Notices. Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (the “Act”)
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BILLING CODE 7710-FW-M SECURITIES AND EXCHANGE COMMISSION [Release No. IC-27652; 812-13351] FBR Fund Advisers, Inc., et al.; Notice of Application December 29, 2006. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (the “Act”). SUMMARY OF APPLICATION: Applicants have received a temporary order exempting them from section 9(a) of the Act, with respect to an injunction entered against Friedman, Billings, Ramsey & Co., Inc.
(“FBR & Co.”) on or about December 22, 2006 by the United States District Court for the District of Columbia, until the Commission takes final action on an application for a permanent order. Applicants also have applied for a permanent order. APPLICANTS: FBR Fund Advisers, Inc. (“FBR Advisers”), FBR Investment Services, Inc. (“FBRIS”), and FBR Investment Management, Inc. (“FBRIM”) (collectively, the “Applicants”). 1 1 Applicants request that any relief granted pursuant to the application also apply to any other company of which FBR & Co. is or becomes an affiliated person, other than any company of which Emanual J.
Friedman is or becomes an affiliated person (together with Applicants, “Covered Persons”). FILING DATE: The application was filed on December 22, 2006. Applicants have agreed to file a final amendment during the notice period, the substance of which is reflected in this notice. HEARING OR NOTIFICATION OF HEARING: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving 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 January 23, 2007, 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, c/o William Ginivan, General Counsel, Friedman, Billings, Ramsey Group, Inc., Potomac Tower, 1001 Nineteenth Street North, Arlington, VA 22209. FOR FURTHER INFORMATION CONTACT: Marilyn Mann, Senior Counsel, at
(202)551-6813, or Mary Kay Frech, Branch Chief, at
(202)551-6821 (Division of Investment Management, Office of Investment Company Regulation). SUPPLEMENTARY INFORMATION: The following is a temporary order and 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 (tel. 202-551-5850). Applicants' Representations 1. FBR Advisers, FBRIS, and FBRIM are wholly-owned subsidiaries of Friedman, Billings, Ramsey Group, Inc. (“FBR”). FBR, a Virginia corporation, is a diversified financial services holding company that engages in investment banking, institutional brokerage and asset management services, among other activities. FBR Advisers, an investment adviser registered under the Investment Advisers Act of 1940 (“Advisers Act”), serves as investment adviser to certain series of FBR Funds (the “Funds”), an open-end management investment company organized as a Delaware statutory trust and registered under the Act. FBRIS, a broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”), serves as principal underwriter and distributor of shares of the Funds. FBRIM, an investment adviser registered under the Advisers Act, serves as investment adviser to certain employees' securities companies (“ESCs”), as defined in section 2(a)(13) of the Act, which are investment vehicles formed for the benefit of employees of FBR and its affiliates. 2. On or about December 22, 2006, the United States District Court for the District of Columbia entered a final judgment against FBR & Co., a broker-dealer registered under the Exchange Act, in a matter brought by the Commission (the “Final Judgment”). 2 FBR & Co. is a wholly-owned subsidiary of FBR. The Commission alleged in the complaint (“Complaint”) that, in connection with a Private Investment in Public Equity offering of stock by CompuDyne Corporation, for which FBR & Co. served as placement agent, FBR & Co. failed to establish, maintain and enforce policies and procedures reasonably designed to prevent the misuse of material, nonpublic information, unlawfully traded while aware of material nonpublic information and conducted unregistered sales of securities. One of the individuals alleged to have been involved in the conduct underlying the Complaint is Emanuel J. Friedman, the former co-chairman and co-chief executive officer of FBR, former chairman and co-chief executive officer of FBR & Co., and former chairman and co-chief executive officer of FBRIM. Without admitting or denying any of the allegations in the Complaint, except as to jurisdiction, FBR & Co. consented to the entry of the Final Judgment. The Final Judgment permanently restrains and enjoins FBR & Co., and its agents, servants, employees, and attorneys, from violating sections 10(b) and 15(f) of the Exchange Act and rule 10b-5 thereunder and sections 5 and 17(a) of the Securities Act of 1933 (“Securities Act”) (the “Injunction”). 3 FBR & Co. also consented to the payment of disgorgement plus prejudgment interest in addition to civil penalties in an aggregate amount of approximately $3.7 million. 4 2 *Securities and Exchange Commission* v. *Friedman, Billings, Ramsey & Co., Inc., et al.* , Final Judgment as to Friedman, Billings, Ramsey & Co., Inc., 06-CV-02160
(RCL)(D.D.C., filed Dec. 22, 2006). 3 The Final Judgment also enjoins Mr. Friedman from violating section 5 of the Securities Act and, as a controlling person pursuant to section 20(a) of the Exchange Act, from violating sections 10(b) and 15(f) of the Exchange Act and rule 10b-5 thereunder. The Final Judgment also imposes civil penalties on Mr. Friedman. Mr. Friedman is an affiliated person of FBR under section 2(a)(3)(A) of the Act by virtue of his ownership of 6.09% of the outstanding voting securities of FBR. The requested temporary and permanent orders will not apply to Mr. Friedman or to any company of which Mr. Friedman is or becomes an affiliated person, which currently includes FBR. 4 FBR & Co. also has agreed to certain undertakings designed to ensure that it does not commit future violations with respect to the misuse of material nonpublic information. Applicants' Legal Analysis 1. Section 9(a)(2) of the Act, in relevant part, prohibits a person who has been enjoined from engaging in or continuing any conduct or practice in connection with the purchase or sale of a security from acting, among other things, as an investment adviser or depositor of any registered investment company or a principal underwriter for any registered open-end investment company, registered unit investment trust or registered face-amount certificate company. Section 9(a)(3) of the Act makes the prohibition in section 9(a)(2) applicable to a company, any affiliated person of which has been disqualified under the provisions of section 9(a)(2). “Affiliated person” is defined in section 2(a)(3) of the Act to include any person directly or indirectly controlling, controlled by, or under common control with, the other person. Applicants state that FBR & Co. is an affiliated person of each of the Applicants within the meaning of section 2(a)(3) of the Act because FBR controls FBR & Co., FBR Advisers, FBRIS and FBRIM. Applicants state that, as a result of the Injunction, they would be subject to the prohibitions of section 9(a). 2. Section 9(c) of the Act provides that the Commission shall grant an application for an exemption from the disqualification provisions of section 9(a) of the Act if it is established that these provisions, as applied to the applicants, are unduly or disproportionately severe or that the conduct of the applicants has been such as not to make it against the public interest or protection of investors to grant the exemption. Applicants have filed an application pursuant to section 9(c) seeking temporary and permanent orders exempting them from the disqualification provisions of section 9(a) of the Act. 3. Applicants believe they meet the standards for exemption specified in section 9(c). Applicants state that the prohibitions of section 9(a) as applied to them would be unduly and disproportionately severe and that the conduct of Applicants has been such as not to make it against the public interest or the protection of investors to grant the exemption from section 9(a). 4. Applicants state that although Mr. Friedman was co-chairman and co-chief executive officer of FBR, co-chairman and co-chief executive officer of FBRIM and also participated in the conduct described in the Injunction, Mr. Friedman is no longer employed by FBR, FBRIM or FBR & Co. Applicants also state that none of their officers, directors or employees who are engaged in the provision of investment advisory or underwriting services to the Funds or investment advisory services to the ESCs participated in any way in the conduct underlying the Injunction. Applicants further state that the conduct underlying the Injunction did not involve any Funds or ESCs. 5. Applicants state that the inability to continue providing advisory and underwriting services to the Funds would result in potentially severe hardships for the Funds and their shareholders. Applicants also state that they have distributed, or will distribute as soon as reasonably practicable, written materials, including an offer to meet in person to discuss the materials, to the boards of directors or trustees of the Funds (the “Boards”), including the directors who are not “interested persons,” as defined in section 2(a)(19) of the Act, of such Funds and their independent legal counsel, as defined in rule 0-1(a)(6) under the Act, if any, regarding the Injunction, any impact on the Funds, and the application. Applicants will provide the Boards with all information concerning the Injunction and the application that is necessary for the Funds to fulfill their disclosure and other obligations under the federal securities laws. 6. Applicants also assert that, if they were barred from providing services to the Funds, the effect on their businesses and employees would be severe. Applicants state that they have committed substantial resources to establish an expertise in underwriting and advising the Funds. The Applicants have never before received an exemptive order under section 9(c). 7. Applicants further state that prohibiting FBRIM from continuing to serve as investment adviser to the ESCs is not in the public interest or in furtherance of the protection of investors. Because the ESCs relate to employee retention and compensation matters and are sponsored for employees of FBR and its affiliates, it would not be consistent with the purposes of the employees' securities company provisions of the Act to require another entity not affiliated with FBR to serve as investment adviser to the ESCs. In addition, the participating employees have agreed to participate in the ESCs with the expectation that the ESCs will be managed by their employer. Applicants' Condition Applicants agree that any order granting the requested relief shall be subject to the following condition: Any temporary exemption granted pursuant to the application shall be without prejudice to, and shall not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption from section 9(a) of the Act requested pursuant to the application or the revocation or removal of any temporary exemption granted under the Act in connection with the application. Temporary Order The Commission has considered the matter and finds that Applicants have made the necessary showing to justify granting a temporary exemption. Accordingly, *it is hereby ordered* , pursuant to section 9(c) of the Act, that the Covered Persons are granted a temporary exemption from the provisions of section 9(a), effective as of the date of the Injunction, solely with respect to the Injunction, subject to the condition in the application, until the date the Commission takes final action on an application for a permanent order. By the Commission. Jill M. Peterson, Assistant Secretary. [FR Doc. E7-60 Filed 1-8-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Rel. No. IC-27651; File No. 812-13282] Sun Life Assurance Company of Canada (U.S.), et al., Notice of Application December 29, 2006. AGENCY: Securities and Exchange Commission (the “Commission”). ACTION: Notice of application for an order of approval pursuant to Section 26(c) of the Investment Company Act of 1940, as amended (the “Act”), and an order of exemption pursuant to Section 17(b) of the Act from Section 17(a) of the Act. APPLICANTS: Sun Life Assurance Company of Canada (U.S.) (“Sun Life U.S.”), Sun Life Insurance and Annuity Company of New York (“Sun Life N.Y.”) (together with Sun Life U.S., the “Companies”), Keyport Variable Account A (“Keyport Account A”), Sun Life of Canada (U.S.) Variable Account F (“Account F”), Sun Life of Canada (U.S.) Variable Account I (“Account I”), KBL Variable Annuity Account (“KBL Annuity Account”), KBL Variable Account A (“KBL Account A”), and Sun Life (N.Y.) Variable Account C (“Account C”) (collectively, the “Applicants”). Applicants, together with Sun Capital Advisers Trust (``Sun Capital Trust'') are ``Section 17(b) Applicants.'' SUMMARY OF APPLICATION: Applicants seek an order approving the proposed substitutions (the “Substitutions”) of Class O shares of Alger American Growth Portfolio of the Alger American Fund and Class A and Class B shares of the AllianceBernstein VPS Large Cap Growth Portfolio of the AllianceBernstein Variable Product Series Fund (collectively, the “Old Portfolios”) with Initial and Service Class Shares of the SC FI Large Cap Growth Fund of Sun Capital Trust (the “New Portfolio”) under certain variable life insurance policies and variable annuity contracts (“Contracts”). Section 17(b) Applicants also seek an order pursuant to Section 17(b) of the Act to permit certain in-kind transactions in connection with the Substitutions. Filing Date: The application was originally filed on April 19, 2006, and an amended and restated application was filed on December 20, 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 Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests must be received by the Commission by 5:30 p.m. on January 24, 2007, 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 requester'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 Secretary of the Commission. ADDRESSES: The Commission: Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants: c/o Maura A. Murphy, Esq., Sun Life Assurance Company of Canada (U.S.), One Sun Life Executive Park, Wellesley Hills, Massachusetts 02481. FOR FURTHER INFORMATION CONTACT: Rebecca A. Marquigny, Senior Counsel, or Joyce M. Pickholz, Branch Chief, Office of Insurance Products, Division of Investment Management, at
