requirements (and sanctions) of this document. Firms and their employees that supply services or equipment to materials licensees fall under this requirement if they possess SGI-M. An applicant or licensee must inform contractors and suppliers of the existence of these requirements and the need for proper protection. (See more under Conditions for Access) State or local police units who have access to SGI-M are also subject to these requirements. However, these organizations are deemed to have adequate information protection systems. The conditions for transfer of information to a third party, i.e., need-to-know, would still apply to the police organization as would sanctions for unlawful disclosure. Again, it would be prudent for applicants and licensees who have arrangements with local police to advise them of the existence of SGI-M requirements. Criminal and Civil Sanctions The Atomic Energy Act of 1954, as amended, explicitly provides that any person, “whether or not a licensee of the Commission, who violates any regulations adopted under this section shall be subject to the civil monetary penalties of section 234 of this Act.” Furthermore, willful violation of any regulation or order governing safeguards information is a felony subject to criminal penalties in the form of fines or imprisonment, or both. See sections 147b. and 223 of the Act. Conditions for Access Access to SGI-M beyond the initial recipients of the order will be governed by the background check requirements imposed by the order. Access to SGI-M by applicant or licensee employees, agents, or contractors must include both an appropriate need-to-know determination by the applicant or licensee, as well as a determination concerning the trustworthiness of individuals having access to the information. Employees of an organization affiliated with the applicant's or licensee's company, *e.g.* , a parent company, may be considered as employees of the applicant or licensee for access purposes. Need-To-Know Need-to-know is defined as a determination by a person having responsibility for protecting SGI-M that a proposed recipient's access to SGI-M is necessary in the performance of official, contractual, or applicant or licensee duties of employment. The recipient must be made aware that the information is SGI-M and those having access to it are subject to these requirements as well as criminal and civil sanctions for mishandling the information. Occupational Groups Dissemination of SGI-M is limited to individuals who have an established need-to-know and who are members of certain occupational groups. These occupational groups are: 1. An employee, agent, or contractor of an applicant, a licensee, the Commission, or the United States Government; 2. A member of a duly authorized committee of the Congress; 3. The Governor of a State or his designated representative; 4. A representative of the International Atomic Energy Agency
(IAEA)engaged in activities associated with the U.S./IAEA Safeguards Agreement who has been certified by the NRC; 5. A member of a state or local law enforcement authority that is responsible for responding to requests for assistance during safeguards emergencies; 6. A person to whom disclosure is ordered pursuant to Section 2.744(e) of Part 2 of part 10 of the Code of Federal Regulations; or 7. State Radiation Control Program Directors (and State Homeland Security Directors) or their designees. In a generic sense, the individuals described above in
(A)through
(G)are considered to be trustworthy by virtue of their employment status. For non-governmental individuals in group
(A)above, a determination of reliability and trustworthiness is required. Discretion must be exercised in granting access to the individuals in group (A). If there is any indication that the recipient would be unwilling or unable to provide proper protection for the SGI-M, they are not authorized to receive SGI-M. Information Considered for Safeguards Information Designation Information deemed SGI-M is information the disclosure of which could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of theft, diversion, or sabotage of materials or facilities subject to NRC jurisdiction. SGI-M identifies safeguards information which is subject to these requirements. These requirements are necessary in order to protect quantities of nuclear material significant to the health and safety of the public or common defense and security. The overall measure for consideration of SGI-M is the usefulness of the information (security or otherwise) to an adversary in planning or attempting a malevolent act. The specificity of the information increases the likelihood that it will be useful to an adversary. Protection While in Use While in use, SGI-M shall be under the control of an authorized individual. This requirement is satisfied if the SGI-M is attended by an authorized individual even though the information is in fact not constantly being used. SGI-M, therefore, within alarm stations, continuously manned guard posts or ready rooms need not be locked in file drawers or storage containers. Under certain conditions the general control exercised over security zones or areas would be considered to meet this requirement. The primary consideration is limiting access to those who have a need-to-know. Some examples would be: Alarm stations, guard posts and guard ready rooms; Engineering or drafting areas if visitors are escorted and information is not clearly visible; Plant maintenance areas if access is restricted and information is not clearly visible; Administrative offices ( *e.g.* , central records or purchasing) if visitors are escorted and information is not clearly visible. Protection While in Storage While unattended, SGI-M shall be stored in a locked file drawer or container. Knowledge of lock combinations or access to keys protecting SGI-M shall be limited to a minimum number of personnel for operating purposes who have a “need-to-know” and are otherwise authorized access to SGI-M in accordance with these requirements. Access to lock combinations or keys shall be strictly controlled so as to prevent disclosure to an unauthorized individual. Transportation of Documents and Other Matter Documents containing SGI-M when transmitted outside an authorized place of use or storage shall be enclosed in two sealed envelopes or wrappers. The inner envelope or wrapper shall contain the name and address of the intended recipient, and be marked both sides, top and bottom with the words “Safeguards Information—Modified Handling.” The outer envelope or wrapper must be addressed to the intended recipient, must