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Code · REGISTER · 2007-08-14 · NUCLEAR REGULATORY COMMISSION · Notices

Notices. Notice of Availability

43,577 words·~198 min read·/register/2007/08/14/07-3974

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

BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Biweekly Notice; Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations I. Background Pursuant to section 189a.
(2)of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person. This biweekly notice includes all notices of amendments issued, or proposed to be issued from July 19, 2007, to August 1, 2007. The last biweekly notice was published on July 31, 2007 (72 FR 41780). Notice of Consideration of Issuance of Amendments to Facility Operating Licenses, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not
(1)involve a significant increase in the probability or consequences of an accident previously evaluated; or
(2)create the possibility of a new or different kind of accident from any accident previously evaluated; or
(3)involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below. The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination. Within 60 days after the date of publication of this notice, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the **Federal Register** a notice of issuance. Should the Commission make a final No Significant Hazards Consideration Determination, any hearing will take place after issuance. The Commission expects that the need to take this action will occur very infrequently. Written comments may be submitted by mail to the Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this **Federal Register** notice. Written comments may also be delivered to Room 6D22, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland, from 7:30 a.m. to 4:15 p.m. Federal workdays. Copies of written comments received may be examined at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. The filing of requests for a hearing and petitions for leave to intervene is discussed below. Within 60 days after the date of publication of this notice, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, *http://www.nrc.gov/reading-rm/doc-collections/cfr/.* If a request for a hearing or petition for leave to intervene is filed within 60 days, the Commission or a presiding officer designated by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the Chief Administrative Judge of the Atomic Safety and Licensing Board will issue a notice of a hearing or an appropriate order. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements:
(1)The name, address, and telephone number of the requestor or petitioner;
(2)the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding;
(3)the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and
(4)the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party. Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment. A request for a hearing or a petition for leave to intervene must be filed by:
(1)First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff;
(2)courier, express mail, and expedited delivery services: Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff;
(3)E-mail addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission, *HearingDocket@nrc.gov;* or
(4)facsimile transmission addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC, Attention: Rulemakings and Adjudications Staff at
(301)415-1101, verification number is
(301)415-1966. A copy of the request for hearing and petition for leave to intervene should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and it is requested that copies be transmitted either by means of facsimile transmission to
(301)415-3725 or by e-mail to *OGCMailCenter@nrc.gov.* A copy of the request for hearing and petition for leave to intervene should also be sent to the attorney for the licensee. Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission or the presiding officer of the Atomic Safety and Licensing Board that the petition, request and/or the contentions should be granted based on a balancing of the factors specified in 10 CFR 2.309(a)(1)(i)-(viii). For further details with respect to this action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site, *http://www.nrc.gov/reading-rm/adams.html.* If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1
(800)397-4209,
(301)415-4737 or by e-mail to *pdr@nrc.gov.* Calvert Cliffs Nuclear Power Plant, Inc., Docket Nos. 50-317 and 50-318, Calvert Cliffs Nuclear Power Plant, Unit Nos. 1 and 2, Calvert County, Maryland *Date of amendments request:* June 29, 2007. *Description of amendments request:* The amendment would modify Technical Specification
(TS)requirements related to control room envelope
(CRE)habitability in TS 3.7.8, “Control Room Emergency Ventilation System (CREVS),” and TS 5.5, “Programs and Manuals.” The changes are consistent with the Nuclear Regulatory Commission approved Technical Specification Task Force (TSTF)-448, Revision 3, “Control Room Habitability.” The availability of the TS improvement was published in the **Federal Register** on January 17, 2007 (72 FR 2022) as part of the consolidated item improvement process (CLIIP). In addition, the amendment would remove a footnote currently contained in the Completion Time of TS 3.7.8, Required Action D. The footnote was added in Amendment Nos. 250/227 and was only applicable during the Unit 1 2002 refueling outage. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. The proposed change does not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, or configuration of the facility. The proposed change does not alter or prevent the ability of structures, systems, and components
(SSCs)to perform their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change revises the TS for the CRE emergency ventilation system, which is a mitigation system designed to minimize unfiltered air leakage into the CRE and to filter the CRE atmosphere to protect the CRE occupants in the event of accidents previously analyzed. An important part of the CRE emergency ventilation system is the CRE boundary. The CRE emergency ventilation system is not an initiator or precursor to any accident previously evaluated. Therefore, the probability of any accident previously evaluated is not increased. Performing tests to verify the operability of the CRE boundary and implementing a program to assess and maintain CRE habitability ensure that the CRE emergency ventilation system is capable of adequately mitigating radiological consequences to CRE occupants during accident conditions, and that the CRE emergency ventilation system will perform as assumed in the consequence analyses of design basis accidents. Thus, the consequences of any accident previously evaluated are not increased. The removal of a footnote [to TS 3.7.8] that is no longer applicable is an editorial change that does not affect accident initiators or precursors, nor alter the design assumptions, conditions or configuration of the facility. The proposed change also does not affect the ability of SSCs to perform their intended function to mitigate the consequences of an accident. Therefore, the proposed editorial change does not increase the probability or consequences of an accident previously evaluated. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed change does not impact the accident analysis. The proposed change does not alter the required mitigation capability of the CRE emergency ventilation system, or its functioning during accident conditions as assumed in the licensing basis analyses of design basis accident radiological consequences to CRE occupants. No new or different accidents result from performing the new surveillance or following the new program. The proposed change does not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or a significant change in the methods governing normal plant operation. The proposed change does not alter any safety analysis assumptions and is consistent with current plant operating practice. The proposed change is the editorial removal of a footnote [to TS 3.7.8] that no longer applies. The removal of a footnote that no longer applies does not impact the accident analyses. Additionally, it does not add or modify any existing plant equipment and does not introduce any new operational methods. Therefore, the proposed editorial change does not create the possibility of a new or different kind of accident from any accident previously evaluated. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated. 3. Does the proposed change involve a significant reduction in a margin of safety? *Response:* No. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The proposed change does not affect safety analysis acceptance criteria. The proposed change will not result in plant operation in a configuration outside the design basis for an unacceptable period of time without compensatory measures. The proposed change does not adversely affect systems that respond to safely shut down the plant and to maintain the plant in a safe shutdown condition. The proposed editorial change [removal of a footnote to TS 3.7.8] does not affect safety analyses acceptance criteria or safety system operation. Removal of a footnote that is no longer applicable does not result in plant operation outside the design basis. Therefore, the proposed editorial change does not involve a reduction in the margin of safety. Therefore, the proposed change does not involve a significant reduction in a margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Carey Fleming, Sr. Counsel—Nuclear Generation, Constellation Generation Group, LLC, 750 East Pratt Street, 17th floor, Baltimore, MD 21202. *NRC Branch Chief:* Mark G. Kowal. Exelon Generation Company, LLC, Docket Nos. 50-352 and 50-353, Limerick Generating Station, Units 1 and 2, Montgomery County, Pennsylvania *Date of amendment request:* February 20, 2007. *Description of amendment request:* The proposed change would revise Limerick Generating Station (LGS), Units 1 and 2, Technical Specifications (TSs), Section 6.8.4.g, “Primary Containment Leakage Rate Testing Program,” to allow a one-time extension of no more than 5 years for the Type A, Integrated Leakage Rate Test