(202)551-6795. SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application is available for a fee from the Public Reference Branch of the Commission, 100 F Street, NE., Washington, DC 20549 (202-551-8090). Applicants' and Section 17 Applicants' Representations 1. Sun Life U.S. is a stock life insurance company ultimately controlled by Sun Life Financial Inc. (“Sun Life Financial”), a Canadian reporting company under the Securities Exchange Act of 1934 (the “1934 Act”). Pursuant to a 2003 merger, Keyport Life Insurance Company (“Keyport”) was merged with and into Sun Life U.S. with Sun Life U.S. as the survivor. Sun Life U.S. is the depositor and sponsor of Keyport Account A, Account F, and Account I. 2. Keyport Account A is registered with the Commission under the Act as a unit investment trust (File No. 811-07543) with interests are offered through Contracts (the “Keyport Contracts”) registered under the Securities Act of 1933 (“1933 Act”) on Form N-4 (File Nos. 333-114126, 333-114129, 333-114132, 333-111642, 333-111645, 333-111646, 333-111647, and 333-111648). Account F is registered as a unit investment trust (File No. 811-05846); its interests are also offered through Contracts (the “Account F Contracts”) registered under the 1933 Act on Form N-4 (File Nos. 33-29852, 33-41628, 333-37907, 333-05227, 333-82957, 333-30844, 333-31248, 333-41438, 333-74844, 333-83256, 333-83362, 333-83364, 333-83516, 333-74972, 333-115525, and 333-115536). Account I, registered as a unit investment trust (File No. 811-09137) also offers its interests through Contracts (the “Account I Contracts”) registered under the 1933 Act on Form N-6 (File Nos. 333-68601, 333-59662, 333-94359, 333-100831, and 333-100829). 3. Sun Life N.Y., a wholly owned subsidiary of Sun Life U.S., is a stock life insurance company which merged with Keyport Benefit Life Insurance Company (“KBL”), a subsidiary of Keyport, in 2002. Sun Life N.Y. is the depositor and sponsor of the KBL Annuity Account, KBL Account A, and Account C. 4. KBL Annuity Account is a registered unit investment trust (File No. 811-05422) for which interests are offered through a Contract (the “KBL Annuity Contract”) registered under the 1933 Act on Form N-4 (File No. 333-102275). KBL Account A is a registered unit investment trust (File No. 811-08635) with interests are offered through other Contracts (the “KBL Account A Contracts”) registered under the 1933 Act on Form N-4 (File Nos. 333-102274, 333-102278, 333-102279, and 333-102280). Account C, a registered unit investment trust (File No. 811-04440), also offers its interests through certain Contracts (the “Account C Contracts”) registered under the 1933 Act on Form N-4 (File Nos. 33-41629, 333-05037, 333-67864, 333-100475, 333-100474, 333-99907, and 333-107983). 5. All of the Contracts involved in the Substitutions
(a)reserve the right to substitute shares of one portfolio for shares of another;
(b)permit transfers of contract value among the subaccounts pursuant to the limitations of the particular Contract,
(c)impose or reserve the right to impose a transfer charge; and
(d)are subject to market timing policies and procedures that may operate to limit transfers. 6. Applicants represent that:
(a)The Keyport Contracts involved in the Substitutions are no longer offered for sale, except to certain employee plans;
(b)none of the Account I, KBL Account A, or KBL Annuity Contracts involved in the Substitutions are still offered for sale; and (c), the subaccounts investing in the Old Portfolios are no longer offered as investment options to new Contract owners under the Account F Contracts and Account C Contracts. 7. Alger American Growth Portfolio (“Alger Growth” or “Old Portfolio”) is a portfolio of Alger American Fund, a registered, diversified, open-end management investment company (File No. 811-05550). Class O and Class S of its shares are registered under the 1933 Act on Form N-1A (File No. 33-21722). The shares are the same except Class S shares are subject to a distribution and shareholder servicing fee while Class O shares are not. The portfolio's investment adviser is Fred Alger Management, Inc. (“FAM”). 8. AllianceBernstein VPS Large Cap Growth Portfolio (“AB Large Cap Growth”) is a portfolio of the AllianceBernstein Variable Product Series Fund, a registered diversified, open-end management investment company (File No. 811-05398). Class A and B shares of AB Large Cap Growth (also referred to as “Old Portfolio”) are registered under the 1933 Act on Form N-1A (File No. 33-18647). The shares are the same except Class B shares are subject to a distribution fee and Class A shares are not. AllianceBernstein L.P. (“AB L.P.”) is the portfolio's investment adviser. 9. SC FI Large Cap Growth Fund (“SC Large Cap Growth” or “New Portfolio”) is a portfolio of Sun Capital Trust, a registered, diversified, open-end management investment company (File No. 811-08879). Initial and Service Class shares of New Portfolio are registered under the 1933 Act on Form N-1A (File No. 333-59093); the shares are the same except that Service Class shares are subject to a distribution fee and Initial Class shares are not. 10. Sun Capital Advisers LLC (“Sun Capital”), an indirect, wholly owned subsidiary of Sun Life Financial, is investment adviser to all the Sun Capital Trust portfolios. Through an order from the Commission pursuant to Section 6(c) of the Act, Sun Capital is exempt from Section 15(a) of the Act and Rule 18f-2 thereunder with respect to subadvisory agreements (the “Manager of Managers Order”). 1 1 Sun Capital Advisers Trust and Sun Capital Advisers, Inc., 1940 Act Rel. No. 24401 (April 24, 2000) (Order), File No. 812-11790; see also Sun Capital Advisers Trust and Sun Capital Advisers, Inc., 1940 Act Rel. No. 23793 (Apr. 20, 1999) (Order), File No. 812-11464. 11. Applicants represent that the relief granted in the Manager of Managers Order extends to New Portfolio permitting it to enter into and materially amend investment subadvisory agreements without obtaining shareholder approval. Applicants also indicate that the prospectus for the New Portfolio discloses and explains the existence, substance and effect of the Manager of Managers Order. 12. Applicants propose to substitute
(a)Initial Class shares of New Portfolio for Class O shares of Alger Growth;
(b)Initial Class shares of New Portfolio for Class A shares of AB Large Cap Growth; and
(c)Service Class shares of New Portfolio for Class B shares of AB Large Cap Growth. Applicants state that the proposed Substitutions are part of an overall business goal of the Companies to make the Contracts more attractive to Contract owners by providing a diverse array of investment options that are not redundant or duplicative in terms of the investment types and styles of mutual funds underlying such options. Applicants assert their belief that:
(a)Reducing the number of nonproprietary funds will provide the Companies with more control over fund changes that affect their Contracts, allowing for appropriate long-term strategic planning;
(b)The New Portfolio better promotes their goals of increasing administrative efficiency of, and control over, their Contracts because the New Portfolio is part of their affiliated fund family;
(c)Streamlining the number of nonproprietary funds available through the Contracts and altering the available portfolios will simplify the administration of the Contracts, particularly with regard to communications with the fund families and the preparation of various reports and disclosure documents; and
(d)This streamlining will allow the Companies to enhance their communication efforts to Contract owners and sales representatives regarding the available portfolios, and may provide for more enhanced and timely reporting to the Companies from fund families and therefore from the Companies to Contract owners. 13. Regarding Contracts that offer both of the Old Portfolios as investment options, Applicants assert that a more concentrated and streamlined array of investment options could result in increased operational and administrative efficiencies and economies of scale for the Companies. Applicants note that Contract owners could benefit from streamlining Contract investment options. Specifically, Applicants state that Contracts that offer too many similar investment options may be unnecessarily confusing to Contract owners and may increase the Companies' costs of administering the Contracts. 14. Applicants represent that because the New Portfolio operates pursuant to the Manager of Managers Order, the Substitutions would provide protection to Contract owners by giving Sun Capital the agility and flexibility to change the subadviser of the New Portfolio should such a change become warranted or advisable. In support of the Substitutions, Applicants further represent that the Substitutions will provide Contract owners with substantially similar investment vehicles. Specifically, Applicants assert that the investment objectives, principal investment strategies and principal investment risks of the New Portfolio are substantially similar to those of the Old Portfolios. The following summarizes the more complete comparison of New and Old Portfolios provided in the Application. 15. *Alger Growth Substitution* . Applicants describe the investment objective of Alger Growth as “to seek long-term capital appreciation” and the investment objective of New Portfolio as “to seek long-term growth of capital.” Applicants state that the principal investment strategies of the two portfolios are substantially similar noting that both invest primarily in common stocks with an emphasis on “growth” stocks and the stocks of highly capitalized companies. Alger Growth invests at least 65% of its total assets in equity securities of companies that, at the time of purchase, have total market capitalization of $1 billion or greater. SC Large Cap Growth invests at least 80% of its assets in the common stocks of companies with large market capitalizations. Both portfolios may invest up to 20% of the value of their total assets in foreign securities (not including American Depositary Receipts, American Depositary Shares, or U.S. dollar denominated securities of foreign issuers). Applicants represent that both Alger Growth and New Portfolio have substantially similar risk characteristics and share substantially similar risk profiles. Charges for Class O of Alger Growth include Management Fees of 0.75%, Other Expenses of 0.06%, and no 12b-1 Fee. 2 Charges for the Initial Class shares of New Portfolio include: Management Fees of 0.75% and Other Expenses of 0.30%; it does not charge a 12b-1 Fee. Alger Growth's total gross and net operating expenses are both 0.81%. Respectively, New Portfolio's total gross and net operating expenses are 1.05% and 0.81% (reflecting a 0.24% contractual fee reduction arrangement). 2 For the descriptions of charges involved in the Substitution, all percentages for the Management Fees, 12b-1 Fees, Other Expenses, Fee Reductions, Total Gross and Net Annual Operating Expenses, and Separate Account Fees represent a percentage of average annual assets. 16. *AB Large Cap Growth Substitutions* . Applicants represent that the investment objectives of AB Large Cap Growth and New Portfolio are identical; both portfolios see long-term growth of capital. Applicants state that the principal investment strategies of the two portfolios are substantially similar noting that New Portfolio invests at least 80% of its net assets in common stocks of large-capitalization companies based on the market capitalization of companies in the Russell 1000 Index or the S&P 500. Old Portfolio invests an identical 80% of its assets in common stock of companies with large market capitalizations based on the market capitalization range of companies appearing in the Russell 1000 Growth Index. Applicants represent that both AB Large Cap Growth and New Portfolio have substantially similar risk characteristics as both invest in substantially similar securities. For the proposed substitution involving Class A of AB Large Cap Growth, charges for Class A of Old Portfolio include Management Fees of 0.75% and Other Expenses of 0.06%. Charges for the Initial Class of New Portfolio include Management Fees of 0.75% and Other Expenses of 0.30%. Neither imposes a 12b-1 Fee. The Old Portfolio's total gross and net operating expenses for Class A shares are both 0.81%. Respectively, New Portfolio's total gross and net operating expenses for Initial Class shares are 1.05% and 0.81% (reflecting a 0.24% contractual fee reduction arrangement). For the proposed substitution involving Class B of AB Large Cap Growth, charges for Class B of Old Portfolio include Management Fees of 0.75%, 12b-1 Fees of 0.25%, and Other Expenses of 0.06%. Charges for the Service Class of New Portfolio include Management Fees of 0.75%, 12b-1 Fees of 0.25%, and Other Expenses of 0.30%. The Old Portfolio's total gross and net operating expenses for Class B shares are both 1.06%. Respectively, New Portfolio's total gross and net operating expenses for Service Class shares are 1.30% and 1.06% (reflecting a 0.24% contractual fee reduction arrangement). 17. Applicants assert that as of the effective date of the Substitutions (“Effective Date”), each Separate Account will redeem shares of the applicable Old Portfolio in-kind. Applicants state that if Sun Capital declines to accept particular portfolio securities of either of the Old Portfolios for purchase in-kind of shares of the New Portfolio, the applicable Old Portfolio will liquidate portfolio securities as necessary and shares of the New Portfolio will be purchased with cash. Applicants represent that in either event, the proceeds of such redemptions will then be used to purchase shares of the corresponding class of the New Portfolio, with each subaccount of the applicable Separate Account investing the proceeds of its redemption from the Old Portfolios in the applicable class of the New Portfolio. 18. Applicants further state that redemption requests and purchase orders will be placed simultaneously so that contract values will remain fully invested at all times. Applicants represent that all redemptions of shares of the Old Portfolios and purchases of shares of the New Portfolios will be effected in accordance with Section 22(c) of the Act and Rule 22c-1 thereunder. Applicants state that the Substitutions will take place at relative net asset value as of the Effective Date with no change in the amount of any Contract owner's contract value or death benefit or in the dollar value of his or her investments in any of the subaccounts. Applicants represent that Contract owners will receive Service Class shares of the New Portfolio in the Substitutions only if they are currently invested in Class B shares of the AB Large Cap Growth, which also imposes a distribution fee. 19. Applicants further represent that all expenses incurred in connection with the Substitutions, including legal, accounting, transactional, and other fees and expenses, including brokerage commissions, will be paid by Sun Life U.S. or Sun Life N.Y. Applicants also state that, as a result of the Substitutions, Contract owners will not incur any additional fees or charges, nor will their rights or insurance benefits or the Companies' obligations under the Contracts be altered. Applicants assert that the Substitutions:
(a)Will not impose any tax liability on Contract owners; and
(b)will not cause the Contract fees and charges currently being paid by existing Contract owners to be greater after the Substitutions than before the Substitutions. Applicants represent that neither Sun Life U.S. nor Sun Life N.Y. will exercise any right either may have under the Contracts to impose restrictions on transfers under the Contracts for a period of at least thirty days following the Substitutions. 20. Applicants represent that during the twenty-four months following the date of the Substitutions, the total net operating expenses of the applicable class of the New Portfolio (taking into account any expense waiver or reimbursement) will not exceed the net expense level of the corresponding class of the Old Portfolio for the fiscal year ended December 31, 2005. Applicants also state that through the twenty-four months following the date of the Substitutions, Sun Capital has contractually agreed to waive its management fee and, if necessary, to limit other ordinary operating expenses so that total operating expenses, as a percentage of average net assets, do not exceed 0.81% or 1.06%, as applicable. In addition, Applicants represent that for twenty-four months following the date of the Substitutions, the Companies will not increase asset-based fees or charges for Contracts outstanding on the date of the Substitutions. 21. Applicants represent that a prospectus for the New Portfolio containing disclosure about the Manager of Managers Order will be provided to each Contract owner prior to or at the time of the Substitutions. Notwithstanding the Manager of Managers Order, after the Effective Date of the Substitutions, the Applicants agree not to change the New Portfolio's subadviser, add a new subadviser, or otherwise rely on the Manager of Managers Order without first obtaining shareholder approval of either:
(1)The subadviser change; or
(2)the New Portfolio's continued ability to rely on the Manager of Managers Order. 22. Applicants state that Contract owners were notified of the initial application by means of a prospectus supplement for each of the Contracts stating that the Applicants filed the initial application and seek approval for the Substitutions (“Pre-Substitution Notice”). The Pre-Substitution Notice set forth the anticipated Effective Date and advised Contract owners that contract values attributable to investments in the Old Portfolios will be transferred to the New Portfolios, without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge, on the Effective Date. Applicants indicate that the Pre-Substitution Notice stated that, from the date the initial application was filed with the Commission through the date thirty days after the Substitutions, Contract owners may make one transfer of contract value from the subaccounts investing in the Old Portfolios (before the Substitutions) or the New Portfolio (after the Substitutions) to one or more other subaccount(s) without charge (including sales charges or surrender charges) and without that transfer counting against their contractual transfer limitations. 23. Applicants represent that all Contract owners will have received a copy of the most recent New Portfolio prospectus prior to the Substitutions. Applicants also agree that, within five days following the Substitutions, Contract owners affected by the Substitutions will be notified in writing that the Substitutions were carried out and that this notice will restate the information set forth in the Pre-Substitution Notice. Applicants' Legal Analysis 1. Section 26(c) of the Act makes it unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the Commission approves the substitution. The Commission may approve such a substitution if the evidence establishes that it is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. 2. Applicants submit that the Substitutions meet the standards set forth in Section 26(c) and assert that replacement of the Old Portfolios with the New Portfolio is consistent with the protection of Contract owners and the purposes fairly intended by the policy and provisions of the Act. Applicants have reserved the right to make such a substitution under the Contracts and represent that this reserved right is disclosed in the prospectus for the Contracts. 3. Section 17(a)(1) of the Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the Act generally prohibits the persons described above, acting as principal, from knowingly purchasing any security or other property from the registered company. Pursuant to Section 10(a)(1) of the Act, the Section 17(b) Applicants may be considered affiliates of one or more of the portfolios involved in the Substitutions. Because the Substitutions may be effected, in whole or in part, by means of in-kind redemptions and subsequent purchases of shares and by means of in-kind transactions, the Substitutions may be deemed to involve one or more purchases or sales of securities or property between affiliates. 4. Section 17(b) of the Act provides that the Commission may, upon application, grant an order exempting any transaction from the prohibitions of Section 17(a) if the evidence establishes that: The terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned; the proposed transaction is consistent with the policy of each registered investment company concerned, as recited in its registration statement and records filed under the Act; and the proposed transaction is consistent with the general purposes of the Act. 5. The Section 17(b) Applicants state that the terms under which the in-kind redemptions and purchases will be effected are reasonable and fair and do not involve overreaching on the part of any person principally because the Substitutions will conform with all but two of the conditions enumerated in Rule 17a-7. Applicants assert that the use of in-kind transactions will not cause Contract owner interests to be diluted. In support, Applicants represent that:
(a)The proposed transactions will take place at relative net asset value as of the Effective Date in conformity with the requirements of Section 22(c) of the 1940 Act and Rule 22c-1 thereunder with no change in the amount of any Contract owner's contract value or death benefit or in the dollar value of his or her investment in any of the Separate Accounts;
(b)Contract owners will not suffer any adverse tax consequences as a result of the Substitutions; and
(c)Fees and charges under the Contracts will not increase because of the Substitutions. 6. Further, though the Section 17(b) Applicants may not rely on Rule 17a-7 because they cannot meet all of its conditions, the Section 17(b) Applicants agree to carry out the proposed in-kind purchases in conformity with all of the conditions of Rule 17a-7 and the procedures adopted thereunder, except that:
(1)The consideration paid for the securities being purchased or sold may not be entirely cash; and
(2)the Sun Capital Trust board will not separately review each portfolio security purchased by the New Portfolio. However, Applicants assert that the circumstances surrounding the Substitutions will offer the same degree of protection to the New Portfolio from overreaching that Rule 17a-7 provides to it generally in connection with its purchase and sale of securities under that Rule in the ordinary course of its business. 7. Applicants assert that the Board of Sun Capital Trust has adopted procedures, as required by Rule 17a-7, and that Sun Capital or any subadviser to the New Portfolio will review the securities holdings of the Old Portfolio to determine whether their portfolio holdings would be suitable investments for the New Portfolio in the overall context of its investment objectives and policies and consistent with its management. Applicants also note that the Companies (or any of their affiliates) cannot effect the proposed Substitutions at a price disadvantageous to the New Portfolio. Although the Substitutions may not be entirely for cash, Applicants represent that each will be effected based upon
(1)the independent market price of the portfolio securities valued as specified in paragraph
(b)of Rule 17a-7, and
(2)the net asset value per share of each portfolio involved valued according to the procedures disclosed in its registration statement and as required by Rule 22c-1 under the Act. The Section 17(b) Applicants state that securities to be paid out as redemption proceeds and subsequently contributed to the New Portfolio to effect the in-kind purchases of shares will be valued based on the normal valuation procedures of the redeeming and purchasing Portfolios, and redeeming and purchasing values will be the same. Applicants note that if Sun Capital declines to accept particular portfolio securities of either of the Old Portfolios for purchase in-kind of shares of the New Portfolio, the applicable Old Portfolio will liquidate portfolio securities as necessary and purchase New Portfolio shares with cash. Consistent with Rule 17a-7(d), Applicants also agree that no brokerage commissions, fees, or other remuneration will be paid in connection with the in-kind transactions. Conclusions 1. Applicants submit that for the reasons and upon the facts set forth in their application, the requested order meets the standards set forth in Section 26(c) and should, therefore, be granted. 2. Section 17 Applicants represent that the proposed in-kind transactions meet all of the requirements of Section 17(b) of the Act and that an exemption should be granted, to the extent necessary, from the provisions of Section 17(a). For the Commission, by the Division of Investment Management, pursuant to delegated authority. Nancy M. Morris, Secretary. [FR Doc. E7-61 Filed 1-8-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-55018; File No. SR-Amex-2006-109] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing and Order Granting Accelerated Approval of a Proposed Rule Change and Amendment No. 1 Thereto Relating to Listing Standards for Series of Portfolio Depositary Receipts and Index Fund Shares December 28, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on November 21, 2006, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. Amex filed Amendment No. 1 with the Commission on December 20, 2006. This order provides notice of the proposed rule change as modified by Amendment No. 1 and approves the proposed rule change on an accelerated basis. 1 15 U.S.C. 78s(b)(l). 2 17 CFR 240. 19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to make clarifying changes to Amex Rules 1000, 1002, 1000A and 1002A and minor, typographical changes to Amex Rules 1000, 1002 and 1002A, relating to listing standards for series of portfolio depositary receipts and index fund shares (collectively, “exchange-traded funds” or “ETFs”). The text of the proposed rule change is available at Amex, at *http://www.amex.com* , and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Amex included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to clarify the listing standards in Amex Rules 1000, 1002, 1000A and 1002A governing ETFs, amendments to which were approved by the Commission on November 9, 2006. 3 In particular, the Commission approved changes to Rules 1000 and 1000A to include generic listing standards for series of ETFs that are based on international or global indexes. Additionally, the Commission approved revisions to Amex Rules 1000 and 1000A to include generic listing standards for ETFs that are based on indexes or portfolios previously approved by the Commission as an underlying benchmark for the trading of ETFs, options or other specified index-based securities. These changes enable the Exchange to list exchange-traded funds pursuant to Rule 19b-4(e) of the Act 4 if each of the conditions set forth in Commentary .03 to Rule 1000 or Commentary .02 to Rule 1000A is satisfied. 3 *See* Securities Exchange Act Release No. 54739 (November 9, 2006), 71 FR 66993 (November 17, 2006) (SR-Amex-2006-78). 4 17 CFR 240.19b-4(e). Rule 19b-4(e) provides that the listing and trading of a new derivative securities product by a self-regulatory organization shall not be deemed a proposed rule change under Rule 19b-4(c)(1) of the Act 5 if the Commission has approved, pursuant to Section 19(b) of the Act, the self-regulatory organization's trading rules, procedures and listing standards for the product class that would include the new derivatives securities product and the self-regulatory organization has a surveillance program for the product class. 6 5 17 CFR 240.19b-4(c)(1). 6 When relying on Rule 19b-4(e), the SRO must submit Form 19b-4(e) to the Commission within five business days after the exchange begins trading the new derivative securities products. *See* Exchange Act Release No. 40761 (December 8, 1998), 63 FR 70952 (December 22, 1998). The Commission also approved other minor clarifying changes to Amex Rules 1000, 1002, 1000A and 1002A. In connection with those approved changes, the Exchange now proposes to make additional clarifying changes to Rules 1000, 1002, 1000A and 1002A. Specifically, the Exchange proposes to amend the definition of “US Component Stock” in Rules 1000(b)(3) and 1000A(b)(3). The definition of U.S. Component Stock was designed to include any equity security that is registered under Sections 12(b) or 12(g) of the Act, and therefore to comprise all securities that are subject to Commission oversight through registration. This definition was intended to include American Depositary Receipts (“ADRs”), the underlying security of which is registered under Section 12(b) or 12(g) of the Act. In the case of listed ADRs, it is the equity security underlying an ADR that is registered pursuant to Section 12 of the Act, not the ADRs. 7 Under Amex's generic listing standards, 8 the ADR would also be required to be listed on a national securities exchange and be an NMS Stock as defined in Rule 600 of Regulation NMS. 9 Consequently, the Exchange proposes to revise the definition of U.S. Component Stock to clarify that, while the ADR would be considered the U.S. Component Stock and therefore the index component for purposes of satisfying the eligibility criteria, the ADR can only qualify as a “US Component Stock” if the equity security underlying that ADR is registered under Section 12(b) or Section 12(d) of the Act. 7 *See* 17 CFR 240.12a-8. 8 *See* Amex Rule 1000, Commentary .03(a)(A)(5), (a)(B)(5) and (a)(C), and Amex Rule 1000A, Commentary .02(a)(A)(5), (a)(B)(5) and (a)(C). 