contain the address of the sender, and must not bear any markings or indication that the document contains SGI-M. SGI-M may be transported by any commercial delivery company that provides nationwide overnight service with computer tracking features, U.S. first class, registered, express, or certified mail, or by any individual authorized access pursuant to these requirements. Within a facility, SGI-M may be transmitted using a single opaque envelope. It may also be transmitted within a facility without single or double wrapping, provided adequate measures are taken to protect the material against unauthorized disclosure. Individuals transporting SGI-M should retain the documents in their personal possession at all times or ensure that the information is appropriately wrapped and also secured to preclude compromise by an unauthorized individual. Preparation and Marking of Documents While the NRC is the sole authority for determining what specific information may be designated as “SGI-M,” originators of documents are responsible for determining whether those documents contain such information. Each document or other matter that contains SGI-M shall be marked “Safeguards Information—Modified Handling” in a conspicuous manner on the top and bottom of the first page to indicate the presence of protected information. The first page of the document must also contain
(i)The name, title, and organization of the individual authorized to make a SGI-M determination, and who has determined that the document contains SGI-M,
(ii)the date the document was originated or the determination made,
(iii)an indication that the document contains SGI-M, and
(iv)an indication that unauthorized disclosure would be subject to civil and criminal sanctions. Each additional page shall be marked in a conspicuous fashion at the top and bottom with letters denoting “Safeguards Information—Modified Handling.” In additional to the “Safeguards Information—Modified Handling” markings at the top and bottom of page, transmittal letters or memoranda which do not in themselves contain SGI-M shall be marked to indicate that attachments or enclosures contain SGI-M but that the transmittal does not ( *e.g.* , “When separated from SGI-M enclosure(s), this document is decontrolled”). In addition to the information required on the face of the document, each item of correspondence that contains SGI-M shall, by marking or other means, clearly indicate which portions ( *e.g.* , paragraphs, pages, or appendices) contain SGI-M and which do not. Portion marking is not required for physical security and safeguards contingency plans. All documents or other matter containing SGI-M in use or storage shall be marked in accordance with these requirements. A specific exception is provided for documents in the possession of contractors and agents of applicants or licensees that were produced more than one year prior to the effective date of the order. Such documents need not be marked unless they are removed from file drawers or containers. The same exception applies to old documents stored away from the facility in central files or corporation headquarters. Since information protection procedures employed by State and local police forces are deemed to meet NRC requirements, documents in the possession of these agencies need not be marked as set forth in this document. Removal from SGI-M Category Documents containing SGI-M shall be removed from the SGI-M category (decontrolled) only after the NRC determines that the information no longer meets the criteria of SGI-M. Applicants and licensees have the authority to make determinations that specific documents which they created no longer contain SGI-M information and may be decontrolled. Consideration must be exercised to ensure that any document decontrolled shall not disclose SGI-M in some other form or be combined with other unprotected information to disclose SGI-M. The authority to determine that a document may be decontrolled may be exercised only by, or with the permission of, the individual (or office) who made the original determination. The document shall indicate the name and organization of the individual removing the document from the SGI-M category and the date of the removal. Other persons who have the document in their possession should be notified of the decontrolling of the document. Reproduction of Matter Containing SGI-M SGI-M may be reproduced to the minimum extent necessary consistent with need without permission of the originator. Newer digital copiers which scan and retain images of documents represent a potential security concern. If the copier is retaining any information in memory, the copier cannot be connected to a network. It should also be placed in a location that is cleared and controlled for the authorized processing of SGI-M information. Different copiers have different capabilities, including some which come with features that allow the memory to be erased. Each copier would have to be examined from a physical security perspective. Use of Automatic Data Processing
(ADP)Systems SGI-M may be processed or produced on an ADP system provided that the system is assigned to the applicant's, licensee's, or contractor's facility and requires the use of an entry code/password for access to stored information. Applicants or licensees must process this information in a computing environment that has adequate computer security controls in place to prevent unauthorized access to the information. An ADP system is defined here as a data processing system having the capability of long term storage of information. Word processors such as typewriters are not subject to the requirements as long as they do not transmit information off-site. ( **Note:** if SGI-M is produced on a typewriter, the ribbon must be removed and stored in the same manner as other SGI-M information or media.) The basic objective of these restrictions is to prevent access and retrieval of stored SGI-M by unauthorized individuals, particularly from remote terminals. Specific files containing SGI-M will be password protected to preclude access by an unauthorized individual. SGI-M files may be transmitted over a network if the file is encrypted. In such cases, the applicant or licensee will select a commercially available encryption system that National Institute of Standards and Technology