(ILRT)interval. This revision is a one-time exception to the 10-year frequency of the performance-based leakage rate testing program for Type A tests as defined in Nuclear Energy Institute
(NEI)document NEI 94-01, Revision 0, “Industry Guideline For Implementing Performance-Based Option of 10 CFR Part 50, Appendix J,” pursuant to Title 10 of the Code of Federal Regulations (10 CFR) Part 50, Appendix J, Option B. The requested exception is to allow the ILRT to be performed within 15 years from the last ILRT as opposed to the current 10-year frequency. The most recent containment Type A ILRTs for LGS Units 1 and 2 were performed on May 15, 1998, and May 21, 1999, respectively. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. The proposed change will revise TS 6.8.4.g (“Primary Containment Leakage Rate Testing Program”) of the LGS, Units 1 and 2 TS to reflect a one-time extension to the Type A Integrated Leak Rate Test
(ILRT)as currently specified in the Technical Specifications. This change will extend the requirement to perform the Type A ILRT from the current requirement of 10 to 15 years, which is “no later than May 15, 2013” for LGS, Unit 1 and is “no later than May 21, 2014” for Unit 2. The function of the containment is to isolate and contain fission products released from the reactor coolant system following a design basis Loss of Coolant Accident
(LOCA)and to confine the postulated release of radioactive material to within limits. The test interval associated with Type A ILRTs is not a precursor of any accident previously evaluated. Type A ILRTs provide assurance that the LGS, Units 1 and 2 containments will not exceed allowable leakage rate values specified in the TS and will continue to perform their design function following an accident. The risk assessment of the proposed change has concluded that there is an insignificant increase in Large Early Release Frequency, Person-Rem, and Conditional Containment Failure Frequency. Additionally, containment inspections have also been performed which demonstrate the continued structural integrity of the primary containment and will be performed in the future as required by the ASME Code. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed change for a one-time extension of the Type A ILRTs for LGS, Units 1 and 2 will not affect the control parameters governing unit operation or the response of plant equipment to transient and accident conditions. The proposed change does not introduce any new equipment, modes of system operation or failure mechanisms. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated. 3. Does the proposed amendment involve a significant reduction in a margin of safety? *Response:* No. The integrity of the containment penetrations and isolation valves is verified through Type B and Type C local leak rate tests (LLRTs) and the overall leak tight integrity of the containment is verified by a Type A ILRT, as required by 10 CFR 50, Appendix J, “Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactors.” These tests are performed to verify the essentially leak tight characteristics of the containment at the design basis accident pressure. The proposed change for a one-time extension of the Type A ILRT does not affect the method for Type A, B or C testing or the test acceptance criteria. EGC has conducted a risk assessment to determine the impact of a change to the LGS, Units 1 and 2 Type A ILRT from 10 to 15 years. This risk assessment measured the impact to the Large Early Release Frequency, Person-Rem, and Conditional Containment Failure Frequency. This assessment indicated that the proposed LGS, Units 1 and 2 Type A ILRT interval extension has a very small change in risk to the public and is an acceptable plant change from a risk perspective. Therefore, the proposed change does not involve a significant reduction in a margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Mr. Bradley Fewell, Associate General Counsel, Exelon Generation Company, LLC, 4300 Winfield Road, Warrenville, IL 60555. *NRC Branch Chief:* Harold K. Chernoff. Florida Power and Light Company, Docket Nos. 50-335 and 50-389, St. Lucie Plant, Units 1 and 2, St. Lucie County, Florida *Date of amendment request:* June 4, 2007. *Description of amendment request:* The proposed amendment would remove the Technical Specification
(TS)requirements that reference hydrogen recombiners and hydrogen monitors. The proposed amendment suggests changes support implementation of the revisions to 10 CFR 50.44, “Standards for Combustible Gas Control System in Light Water Cooled Power Reactors,” that became effective on September 16, 2003. The changes would be consistent with Revision 1 of the NRC-approved Technical Specification Task Force
(TSTF)Standard Technical Specification Change Traveler, TSTF-447, “Elimination of Hydrogen Recombiners and Change to Hydrogen and Oxygen Monitors.” The particular TS improvement in question was announced in the **Federal Register** Notice on September 25, 2003, as part of the consolidated line item improvement process. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), an analysis of the issue of no significant hazards consideration is presented below: Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated The revised 10 CFR 50.44 no longer defines a design-basis loss-of-coolant accident
(LOCA)hydrogen release, and eliminates requirements for hydrogen control systems to mitigate such a release. The installation of hydrogen recombiners and/or vent and purge systems required by 10 CFR 50.44(b)(3) was intended to address the limited quantity and rate of hydrogen generation that was postulated from a design-basis LOCA. The Commission has found that this hydrogen release is not risk-significant because the design-basis LOCA hydrogen release does not contribute to the conditional probability of a large release up to approximately 24 hours after the onset of core damage. In addition, these systems were ineffective at mitigating hydrogen releases from risk-significant accident sequences that could threaten containment integrity. With the elimination of the design-basis LOCA hydrogen release, hydrogen [and oxygen] monitors are no longer required to mitigate design-basis accidents and, therefore, the hydrogen monitors do not meet the definition of a safety-related component as defined in 10 CFR 50.2. RG [Regulatory Guide] 1.97 Category 1, is intended for key variables that most directly indicate the accomplishment of a safety function for design-basis accident events. The hydrogen [and oxygen] monitors no longer meet the definition of Category 1 in RG 1.97. As part of the rulemaking to revise 10 CFR 50.44 the Commission found that Category 3, as defined in RG 1.97, is an appropriate categorization for the hydrogen monitors because the monitors are required to diagnose the course of beyond design-basis accidents. [Also, as part of the rulemaking to revise 10 CFR 50.44, the Commission found that Category 2, as defined in RG 1.97, is an appropriate categorization for the oxygen monitors, because the monitors are required to verify the status of the inert containment.] The regulatory requirements for the hydrogen [and oxygen] monitors can be relaxed without degrading the plant emergency response. The emergency response, in this sense, refers to the methodologies used in ascertaining the condition of the reactor core, mitigating the consequences of an accident, assessing and projecting offsite releases of radioactivity, and establishing protective action recommendations to be communicated to offsite authorities. Classification of the hydrogen monitors as Category 3, [classification of the oxygen monitors as Category 2] and removal of the hydrogen [and oxygen] monitors from TS will not prevent an accident management strategy through the use of the SAMGs [severe accident management guidelines], the emergency plan (EP), the emergency operating procedures (EOP), and site survey monitoring that support modification of emergency plan protective action recommendations (PARs). Therefore, the elimination of the hydrogen recombiner requirements and relaxation of the hydrogen [and oxygen] monitor requirements, including removal of these requirements from TS, does not involve a significant increase in the probability or the consequences of any accident previously evaluated. Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident From Any Previously Evaluated The elimination of the hydrogen recombiner requirements and relaxation of the hydrogen [and oxygen] monitor requirements, including removal of these requirements from TS, will not result in any failure mode not previously analyzed. The hydrogen recombiner and hydrogen [and oxygen] monitor equipment was intended to mitigate a design-basis hydrogen release. The hydrogen recombiner and hydrogen [and oxygen] monitor equipment are not considered accident precursors, nor does their existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radionuclides within the containment building. Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated. Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety The elimination of the hydrogen recombiner requirements and relaxation of the hydrogen [and oxygen] monitor requirements, including removal of these requirements from TS, in light of existing plant equipment, instrumentation, procedures, and programs that provide effective mitigation of and recovery from reactor accidents, results in a neutral impact to the margin of safety. The installation of hydrogen recombiners and/or vent and purge systems required by 10 CFR 50.44(b)(3) was intended to address the limited quantity and rate of hydrogen generation that was postulated from a design-basis LOCA. The Commission has found that this hydrogen release is not risk-significant because the design-basis LOCA hydrogen release does not contribute to the conditional probability of a large release up to approximately 24 hours after the onset of core damage. Category 3 hydrogen monitors are adequate to provide rapid assessment of current reactor core conditions and the direction of degradation while effectively responding to the event in order to mitigate the consequences of the accident. The intent of the requirements established as a result of the TMI [Three-Mile Island], Unit 2 accident can be adequately met without reliance on safety-related hydrogen monitors. [Category 2 oxygen monitors are adequate to verify the status of an inerted containment.] Therefore, this change does not involve a significant reduction in the margin of safety. The intent of the requirements established as a result of the TMI, Unit 2 accident can be adequately met without reliance on safety-related oxygen monitors.] Removal of hydrogen [and oxygen] monitoring from TS will not result in a significant reduction in their functionality, reliability, and availability. Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* M.S. Ross, Attorney, Florida Power & Light, P.O. Box 14000, Juno Beach, Florida 33408-0420. *NRC Branch Chief:* Thomas H. Boyce. Indiana Michigan Power Company, Docket Nos. 50-315 and 50-316, Donald C. Cook Nuclear Plant, Units 1 and 2, Berrien County, Michigan *Date of amendment request:* June 13, 2007. *Description of amendment request:* The proposed amendment would revise Technical Specifications
(TS)5.5.9, “Ventilation Filter Testing Program (VFTP),” to impose lower (i.e., more restrictive) limits on the maximum pressure drop across the combined high efficiency particulate air filters and charcoal adsorbers in three safety-related ventilation systems. These ventilation systems are the Control Room Emergency Ventilation System, the Engineered Safety Features Ventilation System, and the Fuel-Handling Area Exhaust Ventilation System. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Does the proposed change involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated? *Response:* No. The proposed change consists of establishing more restrictive criteria in the Technical Specification
(TS)for the maximum pressure drop across high efficiency particulate air filters
(HEPA)and charcoal adsorbers in safety-related ventilation systems. These TS criteria are used to determine the acceptability of periodic test results. These criteria are not accident initiators. Therefore, there will be no effect on the probability of an accident. The safety-related ventilation systems involved in the proposed change function to mitigate the consequences of accidents. The proposed change will provide increased assurance that the HEPA filters and charcoal adsorbers in these systems will be capable of performing their safety function of reducing the release of radioactive material resulting from evaluated accidents. Therefore, there will be no increase in the consequences of those accidents. Therefore, the proposed change will not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed change consists of establishing more restrictive acceptance criteria for existing TS[-]required tests. The proposed change does not affect the manner in which the tests are performed. The proposed change will not result in any new or different methods or modes of operation of existing structures, systems, or components. The proposed change will not introduce any new structures, system, or components. Therefore, the proposed change will not create the possibility of a new or different kind of accident from any previously evaluated. 3. Does the proposed change involve a significant reduction in a margin of safety? *Response:* No. The margin of safety associated with the proposed change is the capability of the applicable safety-related ventilation systems to prevent radiation exposures from exceeding acceptable limits due to the release of radioactive material caused by an evaluated accident. The proposed change will provide increased assurance that the HEPA filters and charcoal adsorbers in these systems will be capable of performing this function. Therefore, the proposed change will not involve a significant reduction in the margin of safety. The Nuclear Regulatory Commission
(NRC)staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration. *Attorney for licensee:* Kimberly Harshaw, Esquire, One Cook Place, Bridgman, MI 49106. *NRC Acting Branch Chief:* Travis Tate. Indiana Michigan Power Company, Docket Nos. 50-315 and 50-316, Donald C. Cook Nuclear Plant, Units 1 and 2, Berrien County, Michigan *Date of amendment request:* June 27, 2007. *Description of amendment request:* The proposed amendment would revise Technical Specifications
(TS)Surveillance Requirements 3.8.1.2, 8, 12, 13, 16, and 19, changing the steady state frequency of all diesel generators
(DGs)from the current allowed frequency range of 59.4-61.2 Hz, to 59.4-60.5 Hz (i.e., a decrease of the upper limit, resulting in narrowing of the current range). The licensee stated that the current frequency range is nonconservative and could result in undesirable effects such as centrifugal charging pump motor brake horsepower exceeding its nameplate maximum horsepower, and overloading the DGs. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee provided its analysis of the issue of no significant hazards consideration. The NRC staff has performed its own analysis, which is presented below:
(1)Does the proposed change involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated? *Response:* No. The more restrictive steady state frequency range ensures that the diesel generators and equipment being powered by the diesel generators will function as designed to mitigate an accident as described in the Update Final Safety Analysis Report (UFSAR). The DGs and the equipment they power are part of the systems required to mitigate accidents; no accident analyzed in the UFSAR is initiated by mitigation equipment. Therefore, the proposed change to the allowed frequency range of the DGs will not have any impact on the probability of an accident previously evaluated. Furthermore, other than narrowing the allowed frequency range of the DGs, there is no other design or operational change. Therefore, the proposed change does not increase the probability of malfunction of the DGs or the equipment they power. Narrowing of the DG maximum steady state frequency limit will ensure that the DGs and equipment powered by the DGs will perform as originally designed and analyzed to mitigate the consequences of any accident described in the UFSAR. Therefore, the proposed change does not involve a significant increase in the consequences of an accident previously evaluated in the UFSAR.