9 17 CFR 242.600. The Exchange also proposes to modify Rule 1002(a)(ii) and Rule 1002A(a)(ii) to specify that the ETF issuer must provide the Exchange with a representation that the net asset value per share will be calculated daily and made available to all market participants at the same time. Finally, the Exchange is proposing to make a number of minor, typographical changes to Rules 1000, 1002 and 1002A. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6 of the Act, 10 in general, and furthers the objectives of Section 6(b)(5), 11 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. 10 15 U.S.C. 78f(b). 11 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange did not receive any written comments on the proposed rule change. III. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form at *http://www.sec.gov/rules/sro.shtml* or send an e-mail to *rule-comments@sec.gov* . Please include File No. SR-Amex-2006-109 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-Amex-2006-109. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site at *http://www.sec.gov/rules/sro.shtml* . Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Amex-2006-109 and should be submitted on or before January 30, 2007. IV. Discussion and Commission's Findings The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 12 In particular, the Commission believes that the proposal is consistent with Section 6(b)(5) of the Act, 13 which requires that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general protect investors and the public interest. 12 In approving this proposal, the Commission has considered its impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78f(b). 13 15 U.S.C. 78f(b)(5). The Commission believes that the proposal clarifies the Exchange's listing criteria applicable to ETFs. The definition of “US Component Stock” in Amex Rules 1000(b)(3) and 1000A(b)(3)1000 and 1000A will be amended to make clear that it is the equity security underlying an ADR that must be registered pursuant to Section 12 of the Act, not the ADR itself. The Commission believes that this change is consistent with the intent that the Exchange's definition of “US Component Stock” includes only securities that publicly disclose information under the federal securities laws. 14 In addition, the Commission believes the Exchange's revisions to its Rules 1002(a)(ii) and 1002A(a)(ii) specifying that the ETF issuer must provide a representation that the net asset value per share will be calculated daily and disseminated to market participants at the same time is consistent with the Act. The Commission further believes that the additional proposed revisions to Amex Rules 1000, 1002 and 1002A are minor, and should serve to clarify the Exchange's listing standards. 14 The Commission notes that, pursuant to the Amex's listing rules, an ADR must also be listed on a national securities exchange and must be an NMS stock under Rule 600 of Regulation NMS. 17 CFR 242.600. Accelerated Approval The Commission finds good cause, consistent with Section 19(b)(2) of the Act, 15 for approving this proposed rule change, as amended, before the thirtieth day after the publication of notice thereof in the **Federal Register** . The Commission notes that accelerating approval will enable the proposed rule clarifications to be implemented immediately to the benefit of market participants. 15 15 U.S.C. 78s(b)(2). V. Conclusion *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 16 that the proposed rule change, as amended (SR-Amex-2006-109), is hereby approved on an accelerated basis. 16 15 U.S.C. 78s(b)(2). 17 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 17 Jill M. Peterson, Assistant Secretary. [FR Doc. E7-62 Filed 1-8-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-55032; File No. SR-NYSEArca-2006-36] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Trade the streetTRACKS® Dow Jones STOXX 50 Fund and the streetTRACKS® Dow Jones EURO STOXX 50 Fund Pursuant to Unlisted Trading Privileges December 29, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on October 18, 2006, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. The Commission is publishing this notice and order to solicit comments on the proposal from interested persons and to approve the proposal on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange, through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”) proposes to trade shares (“Shares”) of the following index funds (“Funds”) pursuant to unlisted trading privileges (“UTP”) based on NYSE Arca Equities Rule 5.2(j)(3): • streetTRACKS Dow Jones STOXX 50 Fund (Symbol: FEU); and • streetTRACKS Dow Jones EURO STOXX 50 Fund
(FEZ)The text of the proposed rule change is available on the Exchange's Web site ( *http://www.nysearca.com* ), at the principal office of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange is proposing to trade the Shares pursuant to UTP. Each Fund represents the performance of the 50 largest companies, across all components of the 18 Dow Jones STOXX 600 and Dow Jones EURO STOXX 600 market sector indexes (each, an “Index”). Each Index is a subset of the pan-European Dow Jones STOXX Total Market Index and contains the 600 largest stocks traded on the major exchanges in Europe or the Eurozone ( *i.e.* , the countries of the European Monetary Union). Each Fund's components have a high degree of liquidity and represent the largest companies across all 18 market sectors defined by the Dow Jones Global Classification Standard. Each Fund seeks to replicate as closely as possible, before expenses, the price and yield of the underlying Index and uses a passive or indexing approach in seeking to achieve its investment objectives. The Commission previously approved the original listing and trading of the Shares of the Funds on the New York Stock Exchange (“NYSE”). 3 The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. The trading hours for the Shares on the Exchange are the same as those set forth in NYSE Arca Equities Rule 7.34, except that the Shares will not trade during the Opening Session (4 a.m. to 9:30 a.m. Eastern Time) unless the Indicative Optimized Portfolio Value (“IOPV”) is calculated and disseminated during that time. 3 *See* Securities Exchange Act Release No. 46686 (October 18, 2002), 67 FR 65388 (October 24, 2002) (SR-NYSE-2002-51). The Funds were originally listed on NYSE as the Fresco Dow Jones STOXX 50 Fund and the Fresco Dow Jones Euro STOXX 50 Fund, respectively. As of July 1, 2004, SsgA Management, Inc. replaced UBS Global Asset Management (U.S.) Inc. as investment advisor for the Funds. At that time, the name of the Funds was changed from Fresco to streetTRACKS®. Quotations for and last sale information regarding the Shares for each Fund are disseminated through the Consolidated Quotation System. The value of each underlying Index is updated intra-day on a real-time basis as individual component securities of the underlying Index change in price. The intra-day values of the underlying Indexes are disseminated every 15 seconds throughout the NYSE trading day. In addition, a value for each underlying Index is disseminated once each trading day, based on closing prices of the Index components in the relevant foreign market. The net asset value (“NAV”) of each Fund is calculated by the Fund's custodian and disseminated each business day, normally at the close of regular trading on NYSE. To provide updated information relating to the Shares for use by investors, professionals, and persons wishing to create or redeem them, NYSE disseminates the IOPV for each Fund as calculated by a securities information provider. The IOPV is disseminated on a per-share basis every 15 seconds during regular NYSE trading hours of 9:30 a.m. to 4:15 p.m. Eastern Time. Each Fund includes companies trading in markets with trading hours overlapping regular NYSE trading hours. During the overlap period, an IOPV calculator updates an IOPV every 15 seconds to reflect price changes in the principal foreign markets, and converts such prices into U.S. dollars based on the currency exchange rates. When the foreign market or markets are closed but the NYSE is open for trading, the IOPV is updated every 15 seconds to reflect changes in currency exchange rates. The IOPV may not reflect the value of all securities included in the applicable underlying Index. In addition, the IOPV does not necessarily reflect the precise composition of the current portfolio of securities held by each Fund at a particular point in time. Therefore, the IOPV on a per-share basis disseminated during NYSE's regular trading hours should not be viewed as a real-time update of the NAV of a particular Fund, which is calculated only once a day. The IOPV is intended to closely approximate the value per-share of the portfolio of securities for a Fund and provide for a close proxy of the NAV at a greater frequency for investors. The Commission has granted each Fund an exemption from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940 (“1940 Act”). 4 Any product description used in reliance on the Section 24(d) exemptive order will comply with all representations made and all conditions contained in the application for orders under the 1940 Act. 5 4 15 U.S.C. 87a-24(d). 5 *See* Investment Company Act Release No. 25738 (October 11, 2002). In connection with the trading of the Shares, the Exchange would inform ETP Holders in an Information Circular of the special characteristics and risks associated with trading the Shares, including how they are created and redeemed, the prospectus or product description delivery requirements applicable to the Shares, applicable Exchange rules, how information about the value of each underlying Index is disseminated, and trading information. In addition, before an ETP Holder recommends a transaction in the Shares, the ETP Holder must determine that the Shares are suitable for the customer, as required by NYSE Arca Equities Rule 9.2(a)-(b). The Exchange intends to utilize its existing surveillance procedures applicable to derivative products to monitor trading in the Shares. The Exchange represents that these procedures are adequate to monitor Exchange trading of the Shares. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act 6 in general and Section 6(b)(5) of the Act 7 in particular in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments and perfect the mechanisms of a free and open market, and to protect investors and the public interest. In addition, the Exchange believes that the proposal is consistent with Rule 12f-5 under the Act 8 because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78f(b)(5). 8 17 CFR 240.12f-5. B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments on the proposed rule change were neither solicited nor received. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NYSEArca-2006-36 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2006-36. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2006-36 and should be submitted on or before January 30, 2007. IV. Commission's Findings and Order Granting Accelerated Approval of the Proposed Rule Change After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 9 In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act, 10 which requires that an exchange have rules designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. The Commission believes that this proposal should benefit investors by increasing competition among markets that trade the Shares. 9 In approving this rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 10 15 U.S.C. 78f(b)(5). In addition, the Commission finds that the proposal is consistent with Section 12(f) of the Act, 11 which permits an exchange to trade, pursuant to UTP, a security that is listed and registered on another exchange. 12 The Commission notes that it previously approved the listing and trading of the Shares on NYSE. 13 The Commission also finds that the proposal is consistent with Rule 12f-5 under the Act, 14 which provides that an exchange shall not extend UTP to a security unless the exchange has in effect a rule or rules providing for transactions in the class or type of security to which the exchange extends UTP. The Exchange has represented that it meets this requirement because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 11 15 U.S.C. 78 *l* (f). 12 Section 12(a) of the Act, 15 U.S.C. 78 *l* (a), generally prohibits a broker-dealer from trading a security on a national securities exchange unless the security is registered on that exchange pursuant to Section 12 of the Act. Section 12(f) of the Act excludes from this restriction trading in any security to which an exchange “extends UTP.” When an exchange extends UTP to a security, it allows its members to trade the security as if it were listed and registered on the exchange even though it is not so listed and registered. 13 *See supra* note 3. 14 17 CFR 240.12f-5. The Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act, 15 which sets forth Congress' finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Quotations for and last sale information regarding the Shares are disseminated through the Consolidated Quotation System. Furthermore, an IOPV calculator updates the applicable IOPV every 15 seconds to reflect price changes in the principal foreign markets, and converts such prices into U.S. dollars based on the current currency exchange rate. When the foreign market or markets are closed but NYSE is open for trading, the IOPV is updated every 15 seconds to reflect changes in currency exchange rates. Furthermore, NYSE Arca Equities Rule 7.34 describes the situations when the Exchange would halt trading when the IOPV or the value of the Index underlying one of the Funds is not calculated or widely available. 15 15 U.S.C. 78k-1(a)(1)(C)(iii). The Commission notes that, if the Shares should be delisted by NYSE, the original listing exchange, the Exchange would no longer have authority to trade the Shares pursuant to this order. In support of this proposal, the Exchange has made the following representations: 1. The Exchange's surveillance procedures are adequate to monitor the trading of the Shares. 2. In connection with the trading of the Shares, the Exchange would inform ETP Holders in an Information Circular of the special characteristics and risks associated with trading the Shares. 3. The Information Circular would inform participants of the prospectus or product delivery requirements applicable to the Shares. This approval order is conditioned on the Exchange's adherence to these representations. The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the **Federal Register** . As noted previously, the Commission previously found that the listing and trading of the Shares on NYSE is consistent with the Act. The Commission presently is not aware of any regulatory issue that should cause it to revisit that earlier finding or preclude the trading of Shares on the Exchange pursuant to UTP. Therefore, accelerating approval of this proposal should benefit investors by creating, without undue delay, additional competition in the market for the Shares. V. Conclusion *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 16 that the proposed rule change (SR-NYSEArca-2006-36) is approved on an accelerated basis. 16 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 17 17 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E7-59 Filed 1-8-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-55017; File No. SR-NYSEArca-2006-34] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Trade the iShares® MSCI Index Funds Pursuant to Unlisted Trading Privileges December 28, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on October 18, 2006, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. The Commission is publishing this notice and order to solicit comments on the proposal from interested persons and to approve the proposal on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange, through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”) proposes to trade shares (“Shares”) of the following Index Funds (“Funds”) pursuant to unlisted trading privileges (“UTP”) based on NYSE Arca Equities Rule 5.2(j)(3): • iShares MSCI Belgium (Symbol: EWK) • iShares MSCI France