(NIST)has validated as conforming to Federal Information Processing Standards (FIPS). SGI-M files shall be properly labeled as “Safeguards Information—Modified Handling” and saved to removable media and stored in a locked file drawer or cabinet. The NIST maintains a listing of all validated encryption systems at *http://csrc.nist.gov/cryptval/140-1/1401val.htm.* Telecommunications SGI-M may not be transmitted by unprotected telecommunications circuits except under emergency or extraordinary conditions. For the purpose of this requirement, emergency or extraordinary conditions are defined as any circumstances that require immediate communications in order to report, summon assistance for, or respond to a security event (or an event that has potential security significance). This restriction applies to telephone, telegraph, teletype, facsimile circuits, and to radio. Routine telephone or radio transmission between site security personnel, or between the site and local police, should be limited to message formats or codes that do not disclose facility security features or response procedures. Similarly, call-ins during transport should not disclose information useful to a potential adversary. Infrequent or non-repetitive telephone conversations regarding a physical security plan or program are permitted provided that the discussion is general in nature. Individuals should use care when discussing SGI-M at meetings or in the presence of others to ensure that the conversation is not overheard by persons not authorized access. Transcripts, tapes or minutes of meetings or hearings that contain SGI-M shall be marked and protected in accordance with these requirements. Destruction Documents containing SGI-M must be destroyed when no longer needed. They may be destroyed by tearing into small pieces, burning, shredding or any other method that precludes reconstruction by means available to the public at large. Piece sizes one half inch or smaller composed of several pages or documents and thoroughly mixed are considered completely destroyed. Attachment B—Trustworthiness and Reliability Requirements for Individuals Handling Safeguards Information Applicants or licensees shall document the basis for concluding that there is reasonable assurance that individuals granted access to safeguards information are trustworthy and reliable, and do not constitute an unreasonable risk for malevolent use of the regulated material. The trustworthiness, reliability, and verification of an individual's true identity shall be determined based on a background investigation. The background investigation shall address at least the past three
(3)years, and, as a minimum, include a Federal Bureau of Investigation fingerprinting and criminal history check, verification of employment history, education, employment eligibility, credit check, and personal references. If an individual's employment has been less than the required three
(3)year period, educational references may be used in lieu of employment history. The applicant's or licensee's background investigation requirements may be satisfied for an individual that has an active Federal security clearance. Attachment C—Requirements for Fingerprinting and Criminal History Checks of Individuals When Applicant's or Licensee's Reviewing Official is Determining Access to Safeguards Information General Requirements Applicants and licensees shall comply with the requirements of this attachment. 1. a. Each applicant or licensee subject to the provisions of this attachment shall fingerprint each individual who is seeking or permitted access to Safeguards Information (SGI). The Applicant or Licensee shall review and use the information received from the Federal Bureau of Investigation
(FBI)and ensure that the provisions contained in the subject Order and this attachment are satisfied. b. The Applicant or Licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information” section of this attachment. c. Fingerprints need not be taken if an employed individual ( *e.g.* , an applicant or licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.59, has a favorably-decided U.S. Government criminal history check within the last five
(5)years, or has an active Federal security clearance. Written confirmation from the Agency/employer which granted the Federal security clearance or reviewed the criminal history check must be provided. The Applicant or Licensee must retain this documentation for a period of three
(3)years from the date the individual no longer requires access to SGI associated with the Applicant's or Licensee's activities. d. All fingerprints obtained by the Applicant or Licensee pursuant to this Order must be submitted to the Commission for transmission to the FBI. e. The Applicant or Licensee shall review the information received from the FBI and consider it, in conjunction with the trustworthy and reliability requirements, in making a determination whether to grant access to Safeguards Information to individuals who have a need-to-know the SGI. f. The Applicant or Licensee shall use any information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for access to Safeguards Information. g. The Applicant or Licensee shall document the basis for its determination whether to grant access to SGI. 2. The Applicant or Licensee shall notify the NRC of any desired change in reviewing officials. The NRC will determine whether the individual nominated as the new reviewing official may have access to Safeguards Information based on a previously-obtained or new criminal history check and, therefore, will be permitted to serve as the Applicant's or Licensee's reviewing official. Prohibitions The Applicant or Licensee shall not base a final determination to deny an individual access to Safeguards Information solely on the basis of information received from the FBI involving: an arrest more than one
(1)year old for which there is no information of the disposition of the case, or an arrest that resulted in dismissal of the charge or an acquittal. The Applicant or Licensee shall not use information received from a criminal history check obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the Applicant or Licensee use the information in any way which would discriminate among individuals on the basis of race, religion, national origin, sex, or age. Procedures for Processing Fingerprint Checks For the purpose of complying with this Order, the Applicant or Licensee shall, using an appropriate method listed in 10 CFR 73.4, submit to the NRC's Division of Facilities and Security, Mail Stop T-6E46, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking access to Safeguards Information, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling
(301)415-5877, or by e-mail to *forms@nrc.gov.* Practicable alternative formats are set forth in 10 CFR 73.4. The Applicant or Licensee shall establish procedures to ensure that the quality of the fingerprints taken results in minimizing the rejection rate of fingerprint cards due to illegible or incomplete cards. The NRC will review submitted fingerprint cards for completeness. Any Form FD-258 fingerprint record containing omissions or evident errors will be returned to the Applicant for corrections. The fee for processing fingerprint checks includes one re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee. Fees for processing fingerprint checks are due upon application. Applicants or licensees shall submit payment with the application for processing fingerprints by corporate check, certified check, cashier's check, money order, or electronic payment, made payable to “U.S. NRC.” [For guidance on making electronic payments, contact the Facilities Security Branch, Division of Facilities and Security, at
(301)415-7739]. Combined payment for multiple applications is acceptable. The application fee (currently $27) is the sum of the user fee charged by the FBI for each fingerprint card or other fingerprint record submitted by the NRC on behalf of the Applicant or Licensee, and an NRC processing fee, which covers administrative costs associated with NRC handling of Applicant or Licensee fingerprint submissions. The Commission will directly notify applicants or licensees who are subject to this regulation of any fee changes. The Commission will forward to the submitting Applicant or Licensee all data received from the FBI as a result of the Applicant's or Licensee's application(s) for criminal history checks, including the FBI fingerprint record. Right To Correct and Complete Information Prior to any final adverse determination, the Applicant or Licensee shall make available to the individual the contents of any criminal records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the Applicant or Licensee for a period of one
(1)year from the date of the notification. If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency ( *i.e.* , law enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division, Washington, DC 20537-9700 (as set forth in 28 CFR 16.30 through 16.34). In the latter case, the FBI forwards the challenge to the agency that submitted the data and requests that agency to verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supplied by that agency. The Applicant or Licensee must provide at least ten
(10)days for an individual to initiate an action challenging the results of an FBI criminal history records check after the record is made available for his/her review. The Applicant or Licensee may make a final SGI access determination based upon the criminal history record only upon receipt of the FBI's ultimate confirmation or correction of the record. Upon a final adverse determination on access to SGI, the Applicant or Licensee shall provide the individual its documented basis for denial. Access to SGI shall not be granted to an individual during the review process. Protection of Information 1. Each Applicant or Licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures for protecting the record and the personal information from unauthorized disclosure. 2. The Applicant or Licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining access to Safeguards Information. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have a need-to-know. 3. The personal information obtained on an individual from a criminal history record check may be transferred to another Applicant or Licensee if the Applicant or Licensee holding the criminal history check record receives the individuals' written request to re-disseminate the information contained in his/her file, and the gaining Applicant or Licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes. 4. The Applicant or Licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws. 5. The Applicant or Licensee shall retain all fingerprint and criminal history records received from the FBI, or a copy if the individual's file has been transferred, for three
(3)years after termination of employment or denial of access to SGI. After the required three
(3)year period, these documents shall be destroyed by a method that will prevent reconstruction of the information in whole or in part. [FR Doc. E6-17726 Filed 10-20-06; 8:45 am] BILLING CODE 7590-01-P SECURITIES AND EXCHANGE COMMISSION Proposed Collection; Comment Request *Upon Written Request, Copies Available From:* U.S. Securities and Exchange Commission, Office of Filing and Information Services, Washington, DC 20549. *Extension:* Rule 35d-1, SEC File No. 270-491, OMB Control No. 3235-0548. Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collections of information summarized below. The Commission plans to submit these existing collections of information to the Office of Management and Budget (“OMB”) for extension and approval. Rule 35d-1 (17 CFR 270.35d-1) under the Investment Company Act of 1940 (15 U.S.C. 80a-1 *et seq.* ) generally requires that investment companies with certain names invest at least 80% of their assets according to what their names suggest. The rule provides that an affected investment company must either adopt this 80% requirement as a fundamental policy or adopt a policy to provide notice to shareholders at least 60 days prior to any change in its 80% investment policy. This preparation and delivery of the notice to existing shareholders is a collection of information within the meaning of the Act. The Commission estimates that there are 7,200 open-end and closed-end management investment companies and series that have descriptive names that are governed by the rule. The Commission estimates that of these 7,200 investment companies, approximately 24 provide prior notice to their shareholders of a change in their investment policies per year. The Commission estimates that the annual burden associated with the notice requirement of the rule is 20 hours per affected investment company or series. The total burden hours for Rule 35d-1 is 480 per year in the aggregate (24 responses × 20 hours per response). Estimates of average burden hours are made solely for the purposes of the Act, and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. The collection of information under Rule 35d-1 is mandatory. The information provided under Rule 35d-1 is not kept confidential. The Commission may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Written comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of the burden of the collection of information;