(2)Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. There is no design change associated with the proposed amendment. Making an existing DG requirement more restrictive alone will not alter plant configuration because no new or different type of equipment will be installed, and because no methods governing plant operation will be changed. The proposed change to allowed frequency range will not have any effect on the assumptions of accident scenarios previously made in the UFSAR. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
(3)Does the proposed change involve a significant reduction in a margin of safety? *Response:* No. Despite the proposed change to the DG maximum steady state frequency limit, the DGs and equipment powered by the DGs will continue to perform as originally designed, and originally analyzed in the UFSAR. There is no associated change to the methods and assumptions used to analyze DG performance. The proposed change will maintain the required function of the DGs and the equipment powered by the DGs to ensure that operation of structures, systems, or components is as currently set forth in the UFSAR. Therefore, the proposed change does not involve a significant reduction in the margin of safety. The Nuclear Regulatory Commission
(NRC)staff has reviewed the licensee's analysis and, based on its own analysis, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the proposed amendment involves no significant hazards consideration. *Attorney for licensee:* Kimberly Harshaw, Esquire, One Cook Place, Bridgman, MI 49106. *NRC Acting Branch Chief:* Travis L. Tate. Nuclear Management Company, LLC, Docket No. 50-263, Monticello Nuclear Generating Plant, Wright County, Minnesota *Date of amendment request:* July 9, 2007. *Description of amendment request:* The proposed amendment would revise the Technical Specifications (TS), an NRC-controlled document, by moving the Table of Contents
(TOC)out of the TS and making the TOC into a licensee-controlled document. *Basis for proposed no significant hazards consideration determination:* As required by Title 10 of the Code of Federal Regulations (10 CFR) Part 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration
(NSHC)which is reproduced below: 1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated? No. The proposed change is administrative and affects control of a document, the TOC, listing the specifications in the plant TS. Transferring control from the NRC to NMC (the licensee) does not affect the operation, physical configuration, or function of plant equipment or systems. It does not impact the initiators or assumptions of analyzed events, nor does it impact the mitigation of accidents or transient events. The change has no impact on, and hence cannot increase, the probability or consequences of an accident previously evaluated. 2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated? No. The proposed change is administrative and does not alter the plant configuration, require installation of new equipment, alter assumptions about previously analyzed accidents, or impact the operation or function of plant equipment or systems. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated. 3. Does the proposed amendment involve a significant reduction in a margin of safety? No. The proposed change is administrative. The TOC is not required by regulation to be in the TS. [Its] removal does not impact any safety assumptions or have the potential to reduce a margin of safety as described in the TS Bases. The change involves a transfer of control of the TOC from the NRC to NMC. No change in the technical content of the TS [ ] is involved. Consequently, transfer from the NRC to NMC has no impact on the margin of safety, and hence cannot involve a significant reduction in the margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this analysis, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the proposed amendment involves no significant hazards consideration. *Attorney for licensee:* Jonathan Rogoff, Esquire, Vice President, Counsel & Secretary, Nuclear Management Company, LLC, 700 First Street, Hudson, WI 54016. *NRC Acting Branch Chief:* Travis L. Tate. PPL Susquehanna, LLC, Docket No. 50-388, Susquehanna Steam Electric Station, Unit 2 (SSES 2), Luzerne County, Pennsylvania. *Date of amendment request:* March 2, 2007. *Description of amendment request:* The proposed amendment would add an ACTIONS Note 3 to the SSES 2 Technical Specification 3.8.1, “AC Sources—Operating,” to allow a Unit 1 4160 volt subsystem to be de-energized and removed from service to perform bus maintenance. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. This change does not involve any physical change to structures, systems, or components
(SSCs)and does not alter the method of operation of any SSCs. The current assumptions in the safety analysis regarding accident initiators and mitigation of accidents are unaffected by these changes. No SSC failure modes or mechanisms are being introduced, and the likelihood of previously analyzed failures remains unchanged. Operation in accordance with the proposed new ACTIONS Note 3 in Unit 2 Technical Specification 3.8.1 ensures that the AC [alternating current] distribution system and supported equipment remain capable of performing their functions as described in the Final Safety Analysis Report (FSAR). There are no changes to any accident initiators or to the mitigating capability of safety-related equipment supported by the Class 1E Electrical AC system. The protection provided by these safety-related systems will continue to be provided as assumed by the safety analysis. Therefore, this proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed change does not involve a physical alteration of any plant equipment. No new equipment is being introduced, and installed equipment is not being operated in a new or different manner. There are no setpoints, at which protective or mitigative actions are initiated, affected by this change. This change does not alter the manner in which equipment operation is initiated, nor will the function demands on credited equipment be changed. No alterations in the procedures that ensure the plant remains within analyzed limits are being proposed, and no changes are being made to the procedures relied upon to respond to an off-normal event as described in the FSAR [final safety analysis report]. As such, no new failure modes are being introduced. The change does not alter assumptions made in the safety analysis and licensing basis. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated. 3. Do the proposed changes involve a significant reduction in a margin of safety? *Response:* No. The margin of safety is established through equipment design, operating parameters, and the setpoints at which automatic actions are initiated. The proposed change is acceptable because the new ACTIONS Note 3 has been established to be consistent with the existing completion times for declaring required equipment inoperable that has no offsite power or DG [diesel generator] power available. Therefore, the plant response to analyzed events is not affected by this change and will continue to provide the margin of safety assumed by the safety analysis. Therefore, the proposed change does not involve a significant reduction in a margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Bryan A. Snapp, Esquire, Assoc. General Counsel, PPL Services Corporation, 2 North Ninth St., GENTW3, Allentown, PA 18101-1179. *NRC Branch Chief:* Mark G. Kowal. PSEG Nuclear LLC, Docket No. 50-354, Hope Creek Generating Station, Salem County, New Jersey *Date of amendment request:* July 26, 2007 *Description of amendment request:* The proposed amendment would remove values for turbine first stage pressure equivalent to P <sup>bypass</sup> from the Technical Specifications. P <sup>bypass</sup> is the reactor power level below which the turbine stop valve closure and the turbine control valve fast closure reactor protection system trip functions and the end-of-cycle recirculation pump trip are bypassed automatically. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. The proposed removal of values for turbine first stage pressure associated with P <sup>bypass</sup> from the Technical Specifications does not alter the requirements for component operability or surveillance currently in the Technical Specifications. The proposed change will have no impact on any safety related structures, systems or components. The probability of occurrence of a previously evaluated accident is not increased because this change does not introduce any new potential accident initiating conditions. The consequences of accidents previously evaluated in the UFSAR [Updated Final Safety Analysis Report] are not affected because the ability of the components to perform their required function is not affected. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed change is administrative in nature, and does not result in physical alterations or changes in the method by which any safety related system performs its intended function. The proposed change does not affect any safety analysis assumptions. The proposed change does not create any new accident initiators or involve an activity that could be an initiator of an accident of a different type. All components will continue to be tested to the same requirements as defined in the Technical Specification Surveillance Requirements. The proposed revision does not make changes in any method of testing or how any safety related system performs its safety functions. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated. 3. Does the proposed amendment involve a significant reduction in a margin of safety? *Response:* No. The proposed change to remove values for turbine first stage pressure associated with P <sup>bypass</sup> from the Technical Specifications does not alter the Technical Specification requirements for reactor protection system operability. The turbine first stage pressure setpoint will be controlled in accordance with plant procedures and will be verified during post-installation testing. The proposed change will not affect the current Technical Specification requirements or the components to which they apply. Therefore, the proposed change does not involve a significant reduction in a margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Mr. Jeffrie J. Keenan, Esquire, PSEG Nuclear—N21, P.O. Box 236, Hancocks Bridge, NJ 08038. *NRC Branch Chief:* Harold K. Chernoff. STP Nuclear Operating Company, Docket Nos. 50-498 and 50-499, South Texas Project, Units 1 and 2, Matagorda County, Texas *Date of amendment request:* June 26, 2007. *Description of amendment request:* The proposed amendment would modify the Technical Specifications
(TSs)to establish more effective and appropriate action, surveillance, and administrative requirements related to ensuring the habitability of the control room envelope
(CRE)in accordance with Nuclear Regulatory Commission (NRC)-approved TS Task Force
(TSTF)Standard Technical Specification change traveler TSTF-448, Revision 3, “Control Room Habitability.” Specifically, the proposed amendment would modify TS 3.7.7, Control Room Makeup and Cleanup Filtration System (CRMCFS) and TS Section 6.8, “Administrative Controls-Procedures, Programs, and Manuals.” The NRC staff issued a “Notice of Availability of Technical Specification Improvement to Modify Requirements Regarding Control Room Envelope Habitability Using the Consolidated Line Item Improvement Process” associated with TSTF-448, Revision 3, in the **Federal Register** on January 17, 2007 (72 FR 2022). The notice included a model safety evaluation, a model no significant hazards consideration
(NSHC)determination, and a model license amendment request. In its application dated June 26, 2007, the licensee affirmed the applicability of the model NSHC determination which is presented below. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), an analysis of the issue of NSHC adopted by the licensee is presented below: Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated The proposed change does not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, or configuration of the facility. The proposed change does not alter or prevent the ability of structures, systems, and components
(SSCs)to perform their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change revises the TS for the CRE emergency ventilation system, which is a mitigation system designed to minimize unfiltered air leakage into the CRE and to filter the CRE atmosphere to protect the CRE occupants in the event of accidents previously analyzed. An important part of the CRE emergency ventilation system is the CRE boundary. The CRE emergency ventilation system is not an initiator or precursor to any accident previously evaluated. Therefore, the probability of any accident previously evaluated is not increased. Performing tests to verify the operability of the CRE boundary and implementing a program to assess and maintain CRE habitability ensure that the CRE emergency ventilation system is capable of adequately mitigating radiological consequences to CRE occupants during accident conditions, and that the CRE emergency ventilation system will perform as assumed in the consequence analyses of design basis accidents. Thus, the consequences of any accident previously evaluated are not increased. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident from any Accident Previously Evaluated The proposed change does not impact the accident analysis. The proposed change does not alter the required mitigation capability of the CRE emergency ventilation system, or its functioning during accident conditions as assumed in the licensing basis analyses of design basis accident radiological consequences to CRE occupants. No new or different accidents result from performing the new surveillance or following the new program. The proposed change does not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or a significant change in the methods governing normal plant operation. The proposed change does not alter any safety analysis assumptions and is consistent with current plant operating practice. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated. Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The proposed change does not affect safety analysis acceptance criteria. The proposed change will not result in plant operation in a configuration outside the design basis for an unacceptable period of time without compensatory measures. The proposed change does not adversely affect systems that respond to safely shut down the plant and to maintain the plant in a safe shutdown condition. Therefore, the proposed change does not involve a significant reduction in a margin of safety. The NRC staff has reviewed the analysis adopted by the licensee and, based on this review, it appears that the standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves NSHC. *Attorney for licensee:* A. H. Gutterman, Esq., Morgan, Lewis & Bockius, 1111 Pennsylvania Avenue, NW., Washington, DC 20004. *NRC Branch Chief:* Thomas G. Hiltz. TXU Generation Company LP, Docket Nos. 50-445 and 50-446, Comanche Peak Steam Electric Station, Units 1 and 2, Somervell County, Texas. *Date of amendment request:* April 10, 2007. *Brief description of amendments:* The proposed amendments would revise Technical Specifications
(TS)3.1, “Reactivity Control Systems,” TS 3.2, “Power Distribution Limits,” TS 3.3, “Instrumentation,” and TS 5.6.5b, “Core Operating Limits Report (COLR).” The requested change proposes to incorporate standard Westinghouse-developed and NRC-approved analytical methods into the lists of methodologies used to establish the core operating limits. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. No physical plant changes or changes in manner in which the plant will be operated as a result of the methodology changes. The proposed changes do not impact the condition or performance of any plant structure, system or component. The core operating limits are established to support Technical Specifications 3.1, 3.2, 3.3, and 3.4. The core operating limits ensure that fuel design limits are not exceeded during any conditions of normal operation or in the event of any Anticipated Operational Occurrence (AOO). The methods used to establish the core operating limits for each operating cycle are based on methods previously found acceptable by the NRC and listed in Technical Specifications section 5.6.5.b. Application of these NRC-approved methods will continue to ensure that acceptable operating limits are established to protect the fuel cladding integrity during normal operation and AOOs. The requested Technical Specification changes, including those changes proposed to conform with the NRC-approved analysis methodologies, do not involve any plant modifications or operational changes that could affect system reliability, performance, or possibility of operator error. The requested changes do not affect any postulated accident precursors, does not affect any accident mitigation systems, and does not introduce any new accident initiation mechanisms. As a result, the proposed changes to the CPSES [Comanche Peak Steam Electric Station] Technical Specifications do not involve any increase in the probability or the consequences of any accident or malfunction of equipment important to safety previously evaluated since neither accident probabilities nor consequences are being affected by this proposed change. 