(EWQ)• iShares MSCI Hong Kong
(EWH)• iShares MSCI Italy
(EWI)• iShares MSCI Japan
(EWJ)• iShares MSCI Malaysia
(EWM)• iShares MSCI Netherlands
(EWN)• iShares MSCI Singapore
(EWS)• iShares MSCI Spain
(EWP)• iShares MSCI Sweden
(EWD)• iShares MSCI Switzerland
(EWL)• iShares MSCI United Kingdom (EWU). The text of the proposed rule change is available on the Exchange's Web site ( *http://www.nysearca.com* ), at the principal office of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange is proposing to trade the Shares pursuant to UTP. Each Fund seeks investment results that correspond generally to the price and yield performance, before fees and expenses, of publicly traded securities in the aggregate in the respective country's markets, as measured by the applicable MSCI Index (each, an “Index”). Each MSCI Index is calculated by Morgan Stanley Capital Investment (“MSCI”) and consists of stocks traded primarily on the respective country's stock exchange. Information regarding the largest stocks and industry categories in each Index can be found in the iShares MSCI Series prospectus, which is available via the iShares Web site ( *http://www.ishares.com* ). Each Fund uses a representative sampling strategy to track the applicable Index and normally will invest at least 95% of its total assets in stocks that are represented in the relevant Index and will at all times invest at least 90% of its total assets in such stocks. The Commission previously approved the original listing and trading of the Shares of the Funds on the American Stock Exchange, LLC (“Amex”). 3 The Commission subsequently approved listing of the Shares on the New York Stock Exchange (“NYSE”). 4 The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. The trading hours for the Shares on the Exchange are the same as those set forth in NYSE Arca Equities Rule 7.34, except that the iShares MSCI Belgium, France, Italy, Netherlands, Spain, Sweden, Switzerland, and United Kingdom Index Funds will not trade during the Opening Session (4 a.m. to 9:30 a.m. Eastern Time) unless the Indicative Optimized Portfolio Value (“IOPV”) is calculated and disseminated during that time. The iShares MSCI Hong Kong, Japan, Malaysia, and Singapore Index Funds will trade during the Opening Session since there is no overlap in trading hours of the Opening Session and the foreign markets trading the applicable Index securities. The last calculated IOPV for each of these four Funds is available to investors during the Opening Session through facilities of the Consolidated Tape Association (“CTA”) or major market data vendors. These IOPVs are unchanged during the Opening Session from their last calculated value. 3 *See* Securities Exchange Act Release No. 36947 (March 8, 1996), 61 FR 10606 (March 14, 1996) (SR-Amex-95-43). The Funds were formerly known as World Equity Benchmark Shares or WEBS. 4 *See* Securities Exchange Act Release No. 52816 (November 21, 2005), 70 FR 71574 (November 29, 2005) (SR-NYSE-2005-70). Quotations for and last sale information regarding the Shares for each Fund are disseminated through the Consolidated Quotation System. The MSCI Index on which each Fund is based is calculated by MSCI for each trading day in the applicable foreign market based on official closing prices in such markets. The value of each underlying MSCI Index is updated intra-day on a real-time basis as individual component securities of each underlying Index change in price. The intra-day values of these MSCI Indices are disseminated every 15 seconds throughout the trading day by organizations authorized by MSCI. The net asset value (“NAV”) of each Fund is calculated and disseminated each business day, normally at the close of regular trading of the NYSE. To provide updated information relating to each Fund for use by investors, professionals, and persons wishing to create or redeem the Shares, NYSE disseminates through the facilities of the CTA the IOPV for each Fund as calculated by Bloomberg, L.P. The IOPV is disseminated on a per-share basis every 15 seconds during regular NYSE trading hours of 9:30 a.m. to 4:15 p.m. Eastern Time. The IOPV may not reflect the value of all securities included in the applicable underlying Index. In addition, the IOPV does not necessarily reflect the precise composition of the current portfolio of securities held by each Fund at a particular point in time. Therefore, the IOPV on a per-share basis disseminated during NYSE's regular trading hours should not be viewed as a real-time update of the NAV of a particular Fund, which is calculated only once a day. The IOPV is intended to closely approximate the value per share of the portfolio of securities for a Fund and provide for a close proxy of the NAV at a greater frequency for investors. For the iShares MSCI Hong Kong, Japan, Malaysia, and Singapore Index Funds, there is no overlap in trading hours between the foreign markets and NYSE. Therefore, for these Funds, the IOPV is calculated based on closing prices in the principal foreign market for securities in the Funds' portfolios, which are then converted from the applicable foreign currency to U.S. dollars. This IOPV is updated every 15 seconds during NYSE regular trading hours of 9:30 a.m. to 4:15 p.m. E.T. to reflect changes in currency exchange rates between the U.S. dollar and the applicable foreign currency. The iShares MSCI Belgium, France, Italy, Netherlands, Spain, Sweden, Switzerland, and United Kingdom Index Funds include companies trading in markets with trading hours overlapping regular NYSE trading hours. For these Funds, the IOPV calculator updates the IOPV during the overlap period every 15 seconds to reflect price changes in the principal foreign market, and converts such prices into U.S. dollars based on the current currency exchange rate. When the foreign market or markets are closed but NYSE is open for trading, the IOPV is updated every 15 seconds to reflect changes in currency exchange rates. The Commission has granted each Fund an exemption from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940 (“1940 Act”). 5 Any product description used in reliance on the Section 24(d) exemptive order will comply with all representations made and all conditions contained in the Funds' application for orders under the 1940 Act. 6 5 15 U.S.C. 80a-24(d). 6 *See In the Matter of iShares, Inc., et al.* , Investment Company Act Release No. 25623 (June 25, 2002). In connection with the trading of the Shares, the Exchange would inform ETP Holders in an Information Circular of the special characteristics and risks associated with trading the Shares, including how Shares are created and redeemed, the prospectus or product description delivery requirements applicable to the Shares, applicable Exchange rules, how information about the value of each underlying Index is disseminated, and trading information. In addition, before an ETP Holder recommends a transaction in the Shares, the ETP Holder must determine the Shares are suitable for the customer, as required by NYSE Arca Equities Rule 9.2(a)-(b). The Exchange intends to utilize its existing surveillance procedures applicable to derivative products to monitor trading in the Shares. The Exchange represents that these procedures are adequate to monitor Exchange trading of the Shares. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act 7 in general and Section 6(b)(5) of the Act 8 in particular in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments and perfect the mechanisms of a free and open market, and to protect investors and the public interest. In addition, the Exchange believes that the proposal is consistent with Rule 12f-5 under the Act 9 because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 7 15 U.S.C. 78f(b). 8 15 U.S.C. 78f(b)(5). 9 17 CFR 240.12f-5. B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments on the proposed rule change were neither solicited nor received. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send e-mail to *rule-comments@sec.gov* . Please include File Number SR-NYSEArca-2006-34 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2006-34. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2006-34 and should be submitted on or before January 30, 2007. IV. Commission's Findings and Order Granting Accelerated Approval of the Proposed Rule Change After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 10 In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act 11 which requires that an exchange have rules designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. The Commission believes that this proposal should benefit investors by increasing competition among markets that trade the Shares. 10 In approving this rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 11 15 U.S.C. 78f(b)(5). In addition, the Commission finds that the proposal is consistent with Section 12(f) of the Act, 12 which permits an exchange to trade, pursuant to UTP, a security that is listed and registered on another exchange. 13 The Commission notes that it previously approved the listing and trading of the Shares on Amex and subsequently on NYSE. 14 The Commission also finds that the proposal is consistent with Rule 12f-5 under the Act, 15 which provides that an exchange shall not extend UTP to a security unless the exchange has in effect a rule or rules providing for transactions in the class or type of security to which the exchange extends UTP. The Exchange has represented that it meets this requirement because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 12 15 U.S.C. 78 *l* (f). 13 Section 12(a) of the Act, 15 U.S.C. 78l(a), generally prohibits a broker-dealer from trading a security on a national securities exchange unless the security is registered on that exchange pursuant to Section 12 of the Act. Section 12(f) of the Act excludes from this restriction trading in any security to which an exchange “extends UTP.” When an exchange extends UTP to a security, it allows its members to trade the security as if it were listed and registered on the exchange even though it is not so listed and registered. 14 *See supra* notes 3 and 4. 15 17 CFR 240.12f-5. The Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act, 16 which sets forth Congress' finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Quotations for and last sale information regarding the Shares are disseminated through the Consolidated Quotation System. Furthermore, an IOPV calculator updates the applicable IOPV every 15 seconds to reflect price changes of the applicable Index components in the principal foreign markets, and converts such prices into U.S. dollars based on the current currency exchange rate. When the foreign market or markets are closed but NYSE is open for trading, the IOPV will be updated every 15 seconds to reflect changes in currency exchange rates. NYSE Arca Rule 7.34 describes the situations when the Exchange would halt trading when the IOPV or the value of the Index underlying one of the Funds is not calculated or widely available. 16 15 U.S.C. 78k-1(a)(1)(C)(iii). The Commission notes that if the Shares should be delisted by the listing exchange, the Exchange would no longer have authority to trade the Shares pursuant to this order. In support of this proposal, the Exchange has made the following representations: 1. The Exchange's surveillance procedures are adequate to monitor the trading of the Shares. 2. In connection with the trading of the Shares, the Exchange would inform ETP Holders in an Information Circular of the special characteristics and risks associated with trading the Shares. 3. The Information Circular would inform participants of the prospectus or product delivery requirements applicable to the Shares. This approval order is conditioned on the Exchange's adherence to these representations. The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the **Federal Register** . As noted previously, the Commission previously found that the listing and trading of the Shares on Amex and subsequently NYSE is consistent with the Act. The Commission presently is not aware of any regulatory issue that should cause it to revisit that earlier finding or preclude the trading of Shares on the Exchange pursuant to UTP. Therefore, accelerating approval of this proposal should benefit investors by creating, without undue delay, additional competition in the market for the Shares. V. Conclusion *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 17 that the proposed rule change (SR-NYSEArca-2006-34) is approved on an accelerated basis. 