(c)ways to enhance the quality, utility, and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, c/o Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to: *PRA_Mailbox@sec.gov* . Dated: October 16, 2006. Nancy M. Morris, Secretary. [FR Doc. E6-17618 Filed 10-20-06; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 27518; 812-13043] Pioneer America Income Trust, et al., Notice of Application October 16, 2006. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Notice of application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A) and
(B)of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act. *Summary of the Applications:* The order would permit certain registered open-end management investment companies to acquire shares of other registered open-end management investment companies both within and outside the same group of investment companies. *Applicants:* Pioneer America Income Trust, Pioneer Balanced Fund, Pioneer Bond Fund, Pioneer Emerging Growth Fund, Pioneer Emerging Markets Fund, Pioneer Equity Income Fund, Pioneer Equity Opportunity Fund, Pioneer Europe Select Equity Fund, Pioneer Fund, Pioneer Fundamental Growth Fund, Pioneer Global High Yield Fund, Pioneer Growth Shares, Pioneer High Yield Fund, Pioneer Ibbotson Asset Allocation Series, Pioneer Independence Fund, Pioneer International Equity Fund, Pioneer International Value Fund, Pioneer Mid Cap Growth Fund, Pioneer Mid Cap Value Fund, Pioneer Money Market Trust, Pioneer Real Estate Shares, Pioneer Research Fund, Pioneer Select Equity Fund, Pioneer Select Value Fund, Pioneer Series Trust I, Pioneer Series Trust II, Pioneer Series Trust III, Pioneer Series Trust IV, Pioneer Series Trust V, Pioneer Short Term Income Fund, Pioneer Small Cap Value Fund, Pioneer Strategic Income Fund, Pioneer Tax Free Income Fund, Pioneer Value Fund, Pioneer Variable Contracts Trust (each a “Fund”) and Pioneer Investment Management, Inc. (“PIM”). *Filing Dates:* The application was filed on November 12, 2003, and amended on September 22, 2006. *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 November 9, 2006, 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, 60 State Street, Boston, MA 02109. FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel, at
(202)551-6817 and Mary Kay Frech, Branch Chief, at
(202)551-6821 (Office of Investment Company Regulations, Division of Investment Management). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 100 F Street NE., Washington, DC 20549-0102,
(202)551-5850. Applicants' Representations 1. Each of the Funds is an open-end management investment company registered under the Act. Certain of the Funds are comprised of separate series (each series, also a “Fund”). Pioneer Variable Contracts Trust serves as a funding vehicle for separate accounts registered under the Act (“Registered Separate Accounts”) and separate accounts exempt from registration under the Act (“Unregistered Separate Accounts,” together with the Registered Separate Accounts, the “Separate Accounts”) of unaffiliated insurance companies. PIM is an investment adviser registered under the Investment Advisers Act of 1940. 1 2. Applicants request relief to permit certain Funds (the “Funds of Funds”) to acquire shares of registered open-end management investment companies that are part of the same group of investment companies, as defined in section 12(d)(1)(G)(ii) of the Act, as the Funds (“Same Group Funds”) and shares of registered open-end management investment companies that are not part of the same group of investment companies as the Funds (“Other Group Funds,” together with Same Group Funds, the “Underlying Funds”) in excess of the limits set forth in section 12(d)(1)(A) of the Act, and Same Group Funds and Other Group Funds, their principal underwriter, and any broker or dealer to sell their shares to the Fund of Funds in excess of the limits set forth in section 12(d)(1)(B) of the Act. 2 Applicants also seek relief to permit Same Group Funds and Other Group Funds that are affiliated persons of a Fund of Funds to sell shares to, and redeem shares from, the Fund of Funds. Each Fund of Funds may also make direct investments, including stocks, bonds and other securities, which are consistent with its investment objective. 3. Applicants state that each Fund of Funds will provide an efficient and simple method of allowing investors to create either a comprehensive asset allocation program or achieve diversification in the market with just one investment. Applicants assert that the Fund of Funds structure is helpful for investors who are able to identify their investment goals but are not comfortable deciding how to invest their assets to achieve those goals. Applicants' Legal Analysis A. Section 12(d)(1) of the Act 1. Section 12(d)(1)(A) prohibits a registered investment company from acquiring shares of any other investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company or, together with the securities of other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) prohibits a registered open-end investment company, its principal underwriter and any broker or dealer from selling shares of the company to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's outstanding voting stock or more than 10% of the acquired company's voting stock to be owned by investment companies generally. 2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security or transaction from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) to permit a Fund of Funds to acquire shares of Same Group Funds and Other Group Funds, and Same Group Funds and Other Group Funds and their principal underwriter and any broker or dealer to sell shares to a Fund of Funds, beyond the limits set forth in sections 12(d)(1)(A) and
(B)of the Act. 3. Applicants state that the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors. 4. Applicants state that the proposed arrangement will not result in undue influence by a Fund of Funds or its affiliates over any Other Group Fund. To limit the influence that a Fund of Funds may have over an Other Group Fund, applicants propose a condition prohibiting (a)(i) the Manager,
(ii)any person controlling, controlled by or under common control with the Manager, and
(iii)any investment company or issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act advised by the Manager or any person controlling, controlled by or under common control with the Manager (collectively, the “Group”), and (b)(i) any investment adviser within the meaning of section 2(a)(20)(B) of the Act (“Subadviser”) of a Fund of Funds,
(ii)any person controlling, controlled by or under common control with the Subadviser, and