2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. There are no physical changes being made to the plant. No new modes of plant operation are being introduced. The parameters assumed in the analyses are within the design limits of the existing plant equipment. All plant systems will perform as designed during the response to a potential accident. Therefore, the proposed change to the CPSES Technical Specifications does not create the possibility of a new or different kind of accident or malfunction of equipment important to safety from any accident previously evaluated. 3. Do the proposed changes involve a significant reduction in a margin of safety? *Response:* No. The NRC-approved accident analysis methodologies include restrictions on the choice of inputs, the degree of conservatism inherent in the calculations, and specified event acceptance criteria. Analyses performed in accordance with these methodologies will not result in adverse effects on the regulated margin of safety. Similarly, the use of axial power distribution controls based on the relaxed axial offset control strategy is a time-proven and NRC-approved method. The method is consistent with the accident analyses assumptions as described in the list of NRC-approved methodologies proposed to be used to establish the core operating limits. Finally, the proposed changes to allow operation with the BEACON [Best Estimate Analyzer for Core Operation Nuclear] power distribution monitoring tool provide additional information to the reactor operators on the state of the reactor core. Again, the use of the BEACON tool and the methodology used to develop the inputs to the tool are consistent with and controlled by the NRC-approved methodologies used to establish the core operating limits. As such, the margin of safety assumed in the plant safety analysis is not adversely affected by the proposed changes. Based on the above evaluations, TXU Power concludes that the proposed amendment(s) present no significant hazards consideration under the standards set forth in 10 CFR 50.92(c) and, accordingly, a finding of no significant hazards consideration is justified. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* George L. Edgar, Esq., Morgan, Lewis and Bockius, 1800 M Street, NW., Washington, DC 20036. *NRC Branch Chief:* Thomas G. Hiltz. TXU Generation Company LP, Docket Nos. 50-445 and 50-446, Comanche Peak Steam Electric Station, Units 1 and 2, Somervell County, Texas *Date of amendment request:* May 22, 2007. *Brief description of amendments:* The proposed amendment would revise the Technical Requirements Surveillance
(TRS)13.3.33.2, Cycling Frequency for the Turbine Stop and Control Valves. The proposed change would increase the frequency interval for the turbine stop and control valves testing from 12 to 26 weeks. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. The proposed change will increase the frequency interval for testing the high pressure
(HP)and low pressure
(LP)turbine stop and control valves to 26 weeks. This test requires the movement of the HP and LP turbine valves through one complete cycle once every 26 weeks. The test verifies freedom of movement of the valve components and is beneficial in early detection of problems with valve operation. [The test ensures that all turbine steam inlet valves are capable of closing to protect the turbine from excessive overspeed, which could generate potentially damaging missiles.] Siemens, the turbine manufacturer for Comanche Peak Steam Electric Station (CPSES), has evaluated the change in the probability of generating external/high-trajectory turbine missiles resulting from a hypothetical LP turbine disk failure which could adversely affect safety-related SSCs [structures, systems, and components] due to the change in the surveillance interval weeks using a previously approved missile probability analysis methodology. The results of the analysis show the new valve test interval of 26 weeks with a turbine inspection interval of 100,000 hours is safe and acceptable as the probability of occurrence of a turbine missile per turbine year is less than the Nuclear Regulatory Commission
(NRC)limit of 1E-4 per 8760 hours (turbine year) or 11.42E-4 at 100,000 hours (Reference 7.4 [of the licensee's May 22, 2007, application]). Therefore, the risk of the loss of an essential system from a single event is acceptable. Since the probability of generating external, high-trajectory turbine missiles resulting from a hypothetical LP turbine disc failure which could adversely affect safety related SSCs due to the increased valve test interval from 12 to 26 weeks is less than the NRC limit, it is acceptable to increase the turbine test interval in TRS 13.3.33.2. The test interval change would increase overall plant capacity factor and result in a net improvement in plant safety by reducing the likelihood of plant trips and stress and wear on plant components. In addition, the increased test intervals would reduce the likely cause of a plant transient and unnecessary burden on personnel resources which is consistent with Generic Letter 93-005 (Reference 7.7 [of the licensee's May 22, 2007, application]) and NUREG-1366 (Reference 7.2 [of the licensee's May 22, 2007, application]). Based upon Siemens' analysis and the updated stop and control valves failure probability, it is concluded that the implementation of this change in testing frequency will not increase the probability or consequences of an accident previously evaluated in the UFSAR. The proposed change does not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, or configuration of the facility or the manner in which the plant is operated and maintained. The proposed change does not alter or prevent the ability of structures, systems, and components
(SSCs)from performing their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change does not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. The proposed change is consistent with safety analysis assumptions and resultant consequences. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed change will reduce the frequency for testing the high pressure
(HP)and low pressure
(LP)turbine stop and control valves. Turbine overspeed is limited by rapid closure of the turbine stop and control valves. Turbine overspeed can result in the occurrence of turbine missiles from a burst type failure of the low pressure blades or disks. The damage from turbine missiles has been previously evaluated in the UFSAR [updated final safety analysis report] (Reference 7.3 [of the licensee's May 22, 2007, application]). The proposed activity does not introduce the possibility of a new accident because no new failure modes are introduced. Turbine overspeed with the resulting turbine missiles is the only accident potentially affected by failure of the turbine stop and control valves. The turbine missile analysis is not altered by reducing the frequency of high and low pressure stop and control valve testing. Reducing the frequency of turbine valve testing from every 12 weeks to every 26 weeks does not result in a significant change in the failure rate, nor does it affect the failure modes for the turbine valves. There are no hardware changes nor are there any changes in the method by which any safety-related plant system performs its safety function. This amendment will not affect the normal method of plant operation or change any operating parameters. No performance requirements or response time limits will be affected. No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures are introduced as a result of this amendment. There will be no adverse effect or challenges imposed on any safety-related system as a result of this amendment. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated. 3. Do the proposed changes involve a significant reduction in a margin of safety? *Response:* No. The proposed change does not involve a significant reduction in a margin of safety since the conclusions of the safety analyses in the CPSES FSAR [final safety analysis report] (Reference 7.3 [of the licensee's May 22, 2007, application]) are essentially unchanged and NRC safety limits are not exceeded. Therefore the proposed change does not involve a reduction in a margin of safety. Based on the above evaluations, TXU Power concludes that the proposed amendment(s) present no significant hazards under the standards set forth in 10 CFR 50.92(c) and, accordingly, a finding of “no significant hazards consideration” is justified. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* George L. Edgar, Esq., Morgan, Lewis and Bockius, 1800 M Street, NW., Washington, DC 20036. *NRC Branch Chief:* Thomas G. Hiltz. Virginia Electric and Power Company, Docket Nos. 50-280 and 50-281, Surry Power Station, Unit Nos. 1 and 2, Surry County, Virginia *Date of amendment request:* July 13, 2007. *Description of amendment request:* The proposed amendment revises the Technical Specifications