17 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 18 18 17 CFR 200.30-3(a)(12). Jill M. Peterson, Assistant Secretary. [FR Doc. E7-63 Filed 1-8-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-55019; File No. SR-NYSEArca-2006-35] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Trade the iShares® S&P Global 100 Index Fund Pursuant to Unlisted Trading Privileges December 28, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on October 18, 2006, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. The Commission is publishing this notice and order to solicit comments on the proposal from interested persons and to approve the proposed rule change on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange, through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”) proposes to trade shares (“Shares”) of the iShares® S&P Global 100 Index Fund (“Fund”) (Symbol: IOO) pursuant to unlisted trading privileges (“UTP”) based on NYSE Arca Equities Rule 5.2(j)(3). The text of the proposed rule change is available on the Exchange's Web site ( *http://www.nysearca.com* ), at the principal office of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange is proposing to trade the Shares pursuant to UTP. The Fund measures the performance of 100 multinational companies that comprise the S&P Global 100 Index (“Index”) that are also part of the S&P Global 1200. Their businesses are global in nature and they derive a substantial portion of their operating income from multiple countries. The Fund represents an effort to meet the needs of investors wishing to track the performance of global companies. With 100 highly liquid components, the Index is designed to support low-cost, index-investment products, including exchange-traded funds. The Fund will use an “indexing” investment approach that attempts to replicate, before expenses, the performance of the Index. The Commission previously approved the original listing and trading of the Fund on the New York Stock Exchange (“NYSE”). 3 The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. The trading hours for the Shares on the Exchange would be the same as those set forth in NYSE Arca Equities Rule 7.34, except that the Shares will not trade during the Opening Session (4 a.m. to 9:30 a.m. Eastern Time) unless the Indicative Optimized Portfolio Value (“IOPV”) is calculated and disseminated during that time. 3 *See* Securities Exchange Act Release No. 43658 (December 1, 2000), 65 FR 77408 (December 11, 2000) (SR-NYSE-2000-53). Quotations for and last sale information regarding the Shares are disseminated through the Consolidated Quotation System. The value of the underlying Index is updated intra-day on a real-time basis as individual component securities of the underlying Index change in price. These intra-day values of the underlying Index are disseminated every 15 seconds throughout the trading day. In addition, a value for the underlying Index is disseminated once each trading day, based on closing prices of the Index components in the relevant foreign markets. The net asset value (“NAV”) of the Fund is calculated and disseminated each business day, normally at the close of regular trading of NYSE. To provide updated information relating to the Shares for use by investors, professionals, and persons wishing to create or redeem them, NYSE disseminates the IOPV for the Fund as calculated by a securities information provider. The IOPV is disseminated on a per-share basis every 15 seconds during regular NYSE trading hours of 9:30 a.m. to 4:15 p.m. Eastern Time. The IOPV will be calculated utilizing closing prices in the principal foreign markets for securities in the Fund portfolio, converted to U.S. dollars. The IOPV is updated during NYSE's trading hours to reflect changes in currency exchange rates between the U.S. dollar and the applicable foreign currency and includes the applicable cash component for the Fund. The Index includes companies trading in markets with trading hours overlapping NYSE's. During the overlap period, the IOPV calculator updates the IOPV every 15 seconds to reflect price changes of the Index components in the principal foreign markets, and converts such prices into U.S. dollars based on the currency exchange rate. When the foreign market or markets are closed but NYSE is open for trading, the IOPV is updated every 15 seconds to reflect changes in currency exchange rates. The IOPV may not reflect the value of all securities included in the applicable underlying Index. In addition, the IOPV does not necessarily reflect the precise composition of the current portfolio of securities held by the Fund at a particular point in time. Therefore, the IOPV on a per-share basis disseminated during NYSE's regular trading hours should not be viewed as a real-time update of the NAV of the Fund, which is calculated only once a day. The IOPV is intended to closely approximate the value per-share of the portfolio of securities for the Fund and provide for a close proxy of the NAV at a greater frequency for investors. The Commission has granted the Fund an exemption from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940 (“1940 Act”). 4 Any product description used in reliance on the Section 24(d) exemptive order will comply with all representations made and all conditions contained in the Fund's application for orders under the 1940 Act. 5 4 15 U.S.C. 80a-24(d). 5 *See In the Matter of iShares, Inc., et al.* , Investment Company Act Release No. 25623 (June 25, 2002). In connection with the trading of the Fund, the Exchange would inform ETP Holders in an Information Circular of the special characteristics and risks associated with trading the Shares, including how they are created and redeemed, the prospectus or product description delivery requirements applicable to the Shares, applicable Exchange rules, how information about the value of the underlying Index is disseminated, and trading information. In addition, before an ETP Holder recommends a transaction in the Shares, the ETP Holder must determine the Fund is suitable for the customer, as set forth in NYSE Arca Equities Rule 9.2(a)-(b). The Exchange intends to utilize its existing surveillance procedures applicable to derivative products to monitor trading in the Shares. The Exchange represents that these procedures are adequate to monitor Exchange trading of the Shares. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act 6 in general and Section 6(b)(5) of the Act 7 in particular in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments and perfect the mechanisms of a free and open market and to protect investors and the public interest. In addition, the Exchange believes that the proposal is consistent with Rule 12f-5 under the Act 8 because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 6 15 U.S.C. 78f(b). 7 15 U.S.C. 78f(b)(5). 8 17 CFR 240.12f-5. B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments on the proposed rule change were neither solicited nor received. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send e-mail to *rule-comments@sec.gov.* Please include File Number SR-NYSEArca-2006-35 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2006-35. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2006-35 and should be submitted on or before January 30, 2007. IV. Commission's Findings and Order Granting Accelerated Approval of the Proposed Rule Change After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 9 In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act 10 which requires that an exchange have rules designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. The Commission believes that this proposal should benefit investors by increasing competition among markets that trade the Shares. 9 In approving this rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 10 15 U.S.C. 78f(b)(5). In addition, the Commission finds that the proposal is consistent with Section 12(f) of the Act, 11 which permits an exchange to trade, pursuant to UTP, a security that is listed and registered on another exchange. 12 The Commission notes that it previously approved the listing and trading of the Shares on NYSE. 13 The Commission also finds that the proposal is consistent with Rule 12f-5 under the Act, 14 which provides that an exchange shall not extend UTP to a security unless the exchange has in effect a rule or rules providing for transactions in the class or type of security to which the exchange extends UTP. The Exchange has represented that it meets this requirement because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 11 15 U.S.C. 78 *l* (f). 12 Section 12(a) of the Act, 15 U.S.C. 78 *l* (a), generally prohibits a broker-dealer from trading a security on a national securities exchange unless the security is registered on that exchange pursuant to Section 12 of the Act. Section 12(f) of the Act excludes from this restriction trading in any security to which an exchange “extends UTP.” When an exchange extends UTP to a security, it allows its members to trade the security as if it were listed and registered on the exchange even though it is not so listed and registered. 13 *See supra* note 3. 14 17 CFR 240.12f-5. The Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act, 15 which sets forth Congress' finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Quotations for and last sale information regarding the Shares are disseminated through the Consolidated Quotation System. Furthermore, an IOPV calculator updates an IOPV for the Fund every 15 seconds to reflect price changes of the Index components in the principal foreign markets, and converts such prices into U.S. dollars based on the current currency exchange rate. When the foreign market or markets are closed but NYSE is open for trading, the IOPV is updated every 15 seconds to reflect changes in currency exchange rates. Furthermore, NYSE Arca Equities Rule 7.34 describes the circumstances where the Exchange would halt trading when the IOPV or the value of the underlying Index is not calculated or widely available. 15 15 U.S.C. 78k-1(a)(1)(C)(iii). The Commission notes that, if the Shares should be delisted by NYSE, the original listing exchange, the Exchange would no longer have authority to trade the Shares pursuant to this order. In support of this proposal, the Exchange has made the following representations: 1. The Exchange's surveillance procedures are adequate to monitor the trading of the Shares. 2. In connection with the trading of the Shares, the Exchange would inform ETP Holders in an Information Circular of the special characteristics and risks associated with trading the Shares. 3. The Information Circular would inform participants of the prospectus or product delivery requirements applicable to the Shares. This approval order is conditioned on the Exchange's adherence to these representations. The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the **Federal Register** . As noted previously, the Commission previously found that the listing and trading of the Shares on NYSE is consistent with the Act. The Commission presently is not aware of any regulatory issue that should cause it to revisit that earlier finding or preclude the trading of Shares on the Exchange pursuant to UTP. Therefore, accelerating approval of this proposal should benefit investors by creating, without undue delay, additional competition in the market for the Shares. V. Conclusion *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 16 that the proposed rule change (SR-NYSEArca-2006-35) is approved on an accelerated basis. 16 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 17 17 17 CFR 200.30-3(a)(12). Jill M. Peterson, Assistant Secretary. [FR Doc. E7-64 Filed 1-8-07; 8:45 am] BILLING CODE 8011-01-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Docket No. FHWA 2006-26654] Agency Information Collection Activities: Request for Comments for New Information Collection AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice and request for comments. SUMMARY: The FHWA invites public comment regarding our intention to request the Office of Management and Budget
(OMB)to approve a new information collection, which is summarized below under SUPPLEMENTARY INFORMATION. We are required to publish this notice in the **Federal Register** by the Paperwork Reduction Act of 1995. DATES: Please submit comments by March 12, 2007. ADDRESSES: You may submit comments identified by DOT DMS Docket Number FHWA-2006-26654 to the Docket Clerk, by any of the following methods: • *Web Site: http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Docket:* For access to the docket to read background documents or comments received go to *http://dms.dot.gov* at any time or to Room 401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Marshall Wainright, 202-366-4842, Office of Real Estate Services, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: *Title:* Fixed Residential Moving Cost Schedule. *Background:* Relocation assistance payments to owners and tenants who move personal property for a Federal or federally-assisted program or project is governed by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Uniform Act). 49 Code of Federal Regulations (CFR), Part 24, is the implementing regulation for the Uniform Act. 49 CFR 24.301 addresses payments for actual and reasonable moving and related expenses. The fixed residential moving cost schedule is an administrative alternative to reimbursement of actual moving costs. This option provides flexibility for the agency and affected property owners and tenants. The FHWA requests the State Departments of Transportation (State DOTs) to analyze moving cost data periodically to assure that the fixed residential moving cost schedules accurately reflect reasonable moving and related expenses. The regulation allows State DOTs flexibility in determining how to collect the cost data in order to reduce the burden of government regulation. Updated State fixed residential moving costs are submitted to the FHWA electronically. *Respondents:* State Departments of Transportation (52, including the District of Columbia and Puerto Rico). *Frequency:* Once every 3 years. *Estimated Average Burden per Response:* 24 hours per respondent. *Estimated Total Annual Burden Hours:* 24 hours for each of the 52 State Departments of Transportation. The total is 1,248 burden hours, once every 3 years, or 416 hours annually. *Public Comments Invited:* You are asked to comment on any aspect of this information collection, including:
(1)Whether the proposed collection is necessary;
(2)the accuracy of the estimated burden;
(3)ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and
(4)ways that the burden could be minimized without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection. Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48. Issued on: January 3, 2007. James R. Kabel, Chief, Management Programs and Analysis Division. [FR Doc. E7-80 Filed 1-8-07; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Docket No. FHWA-2006-26715] Agency Information Collection Activities: Notice of Request for Extension of Currently Approved Information AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice and request for comments. SUMMARY: The FHWA invites public comments about our intention to request the Office of Management and Budget's