(iii)any investment company or issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act (or portion of such investment company or issuer) advised by the Subadviser or any person controlling, controlled by or under common control with the Subadviser (collectively, the “Subadviser Group”) from controlling (individually or in the aggregate) an Other Group Fund within the meaning of section 2(a)(9) of the Act. 5. Applicants also propose conditions 2-7, stated below, to preclude a Fund of Funds and its affiliated entities from taking advantage of an Other Group Fund with respect to transactions between the entities and to ensure the transactions will be on an arm's length basis. Condition 2 precludes a Fund of Funds and its Manager, any Subadviser, promoter, principal underwriter and any person controlling, controlled by or under common control with any of these entities (each, a “Fund of Funds Affiliate”) from causing any existing or potential investment by the Fund of Funds in an Other Group Fund to influence the terms of any services or transactions between the Fund of Funds or a Fund of Funds Affiliate and the Other Group Fund or its investment adviser(s), promoter, principal underwriter and any person controlling, controlled by or under common control with any of these entities (each, an “Other Group Fund Affiliate”). Condition 5 precludes a Fund of Funds and Fund of Funds Affiliates (except to the extent they are acting in their capacity as an investment adviser to an Other Group Fund) from causing an Other Group Fund to purchase a security in an offering of securities during the existence of any underwriting or selling syndicate of which a principal underwriter is an officer, director, member of an advisory board, Manager, Subadviser or employee of a Fund of Funds, or a person of which any such officer, director, member of an advisory board, Manager, Subadviser or employee is an affiliated person (each, an “Underwriting Affiliate,” except any person whose relationship to the Other Group Fund is covered by section 10(f) of the Act is not an Underwriting Affiliate). An offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate is an “Affiliated Underwriting.” 1 Applicants also request relief for any other registered open-end management investment company, or series thereof, that currently or in the future is part of the same group of investment companies, as defined in section 12(d)(1)(G)(ii) of the Act, as the Funds (included in the term “Funds”) and is advised by PIM or an entity controlling, controlled by or under common control with PIM (together with PIM, the “Manager”). All entities that currently intend to rely on the requested order are named as applicants. Any other entities that rely on the order in the future will comply with the terms and conditions of the application. 2 The initial Funds of Funds are Pioneer Ibbotson Conservative Allocation Fund, Pioneer Ibbotson Moderate Allocation Fund, Pioneer Ibbotson Growth Allocation Fund and Pioneer Ibbotson Aggressive Allocation Fund, each a series of Pioneer Ibbotson Asset Allocation Series, and Pioneer Ibbotson Moderate Allocation VCT Portfolio, Pioneer Ibbotson Growth Allocation VCT Portfolio, and Pioneer Ibbotson Aggressive Allocation VCT Portfolio, each a series of Pioneer Variable Contracts Trust. 6. In addition, as an assurance that an Other Group Fund understands the implications of an investment by a Fund of Funds operating in reliance on the requested exemptive relief from sections 12(d)(1)(A) and (B), prior to any investment by a Fund of Funds in the Other Group Fund in excess of the limit set forth in section 12(d)(1)(A)(i), condition 8 requires the Fund of Funds and the Other Group Fund to execute an agreement stating, without limitation, that their boards of directors or trustees and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. Applicants note that the Other Group Fund has the right to reject an investment from a Fund of Funds. 7. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. With respect to investment advisory fees, applicants state that, prior to reliance on the order and subsequently in connection with the approval of any investment advisory contract under section 15 of the Act, the board of directors or trustees of a Fund of Funds (“Board”), including a majority of the directors or trustees who are not “interested persons,” as defined in section 2(a)(19) of the Act (“Independent Trustees”), will find that the advisory fees charged to the Fund of Funds under its investment advisory contract(s) are based on services provided that are in addition to, rather than duplicative of, services provided under the investment advisory contract(s) of any Same Group Fund and Other Group Fund. Applicants further state that the Manager to a Fund of Funds will waive fees otherwise payable to the Manager by a Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to a plan adopted by the Other Group Fund under rule 12b-1 under the Act (“12b-1 Fees”)) received from the Other Group Fund by the Manager, or an affiliated person of the Manager, other than any advisory fees paid to the Manager or its affiliated person, in connection with the investment by the Fund of Funds in the Other Group Fund. Applicants also state that any Subadviser to a Fund of Funds will waive fees otherwise payable to the Subadviser by the Fund of Funds in an amount at least equal to any compensation received from the Other Group Fund by the Subadviser, or an affiliated person of the Subadviser, other than any advisory fees paid to the Subadviser or its affiliated person, in connection with the investment by the Fund of Funds in the Other Group Fund made at the direction of the Subadviser. Applicants agree that the benefit of any such waiver by a Subadviser will be passed through to the Fund of Funds. 8. Applicants represent that the aggregate sales charges and/or service fees (as defined in the NASD Conduct Rules) charged with respect to any Fund of Funds will not exceed the limits applicable to funds of funds set forth in NASD Conduct Rule 2830 (“Rule 2830”). Applicants also represent that with respect to Registered Separate Accounts that invest in a Fund of Funds, no sales load will be charged at the Fund of Funds level or at the Underlying Fund level. Moreover, the prospectus and sales literature for a Fund of Funds will contain clear, concise, “plain English” disclosure tailored to the particular document designed to inform investors of the unique characteristics of the Fund of Funds' structure, including but not limited to, its expense structure and the additional expenses of investing in Same Group Funds and Other Group Funds. Each Fund of Funds will comply with the disclosure requirements concerning aggregate costs of investing in the Underlying Funds set forth in Investment Company Act Release No. 27399 by the compliance date set forth therein. 9. Applicants contend that the proposed arrangement will not create an overly complex fund structure. Applicants note that the Underlying Funds will be prohibited from acquiring securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A), except to the extent that such Underlying Fund