(TSs)requirements related to main control room and emergency switchgear room envelope habitability. These changes are consistent with the Nuclear Regulatory Commission (NRC)-approved Revision 3 of Technical Specification Task Force
(TSTF)Standard Technical Specifications
(STS)Change Traveler TSTF-448, “Control Room Habitability.” *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), an analysis of the issue of no significant hazards consideration is presented below: 1. Involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed changes consist of TS wording, format and conforming changes to facilitate incorporation of TSTF-448 [72 FR 2022] into the Surry custom TS and for consistency with NUREG-1431, Revision 3, to the extent practical. The proposed changes are administrative in nature and, as such, do not impact the condition or performance of any plant structure, system or component. The proposed changes do not affect the initiators of any previously analyzed event or the assumed mitigation of accident or transient events. As a result, the proposed administrative changes to the Surry TS do not involve any increase in the probability or the consequences of any accident or malfunction of equipment important to safety previously evaluated since neither accident probabilities or consequences are being affected by the proposed changes. 2. Create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed changes are administrative in nature, and therefore do not involve any changes in station operation or physical modifications to the plant. In addition, no changes are being made in the methods used to respond to plant transients that have been previously analyzed. No changes are being made to plant parameters within which the plant is normally operated or in the setpoints, which initiate protective or mitigative actions, and no new failure modes are being introduced. Therefore, the proposed changes to the Surry Technical Specifications do not create the possibility of a new or different kind of accident or malfunction of equipment important to safety from any previously evaluated. 3. Involve a significant reduction in a margin of safety. The proposed changes consist of TS wording, format and conforming changes to facilitate incorporation of TSTF-448 into the Surry custom TS and for consistency with NUREG-1431, Revision 3. The proposed changes are administrative in nature, and do not impact station operation or any plant structure, system or component that is relied upon for accident mitigation. Furthermore, the margin of safety assumed in the plant safety analysis is not affected in any way by the proposed changes. Therefore, the proposed administrative changes to the Surry Technical Specifications do not involve a reduction in a margin of safety. The NRC staff has reviewed the analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Lillian M. Cuoco, Esq., Senior Counsel, Dominion Resources Services, Inc., Millstone Power Station, Building 475, 5th Floor, Rope Ferry Road, Rt. 156, Waterford, Connecticut 06385. *NRC Branch Chief:* Evangelos C. Marinos. Previously Published Notices of Consideration of Issuance of Amendments to Facility Operating Licenses, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration. For details, see the individual notice in the **Federal Register** on the day and page cited. This notice does not extend the notice period of the original notice. Exelon Generation Company, LLC, and PSEG Nuclear LLC, Docket Nos. 50-277 and 50-278, Peach Bottom Atomic Power Station, Units 2 and 3, York and Lancaster Counties, Pennsylvania *Date of amendment request:* March 6, 2007. *Brief description of amendment request:* The proposed amendment would modify the main steam isolation valve
(MSIV)leakage Technical Specification
(TS)Surveillance Requirement
(SR)3.6.1.3.14 to establish a total leakage rate limit for the sum of the four main steam lines. *Date of publication of individual notice in* Federal Register : July 24, 2007. *Expiration date of individual notice:* September 22, 2007. Tennessee Valley Authority, Docket No. 50-259, Browns Ferry Nuclear Plant, Unit 1, Limestone County, Alabama *Date of application for amendments:* June 25, as supplemented July 3, 2007. *Description of amendments request:* The proposed amendment would allow deletion of License Condition 2.(G)2 regarding the performance of power uprate large transient testing. *Date of publication of individual notice in the* Federal Register : July 13, 2007 (72 FR 38627). *Expiration date of individual notice:* August 14, 2007 (Public comments) and September 11, 2007 (Hearing requests). Notice of Issuance of Amendments to Facility Operating Licenses During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment. Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing in connection with these actions was published in the **Federal Register** as indicated. Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated. For further details with respect to the action see
(1)the applications for amendment,
(2)the amendment, and
(3)the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC web site, *http://www.nrc.gov/reading-rm/adams.html.* If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1
(800)397-4209,
(301)415-4737 or by e-mail to *pdr@nrc.gov.* AmerGen Energy Company, LLC, Docket No. 50-219, Oyster Creek Nuclear Generating Station, Ocean County, New Jersey *Date of application for amendment:* September 28, 2006. *Brief description of amendment:* The amendment revises the Oyster Creek Technical Specification
(TS)definition of Channel Calibration, Channel Check, and Channel Test consistent with NUREG-1433, Revision 3.0, “Standard Technical Specifications General Electric Plants, BWR/4 Specifications,” dated June 2004. These definitions apply to all instrument functions in the TSs, including Reactor Protection System instruments. *Date of Issuance:* July 27, 2007. *Effective date:* As of the date of Issuance to be implemented within 60 days. *Amendment No.:* 263. *Facility Operating License No. DPR-16:* The amendment revised the TSs. *Date of initial notice in* Federal Register : November 21, 2006 (71 FR 67392). The Commission's related evaluation of this amendment is contained in a Safety Evaluation dated July 27, 2007. *No significant hazards consideration comments received:* No. Arizona Public Service Company, *et al.* , Docket Nos. STN 50-528, STN 50-529, and STN 50-530, Palo Verde Nuclear Generating Station, Units Nos. 1, 2, and 3, Maricopa County, Arizona *Date of application for amendments:* July 20, 2006, as supplemented by letter dated May 3, 2007. *Brief description of amendments:* The amendments revised Technical Specifications
(TS)3.1.6, “Shutdown Control Element Assembly
(CEA)Insertion Limits,” to modify the TS Limiting Condition for Operation
(LCO)3.1.6 and Surveillance Requirements
(SRs)3.1.6.1 to require shutdown CEAs to be withdrawn to ≥147.75 inches, instead of the current limit of ≥144.75 inches. *Date of issuance:* July 25, 2007. *Effective date:* As of the date of issuance and shall be implemented within 90 days from the date of issuance. *Amendment Nos.:* Unit 1-168, Unit 2-168, Unit 3-168. *Facility Operating License Nos. NPF-41, NPF-51, and NPF-74:* The amendments revised the Operating License and Technical Specifications. *Date of initial notice in* Federal Register : September 26, 2006 (71 FR 56191). The supplement dated May 3, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the **Federal Register** . The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 25, 2007. *No significant hazards consideration comments received:* No. Carolina Power & Light Company, Docket No. 50-261, H. B. Robinson Steam Electric Plant, Unit No. 2, Darlington County, South Carolina *Date of application for amendment:* February 2, 2007. *Brief description of amendment:* This amendment deletes the technical specification