(OMB)approval for renewal of an existing information collection, which is summarized below under Supplementary Information . We are required to publish this notice in the **Federal Register** by the Paperwork Reduction Act of 1995. DATES: Please submit comments by March 12, 2007. ADDRESSES: You may submit comments identified by DOT DMS Docket Number FHWA-2006-26715 by any of the following methods: • *Web Site: http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room 401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Guan Xu, 202-366-5892, Office of Safety Design, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 8 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: *Title:* Developing and Recording Costs for Railroad Adjustments. *OMB Control #:* 2125-0521. *Background:* Under 23 U.S.C. 130, the FHWA reimburses the State highway agencies when they have paid for the cost of projects that
(1)Eliminate hazards at railroad/highway crossings, or
(2)adjust railroad facilities to accommodate the construction of highway projects. The FHWA requires the railroad companies to document their costs incurred for adjusting their facilities. The railroad companies must have a system for recording labor, materials, supplies, and equipment costs incurred when undertaking the necessary railroad work. This record of costs forms the basis for payment by the State highway agency to the railroad company, and in turn FHWA reimburses the State for its payment to the railroad company. *Respondents:* Approximately 135 railroad companies. *Frequency:* Nearly 135 railroad companies are involved in an average of 10 railroad/highway projects per year, so the total frequency is 1,350 railroad adjustments. *Estimated Average Burden per Response:* The average number of hours required to calculate the railroad adjustment costs and maintain the required records per adjustment is 12 hours. *Estimated Total Annual Burden Hours:* The FHWA estimates that the total annual burden imposed on the public by this collection is 16,200 hours. *Public Comments Invited:* You are asked to comment on any aspect of this information collection, including:
(1)Whether the proposed collection is necessary for the FHWA's performance;
(2)the accuracy of the estimated burdens;
(3)ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and
(4)ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection. Authority: 23 U.S.C. 121, 130; 23 CFR 140 Subpart I; the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48. Issued on: December 29, 2006. James R. Kabel, Chief, Management Programs and Analysis Division. [FR Doc. E7-81 Filed 1-8-07; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2006-26066] Qualification of Drivers; Exemption Applications; Vision AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of final disposition. SUMMARY: FMCSA announces its decision to exempt 75 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). The exemptions will enable these individuals to operate commercial motor vehicles
(CMVs)in interstate commerce without meeting the prescribed vision standard. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to, or greater than, the level of safety maintained without the exemptions for these CMV drivers. DATES: The exemptions are effective January 9, 2007. The exemptions expire on January 8, 2009. FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief,Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov,* FMCSA, Department of Transportation, 400 Seventh Street, SW., Room 8301, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access You may see all the comments online through the Document Management System
(DMS)at *http://dmses.dot.gov.* *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* and/or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's complete Privacy Act Statement in the **Federal Register** (65 FR 19477, Apr. 11, 2000). This statement is also available at *http://dms.dot.gov.* Background On October 30, 2006, FMCSA published a notice of receipt of exemption applications from 75 individuals, and requested comments from the public(71 FR 63380). The 75 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce. They are: Lucas R. Aleman, Michael L. Allen, Jose C. Azuara, Felipe Bayron, Dennis M. Boggs, Daniel D. Bradshaw, Roy L. Brown, Richard A. Brown, Jr., David S. Brumfield, Fabian L. Burnett, David L. Cattoor, Roger E. Clark, Steven J. Clark, Gary C. Cone, Timothy E. Coultas, Cesar A. Cruz, Arthur Dolengewicz, Myron R. Durham, Wayne A. Elkins II, Barry Ferdinando, Leon C. Flynn, David G. Guldan, Richard G. Gruber, Larry W. Hancock, Guadalupe J. Hernandez, James L. Houser, Richard G. Isenhart, Ricky G. Jacks, Damir Kocijan, Timothy P. Keogh, Joe E. Jones, William S. LaMar, Sr., Robert T. Lantry, John W. Laskey, Johnny L. Lindsey, Calvin E. Lloyd, Kenneth Liuzza, Samson B. Margison, Terrence L. McKinney, Michael W. McClain, Ellis T. McKneely, Dennis N. McQuiston, Garth R. Mero, Donald G. Meyer, Ross W. Mockler, Ronald C. Morris, Harry M. Oxendine, Kenneth E. Parrott, Charles R. Patten, Lionel Payne, Jr., Randel G. Pierce, Darrol W. Rippee, Edgardo Rivera, Myriam Rodriguez, Raymond E. Royer, James E. Savage, Steven M. Scholfield, Randal C. Schmude, Raymond C. Simpkins, Dennis J. Smith, W.C. Sparks, James A. Strickland, David C. Stitt, Jesse J. Sutton, Gary L. Taylor, Kevin L. Truxell, Brian S. Tuttle, Humberto A. Valles, Earl M. Vaughan, Bruce A Walker, Harold R. Wallace, Lee A. Wiltjer, John H. Wisner, Harold E. White, and Theron L. Wood. Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 75 applications on their merits and made a determination to grant exemptions to all of them. The comment period closed on Nov 29, 2006. Vision and Driving Experience of the Applicants The vision requirement in the FMCSRs provides: A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber (49 CFR 391.41(b)(10)). FMCSA recognizes that some drivers do not meet the vision standard, but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 75 exemption applicants listed in this Notice are in this category. They are unable to meet the vision standard in one eye for various reasons, including amblyopia, glaucoma, macular scar, aphakia, retinal detachment, optic neuropathy, esotropia, choroidal hemangioma, corneal scaring, prosthesis, corneal opacity, optic atrophy, macular hemorrhage, and loss of vision due to trauma. In most cases, their eye conditions were not recently developed. All but twenty-two of the applicants were either born with their vision impairments or have had them since childhood. The twenty-two individuals who sustained their vision conditions as adults have had them for periods ranging from 3 to 45 years. Although each applicant has one eye which does not meet the vision standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses
(CDLs)or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV. All these applicants satisfied the testing standards for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a commercial vehicle, with their limited vision, to the satisfaction of the State. While possessing a valid CDL or non-CDL, these 75 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision for careers ranging from 3 to 45 years. In the past 3 years, seven of the drivers have had convictions for traffic violations and two of them were involved in crashes. The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the October 30, 2006 Notice (71 FR 63380). Basis for Exemption Determination Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision standard in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce. To evaluate the effect of these exemptions on safety, FMCSA considered not only the medical reports about the applicants' vision, but also their driving records and experience with the vision deficiency. To qualify for an exemption from the vision standard, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at docket number FMCSA-98-3637. We believe we can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's
(FHWA)former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively. (See 61 FR 13338, 13345, March 26, 1996.) The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely. The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly. (See Bates and Neyman, University of California Publications in Statistics, April 1952.) Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes. (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971.) A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year. Applying principles from these studies to the past 3-year record of the 75 applicants, three of the applicants had traffic violations for speeding, three applicants failed to obey a traffic sign, one applicant failed to drive within the proper lane, and two of the applicants were involved in crashes. The applicants achieved this record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future. We believe the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision standard in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 75 applicants listed in the notice of October 30, 2006 (71 FR 63380). We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 75 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program. Those requirements are found at 49 CFR 391.64(b) and include the following:
(1)That each individual be physically examined every year
(a)by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b)by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41;
(2)that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(3)that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official. Discussion of Comments Advocates for Highway and Auto Safety (Advocates) expressed opposition to FMCSA's policy to grant exemptions from the FMCSR, including the driver qualification standards. Specifically, Advocates:
(1)Objects to the manner in which FMCSA presents driver information to the public and makes safety determinations;
(2)objects to the Agency's reliance on conclusions drawn from the vision waiver program;
(3)claims the Agency has misinterpreted statutory language on the granting of exemptions (49 U.S.C. 31136(e) and 31315); and finally
(4)suggests that a 1999 Supreme Court decision affects the legal validity of vision exemptions. The issues raised by Advocates were addressed at length in 64 FR 51568 (September 23, 1999), 64 FR 66962 (November 30, 1999), 64 FR 69586 (December 13, 1999), 65 FR 159 (January 3, 2000), 65 FR 57230 (September 21, 2000), and 66 FR 13825 (March 7, 2001). We will not address these points again here, but refer interested parties to those earlier discussions. A representative from the Wisconsin Department of Transportation reported that two of the drivers from the State of Wisconsin were given interstate Medical Examiner Certificates by medical examiners although they did not qualify due to their vision deficiency. However, this did not result in improper licensure by the State of Wisconsin. FMCSA will follow up on this reported medical examiner certification issue. These two drivers will be required, as a condition of the exemption to obtain new Medical Examiner Certificates that reflect the need for a Federal exemption from the vision standard. Nine letters of recommendation were received in favor of granting the Federal vision exemption to Mr. Edgardo Rivera and Mr. Ricky Jacks due to their high level of professionalism and safety while driving. Two comments were received in support of the Federal vision exemption program. Two individuals oppose the granting of vision exemptions to vision impaired drivers. They believe that granting vision exemptions to drivers makes the roads more dangerous. In regard to the last two comments, the discussion under the heading, “Basis for Exemption Determination,” explains in detail the evaluation methods the Agency utilizes prior to granting an exemption to ensure that the granting of an exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. To evaluate the effect of these exemptions on safety, FMCSA considered not only the medical reports about the applicants' vision, but also their driving records and experience with the vision deficiency. To qualify for an exemption from the vision standard, FMCSA requires a person to present verifiable evidence that he or she has driven a commercial vehicle safely with the vision deficiency for 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at docket number FMCSA-98-3637. Conclusion Based upon its evaluation of the 75 exemption applications, FMCSA exempts Lucas R. Aleman, Michael L. Allen, Jose C. Azuara, Felipe Bayron, Dennis M. Boggs, Daniel D. Bradshaw, Roy L. Brown, Richard A. Brown, Jr., David S. Brumfield, Fabian L. Burnett, David L. Cattoor, Roger E. Clark, Steven J. Clark, Gary C. Cone, Timothy E. Coultas, Cesar A. Cruz, Arthur Dolengewicz, Myron R. Durham, Wayne A. Elkins II, Barry Ferdinando, Leon C. Flynn, David G. Guldan, Richard G. Gruber, Larry W. Hancock, Guadalupe J. Hernandez, James L. Houser, Richard G. Isenhart, Ricky G. Jacks, Damir Kocijan, Timothy P. Keogh, Joe E. Jones, William S. LaMar, Sr., Robert T. Lantry, John W. Laskey, Johnny L. Lindsey, Calvin E. Lloyd, Kenneth Liuzza, Samson B. Margison, Terrence L. McKinney, Michael W. McClain, Ellis T. McKneely, Dennis N. McQuiston, Garth R. Mero, Donald G. Meyer, Ross W. Mockler, Ronald C. Morris, Harry M. Oxendine, Kenneth E. Parrott, Charles R. Patten, Lionel Payne, Jr., Randel G. Pierce, Darrol W. Rippee, Edgardo Rivera, Myriam Rodriguez, Raymond E. Royer, James E. Savage, Steven M. Scholfield, Randal C. Schmude, Raymond C. Simpkins, Dennis J. Smith, W.C. Sparks, James A. Strickland, David C. Stitt, Jesse J. Sutton, Gary L. Taylor, Kevin L. Truxell, Brian S. Tuttle, Humberto A. Valles, Earl M. Vaughan, Bruce A Walker, Harold R. Wallace, Lee A. Wiltjer, John H. Wisner, Harold E. White, and Theron L. Wood from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if:
(1)The person fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time. Issued on: January 3, 2007. Larry W. Minor, Office Director, Bus and Truck Standards and Operations. [FR Doc. E7-96 Filed 1-8-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-02-12844] Qualification of Drivers; Exemption Applications; Vision AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of renewal of exemptions; request for comments. SUMMARY: FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 15 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle
(CMV)drivers. DATES: This decision is effective January 17, 2007. Comments must be received on or before February 8, 2007. ADDRESSES: You may submit comments identified by DOT Docket Management System