(a)receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1)); or
(b)acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to
(i)acquire securities of one or more affiliated investment companies for short-term cash management purposes or
(ii)engage in interfund borrowing and lending transactions. B. Section 17(a) of the Act 1. Section 17(a) generally prohibits purchases and sales of securities, on a principal basis, between a registered investment company and any affiliated person or promoter of, or principal underwriter for, the company, and affiliated persons of such persons. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include, among other things, any person directly or indirectly owning, controlling or holding with power to vote 5% or more of the other's outstanding voting securities; any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the other person; any person directly or indirectly controlling, controlled by or under common control with the other person; and any investment adviser to an investment company. 2. Section 17(b) authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that
(a)the terms of the proposed transaction, including the consideration to be paid and received, are fair and reasonable and do not involve overreaching on the part of any person concerned;
(b)the proposed transaction is consistent with the policies of each registered investment company concerned; and
(c)the proposed transaction is consistent with the general purposes of the Act. Section 6(c) permits the Commission to exempt any person or transaction, or any class or classes of persons or transactions from any provisions of the Act, 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. 3. Applicants state that a Fund of Funds and the Same Group Funds may be deemed to be under common control since both are advised by the Manager. Applicants also state that an Underlying Fund might be deemed to be an affiliated person of a Fund of Funds if the Fund of Funds acquires 5% or more of the Underlying Fund's outstanding voting securities. Accordingly, section 17(a) could prevent a Same Group Fund or an Other Group Fund from selling shares to, and redeeming shares from, a Fund of Funds. 4. Applicants seek an exemption under sections 6(c) and 17(b) to allow the proposed transactions. Applicants state that the transactions satisfy the standards for relief under sections 6(c) and 17(b). Specifically, applicants state that the terms of the transactions are fair and reasonable and do not involve overreaching. Applicants represent that the proposed transactions will be consistent with the policies of each Fund of Funds and Underlying Fund, and with the general purposes of the Act. In addition, applicants note that the consideration paid in sales and redemptions permitted under the requested order of shares of the Underlying Funds will be based on the net asset values of the Underlying Funds. Applicants' Conditions Applicants agree that the order granting the requested relief will be subject to the following conditions: 1. The members of the Group will not control (individually or in the aggregate) an Other Group Fund within the meaning of section 2(a)(9) of the Act. The members of the Subadviser Group will not control (individually or in the aggregate) an Other Group Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Other Group Fund, the Group or the Subadviser Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of an Other Group Fund, the Group and the Subadviser Group (except for any member of the Group or the Subadviser Group that is a Separate Account) will vote its shares of the Other Group Fund in the same proportion as the vote of all other holders of the Other Group Fund's shares. A Registered Separate Account will seek voting instructions from its contract holders and will vote its shares of an Other Group Fund in accordance with the instructions received and will vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received. An Unregistered Separate Account will either
(a)vote its shares of the Other Group Fund in the same proportion as the vote of all other holders of the Other Group Fund's shares; or
(b)seek voting instructions from its contract holders and vote its shares in accordance with the instructions received and vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received. This condition shall not apply to the Subadviser Group with respect to an Other Group Fund for which the Subadviser, or a person controlling, controlled by, or under common control with the Subadviser, acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act. 2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in an Other Group Fund to influence the terms of any services or transactions between the Fund of Funds or a Fund of Funds Affiliate and the Other Group Fund or an Other Group Fund Affiliate. 3. The Board of each Fund of Funds, including a majority of the Independent Trustees, will adopt procedures reasonably designed to assure that the Manager and any Subadviser to the Fund of Funds are conducting the investment program of the Fund of Funds, including the initial selection of Other Group Funds and any subsequent changes, without taking into account any consideration received by the Fund of Funds or a Fund of Funds Affiliate from an Other Group Fund or an Other Group Fund Affiliate in connection with any services or transactions including any revenue sharing or similar payments by an Other Group Fund Affiliate to a Fund of Funds Affiliate. 4. Once an investment by a Fund of Funds in the securities of an Other Group Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board of directors or trustees of the Other Group Fund, including a majority of the Independent Trustees, will determine that any consideration paid by the Other Group Fund to the Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions:
(a)Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Other Group Fund;
(b)is within the range of consideration that the Other Group Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and