(DMS)Docket Number FMCSA-02-12844, using any of the following methods. • *Web site: http://dmses.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All submissions must include the Agency name and docket numbers for this Notice. Note that all comments received will be posted without change to *http://dms.dot.gov* , including any personal information provided. Please see the Privacy Act heading for further information. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. *Privacy Act:* Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This information is also available at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov* , FMCSA, Department of Transportation, 400 Seventh Street, SW., Room 8301, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., E.T., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Exemption Decision Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This notice addresses 15 individuals who have requested renewal of their exemptions in a timely manner. FMCSA has evaluated these 15 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are: Thomas J. Boss, Neil W. Jennings, Andrew H. Rusk, Howard F. Breitkreutz, Craig M. Landry, Richard L. Sheppard, John E. Evenson, William R. Mayfield, Kenneth E. Vigue, Jr., Steven C. Humke, Richard E. Nordhausen, Jr., David G. Williams, Leon E. Jackson, Tony E. Parks, Richard A. Winslow. These exemptions are extended subject to the following conditions:
(1)That each individual have a physical examination every year
(a)by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b)by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41;
(2)that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(3)that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if:
(1)The person fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 15 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (67 FR 68719; 68 FR 2629; 69 FR 71100). Each of these 15 applicants has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. Request for Comments FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by February 8, 2007. FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 15 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited **Federal Register** publications. Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver. Issued on: January 3, 2007. Larry W. Minor, Office Director, Bus and Truck Standards and Operations. [FR Doc. E7-97 Filed 1-8-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-98-3637, FMCSA-00-7165, FMCSA-00-7363, FMCSA-00-8203, FMCSA-02-12294] Qualification of Drivers; Exemption Applications; Vision AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of renewal of exemptions; request for comments. SUMMARY: FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 10 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle
(CMV)drivers. DATES: This decision is effective January 13, 2007. Comments must be received on or before February 8, 2007. ADDRESSES: You may submit comments identified by DOT Docket Management System
(DMS)Docket Numbers FMCSA-98-3637, FMCSA-00-7165, FMCSA-00-7363, FMCSA-00-8203, FMCSA-02-12294, using any of the following methods. • *Web Site: http://dmses.dot.gov* . Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. *Instructions:* All submissions must include the Agency name and docket numbers for this Notice. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. Please see the Privacy Act heading for further information. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. *Privacy Act:* Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This information is also available at *http://dms.dot.gov* . FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov,* FMCSA, Department of Transportation, 400 Seventh Street, SW., Room 8301, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., E.T., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Exemption Decision Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This notice addresses 10 individuals who have requested renewal of their exemptions in a timely manner. FMCSA has evaluated these 10 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are: Robert R. Buis George J. Ghigliotty Robert J. Johnson Charles R. Kuderer Thomas D. Laws Clifford C. Priesmeyer Gerald R. Rietmann Arthur A. Sappington William H. Smith Edward C. Williams These exemptions are extended subject to the following conditions:
(1)That each individual have a physical examination every year
(a)by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b)by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41;
(2)that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(3)that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if:
(1)The person fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (63 FR 30285; 63 FR 54519; 65 FR 66293; 68 FR 1654; 69 FR 71098; 65 FR 33406; 65 FR 57234; 67 FR 57266; 65 FR 45817; 65 FR 77066; 67 FR 71610; 67 FR 46016; 67 FR 57267). Each of these 10 applicants has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. Request for Comments FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by February 8, 2007. FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 10 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited **Federal Register** publications. Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver. Issued on: January 3, 2007. Larry W. Minor, Office Director, Bus and Truck Standards and Operations. [FR Doc. E7-98 Filed 1-8-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-00-7165, FMCSA-04-19477] Qualification of Drivers; Exemption Applications; Vision AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of renewal of exemptions; request for comments. SUMMARY: FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 20 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle
(CMV)drivers. DATES: This decision is effective January 14, 2007. Comments must be received on or before February 8, 2007. ADDRESSES: You may submit comments identified by DOT Docket Management System
(DMS)Docket Numbers FMCSA-00-7165, FMCSA-04-19477, using any of the following methods. • *Web Site: http://dmses.dot.gov* . Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. *Instructions:* All submissions must include the Agency name and docket numbers for this Notice. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. Please see the Privacy Act heading for further information. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. *Privacy Act:* Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This information is also available at *http://dms.dot.gov* . FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical Qualifications Division,
(202)366-4001, *maggi.gunnels@dot.gov* , FMCSA, Department of Transportation, 400 Seventh Street, SW., Room 8301, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., E.T., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Exemption Decision Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This notice addresses 20 individuals who have requested renewal of their exemptions in a timely manner. FMCSA has evaluated these 20 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are: Johnny Becerra Ross E. Burroughs Lester W. Carter Larry Chinn Christopher L. DePuy John B. Ethridge Larry J. Folkerts Randolph D. Hall Richard T. Hatchel Paul W. Hunter Robert L. LaFollette Ray P. Lenz Michael B. McClure Lamont S. McCord Francis M. McMullin Joe L. Meredith, Jr. Norman Mullins Harold W. Mumford Clarence H. Redding David J. Triplett These exemptions are extended subject to the following conditions:
(1)That each individual have a physical examination every year
(a)by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b)by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41;
(2)that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and
(3)that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if:
(1)The person fails to comply with the terms and conditions of the exemption;
(2)the exemption has resulted in a lower level of safety than was maintained before it was granted; or
(3)continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. Basis for Renewing Exemptions Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 20 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (65 FR 33406; 65 FR 57234; 69 FR 64806; 70 FR 2705). Each of these 20 applicants has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. Request for Comments FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by February 8, 2007. FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 20 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited **Federal Register** publications. Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver. Issued on: January 3, 2007. Larry W. Minor, Office Director, Bus and Truck Standards and Operations. [FR Doc. E7-99 Filed 1-8-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Transit Administration Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations AGENCY: Federal Transit Administration (FTA), DOT. ACTION: Notice of random drug and alcohol testing rates. SUMMARY: This notice announces the random testing rates for employers subject to the Federal Transit Administration's
(FTA)drug and alcohol rules. DATES: *Effective Date:* January 9, 2007. FOR FURTHER INFORMATION CONTACT: Jerry Powers, Drug and Alcohol Program Manager for the Office of Safety and Security,
(202)366-2896 (telephone) and
(202)366-7951 (fax). Electronic access to this and other documents concerning FTA's drug and alcohol testing rules may be obtained through the FTA World Wide Web home page at *http://www.fta.dot.gov* , click on “Safety and Security.” SUPPLEMENTARY INFORMATION: On January 1, 1995, FTA required large transit employers to begin drug and alcohol testing employees performing safety-sensitive functions and to begin submitting annual reports by March 15 of each year beginning in 1996. The annual report includes the number of employees who had a verified positive for the use of prohibited drugs, and the number of employees who tested positive for the misuse of alcohol. Small employers commenced their FTA-required testing on January 1, 1996, and began reporting the same information as the large employers beginning March 15, 1997. The testing rules were updated on August 1, 2001, and established a random testing rate for prohibited drugs and the misuse of alcohol. The rules require that employers conduct random drug tests at a rate equivalent to at least 50 percent of their total number of safety-sensitive employees for prohibited drug use and at least 25 percent for the misuse of alcohol. The rules provide that the drug random testing rate may be lowered to 25 percent if the “positive rate” for the entire transit industry is less than one percent for two preceding consecutive years. Once lowered, it may be raised to 50 percent if the positive rate equals or exceeds one percent for any one year (“positive rate” means the number of positive results for random drug tests conducted under 49 CFR 655.45 plus the number of refusals of random tests required by 49 CFR 655.49, divided by the total number of random drug tests, plus the number of refusals of random tests required by 49 CFR Part 655). The alcohol provisions provide that the random rate may be lowered to 10 percent if the “violation rate” for the entire transit industry is less than 0.5 percent for two consecutive years. It will remain at 25 percent if the “violation rate” is equal to or greater than 0.5 percent but less than one percent, and it will be raised to 50 percent if the “violation rate” is one percent or greater for any one year (“violation rate” means the number of covered employees found during random tests given under 49 CFR 655.45 to have an alcohol concentration of .04 or greater, plus the number of employees who refuse a random test required by 49 CFR 655.49, divided by the total reported number of random alcohol tests plus the total number of refusals of random tests required by 49 CFR Part 655.) 49 CFR 655.45(b) states that, “the Administrator's decision to increase or decrease the minimum annual percentage rate for random drug and alcohol testing is based, in part, on the reported positive drug and alcohol violation rates for the entire industry. The information used for this determination is drawn from the drug and alcohol Management Information System
(MIS)reports required by 49 CFR Part 655. In determining the reliability of the data, the Administrator shall consider the quality and completeness of the reported data, may obtain additional information or reports from employers, and may make appropriate modifications in calculating the industry's verified positive results and violation rates.” The Administrator has determined that the random drug testing rate shall be reduced from 50 to 25 percent for 2007 due to a “positive rate” lower than 1.0 percent for random drug test data from 2003 through 2005. The random drug rates for the three preceding consecutive years are 0.96 for 2003, 0.89 percent for 2004 and 0.79 percent for 2005. In 2006, the FTA retained the random alcohol testing rate of 10 percent (reduced previously from 25 percent) based on the “positive rate” for random alcohol test data from 2003 and 2004. Because the random alcohol violation rate was again lower than 0.5 percent for the two preceding consecutive years (0.11 percent for 2004 and 0.11 percent for 2005), the random alcohol testing rate will remain at 10 percent for 2007. FTA detailed reports on the drug and alcohol testing data collected from transit employers may be obtained from the Office of Safety and Security, Federal Transit Administration, 400 Seventh Street, SW., Room 9301, Washington, DC 20590,
(202)366-2896 or at *http://transit-safety.volpe.dot.gov/Publications.* Issued on January 4, 2007. James S. Simpson, Administrator. [FR Doc. 07-43 Filed 1-5-07; 12:40 pm]
Connectionstraces to 13
Traces to 13 documents
U.S. Code
- Registration, responsibilities, and oversight of self-regulatory organizations§ 78s
- National securities exchanges§ 78f
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Definitions and application§ 78c
- National market system for securities; securities information processors§ 78k–1
- Registration of securities under Securities Act of 1933§ 80a–24
- Registration requirements for securities§ 78l
- Railway-highway crossings§ 130
- Payment to States for construction§ 121
- United States Government regulations§ 31136
- Waivers, exemptions, and pilot programs§ 31315
16 references not yet in our index
- 17 CFR 240
- 17 CFR 240.19
- 17 CFR 240.12
- 15 USC 87a-24(d)
- 15 USC 78
- 49 CFR 24.301
- 49 CFR 1.48
- 23 CFR 140
- 49 CFR 391.41(b)(10)
- 49 CFR 391.64(b)
- 49 CFR 391.41
- 49 CFR 381
- 49 CFR 655.45
- 49 CFR 655.49
- 49 CFR 655
- 49 CFR 655.45(b)
Citation graph
cites case law
Notices
Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (the “Act”)
Cite17 CFR 240
Cite17 CFR 240.19
Cite17 CFR 240.12
Cites 29 · showing 12Cited by 0 across 0 sources