(c)does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Other Group Fund and its investment adviser(s), or any person controlling, controlled by, or under common control with such investment adviser(s). 5. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Other Group Fund) will cause an Other Group Fund to purchase a security in an Affiliated Underwriting. 6. The board of directors or trustees of an Other Group Fund, including a majority of the Independent Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Other Group Fund in Affiliated Underwritings, once an investment by a Fund of Funds in shares of the Other Group Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by a Fund of Funds in shares of the Other Group Fund. The board should consider, among other things:
(a)Whether the purchases were consistent with the investment objectives and policies of the Other Group Fund;
(b)how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and
(c)whether the amount of securities purchased by the Other Group Fund in Affiliated Underwritings and the amount purchased directly from an Other Group Fund have changed significantly from prior years. The board shall take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders. 7. Each Other Group Fund shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of the Other Group Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the board's determinations were made. 8. Before investing in an Other Group Fund in excess of the limit in section 12(d)(1)(A)(i), each Fund of Funds and the Other Group Fund will execute an agreement stating, without limitation, that their boards of directors or trustees and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order (“Participation Agreement”). At the time of its investment in shares of an Other Group Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Other Group Fund of the investment. At such time, the Fund of Funds will also transmit to the Other Group Fund a list of the names of each Fund of Funds Affiliate and Underwritings Affiliate. The Fund of Funds will notify the Other Group Fund of any changes to the list of names as soon as reasonably practicable after a change occurs. The Other Group Fund and the Fund of Funds will maintain and preserve a copy of the order, the Participation Agreement and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place. 9. Before approving any advisory contract under section 15 of the Act, the Board of each Fund of Funds, including a majority of the Independent Trustees, will find that the advisory fees charged under such advisory contract(s) are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Underlying Fund in which the Fund of Funds may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Fund of Funds. 10. The Manager will waive fees otherwise payable to the Manager by the Fund of Funds, in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Other Group Fund under rule 12b-1 under the Act) received from an Other Group Fund by the Manager, or an affiliated person of the Manager, other than any advisory fees paid to the Manager or its affiliated person by the Other Group Fund, in connection with the investment by the Fund of Funds in the Other Group Fund. Any Subadviser will waive fees otherwise payable to the Subadviser, directly or indirectly, by the Fund of Funds in an amount at least equal to any compensation received from an Other Group Fund by the Subadviser, or an affiliated person of the Subadviser, other than any advisory fees paid to the Subadviser or its affiliated person by the Other Group Fund, in connection with the investment by the Fund of Funds in the Other Group Fund made at the direction of the Subadviser. In the event that the Subadviser waives fees, the benefit of the waiver will be passed through to the Fund of Funds. 11. With respect to Registered Separate Accounts that invest in a Fund of Funds, no sales load will be charged at the Fund of Funds level or at the Underlying Fund level. Other sales charges and services fees, as defined in Rule 2830, if any, will only be charged at the Fund of Funds level or at the Underlying Fund level, but not both. With respect to other investments in a Fund of Funds, any sales charges and/or service fees will not exceed the limits applicable to a fund of funds as set forth in Rule 2830. 12. No Underlying Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act except to the extent the Underlying Fund
(a)receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1) of the Act); or
(b)acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting the Underlying Fund to
(i)acquire securities of one or more affiliated investment companies for short-term cash management purposes; or
(ii)engage in interfund borrowing or lending transactions. For the Commission, by the Division of Investment Management, under delegated authority. Nancy M. Morris, Secretary. [FR Doc. E6-17619 Filed 10-20-06; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meeting Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold the following meeting during the week of October 23, 2006: A Closed Meeting will be held on Thursday, October 26, 2006 at 10 a.m. Commissioners, Counsels to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present. The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), (8), (9)(B) and
(10)and 17 CFR 200.402(a) (3), (5), (7), (8), (9)(ii), and
(10)permit consideration of the scheduled matters at the Closed Meeting. Commissioner Nazareth, as duty officer, voted to consider the items listed for the closed meeting in closed session. The subject matters of the Closed Meeting scheduled for Thursday, October 26, 2006 will be: Formal orders of investigation; Institution and settlement of injunctive actions; Institution and settlement of administrative proceedings of an enforcement nature; Other matters relating to enforcement proceeding; Collection matter; Regulatory matter regarding a financial institution; and Adjudicatory matters. At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at
(202)551-5400. Dated: October 19, 2006. J. Lynn Taylor, Assistant Secretary. [FR Doc. 06-8861 Filed 10-19-06; 3:59 pm]
Connectionstraces to 11
8 references not yet in our index
  • Pub. L. 92-463
  • 88 Stat. 1244
  • 10 CFR 73
  • 10 CFR 30
  • 10 CFR 40
  • 10 CFR 70
  • 17 CFR 270.35
  • Pub. L. 94-409
Citation graph
cites case law
Notices
Notice of availability of proposed records schedules; request for comments
U.S.C.§ 3303a
C.F.R.§ 73.59
C.F.R.§ 2.202
C.F.R.§ 2.390
C.F.R.§ 2.309
C.F.R.§ 73.4
C.F.R.§ 16.30
U.S.C.§ 3501
U.S.C.§ 80a–1
Pub. L.Pub. L. 92-463
Stat.88 Stat. 1244
Cite10 CFR 73
Cites 19 · showing 12Cited by 0 across 0 sources
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