(TS)requirements related to containment hydrogen monitors and supports implementation of the revisions of 10 CFR 50.44, Combustible Gas Control for Nuclear Power Reactors, that became effective on October 16, 2003. This is a Consolidated Line Item Improvement Program modification, which adopts TS Task Force
(TSTF)Standard TS Change Traveler, TSTF-447, Elimination of Hydrogen Recombiners and Change to Hydrogen and Oxygen Monitors. *Date of issuance:* July 16, 2007. *Effective date:* As of the date of issuance and shall be implemented within 60 days. *Amendment No.:* 216. *Renewed Facility Operating License No. DPR-23:* Amendment revises the technical specifications. *Date of initial notice in* Federal Register : April 24, 2007 (72 FR 20378). The Commission's related evaluation of the amendment is contained in a safety evaluation dated March 21, 2007. *No significant hazards consideration comments received:* No. Carolina Power & Light Company, *et al.* , Docket No. 50-400, Shearon Harris Nuclear Power Plant, Unit 1, Wake and Chatham Counties, North Carolina *Date of application for amendment:* December 20, 2006. *Brief description of amendment:* This amendment revises Technical Specification
(TS)6.12, “High Radiation Area.” The amendment aligns the requirements contained in the TS with the revised Regulatory Guide 8.38, Revision 1, “Control of Access to High and Very High Radiation Areas in Nuclear Power Plants.” Specifically, the changes include differentiating dose rates associated with high and very high radiation areas, adding requirements for groups entering high radiation areas, and clarifying the communication requirements for workers in high radiation areas. *Date of issuance:* July 23, 2007. *Effective date:* This amendment is effective as of the date of issuance and shall be implemented within 60 days of issuance. *Amendment No.:* 125. Facility Operating License No. NPF-63: Amendment revises the TSs. *Date of initial notice in* Federal Register : February 27, 2007 (72 FR 8802). The Commission's related evaluation of the amendment is contained in a safety evaluation dated July 23, 2007. *No significant hazards consideration comments received:* No. Duke Power Company LLC, Docket Nos. 50-369 and 50-370, McGuire Nuclear Station, Units 1 and 2, Mecklenburg County, North Carolina *Date of application for amendments:* July 31, 2006 as supplemented May 24, 2007. *Brief description of amendments:* The amendments revised TS 3.6.3, “Containment Isolation Valves,” by removing the allowance to open the upper containment purge isolation valves in the applicable modes of operation when containment integrity is required by the TSs. In addition, the amendments deleted TS 3.3.6, “Containment Purge and Exhaust Isolation Instrumentation”. The change made the TSs requirements consistent for both the upper and lower containment purge isolation valves. *Date of issuance:* July 26, 2007. *Effective date:* As of the date of issuance and shall be implemented within 30 days from the date of issuance. *Amendment Nos.:* 243, 224. *Renewed Facility Operating License Nos. NPF-9 and NPF-17:* Amendments revised the licenses and the technical specifications. *Date of initial notice in* Federal Register : December 5, 2006 (71 FR 70558) The supplement dated May 24, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination. The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 26, 2007. *No significant hazards consideration comments received:* No. FirstEnergy Nuclear Operating Company, *et al.* , Docket No. 50-440, Perry Nuclear Power Plant, Unit No. 1, Lake County, Ohio *Date of application for amendment:* February 10, 2006, as supplemented by letter dated March 8, 2007. *Brief description of amendment:* The changes would clarify technical specifications
(TSs)for the Perry Nuclear Power Plant
(PNPP)by revising the TS action requirements that must be followed when one or more annulus gas treatment system initiation channels are inoperable. The clarifying changes will make the PNPP TSs consistent with Nuclear Regulatory Commission
(NRC)staff precedents for containment filtering safety systems that operate continuously in the protection mode of operation. *Date of issuance:* July 30, 2007. *Effective date:* As of the date of issuance and shall be implemented within 120 days. *Amendment No.:* 147. *Facility Operating License No. NPF-58:* This amendment revised the Technical Specifications and License. *Date of initial notice in* Federal Register : May 23, 2006 (71 FR 29678). The March 8, 2007, supplement contained clarifying information and did not change the NRC staff's initial proposed finding of no significant hazards consideration. The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 30, 2007. *No significant hazards consideration comments received:* No. Florida Power and Light Company, Docket Nos. 50-250 and 50-251, Turkey Point Plant, Units 3 and 4, Miami-Dade County, Florida *Date of application for amendments:* January 27, 2006, as supplemented November 28, 2006, April 30, 2007, and July 17, 2007. *Brief description of amendments:* These amendments revise Technical Specifications
(TS)Section 3/4 9.1, “Boron Concentration,” Section 3/4 9.14, “Spent Fuel Storage,” and Section 3/4 5.5.1, “Fuel Storage Criticality” to allow use of Metamic rack inserts, and administrative controls that require mixing higher reactivity fuel with lower-reactivity fuel. *Date of issuance:* July 17, 2007. *Effective date:* As of the date of issuance and shall be implemented prior to the end of Unit 4 Cycle 24. *Amendment Nos:* 234 and 229. *Renewed Facility Operating License Nos. DPR-31 and DPR-41:* Amendments revised the TS. *Date of initial notice in* Federal Register : May 9, 2006 (71 FR 26999). The supplements dated November 28, 2006, April 30, 2007, and July 17, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the **Federal Register** on May 9, 2006. The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 17, 2007. *No significant hazards consideration comments received:* No. Nuclear Management Company, Docket No. 50-263, Monticello Nuclear Generating Plant (MNGP), Wright County, Minnesota *Date of application for amendment:* January 29, 2007, as supplemented on June 5, 2007. *Brief description of amendment:* The amendment revised Table 3.3.5.1-1 of the Technical Specifications for three low-pressure coolant injection loop select logic functions. The surveillance of these three functions was previously required to be performed every 92 days. The amended requirement requires a channel calibration and logic system functional test, respectively, every 24 months. In addition, the allowable values associated with these three functions are changed to match the extended surveillance interval. *Date of issuance:* July 20, 2007. *Effective date:* As of the date of issuance and shall be implemented within 60 days of issuance. *Amendment No:* 151. *Renewed Facility Operating License No. DPR-22:* Amendment revised the Renewed Facility Operating License and Technical Specifications. *Date of initial notice in* Federal Register : March 13, 2007 (72 FR 11391). The supplemental letter dated June 5, 2007, contained clarifying information and did not change the initial no significant hazards consideration determination, and did not expand the scope of the original **Federal Register** notice. The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 20, 2007. *No significant hazards consideration comments received:* No. STP Nuclear Operating Company, Docket Nos. 50-498 and 50-499, South Texas Project, Units 1 and 2, Matagorda County, Texas *Date of amendment request:* February 28, 2006, as supplemented by letters dated April 6 and May 31, 2007, and electronic mail dated July 18, 2007. *Brief description of amendments:* The amendments revised TSs 3/4.8.2.1, “DC [Direct Current] Sources—Operating,” and 3/4.8.2.2, “DC Sources—Shutdown,” and add a new TS 3/4.8.2.3, “Battery Parameters.” The amendments revised allowed outage times for battery chargers as well as battery charger testing criteria, and relocate a number of battery surveillance requirements to a licensee-controlled Battery Monitoring and Maintenance Program. The changes are consistent with Standard TS Change Traveler TSTF-360, Revision 1, “DC Electrical Rewrite.” *Date of issuance:* July 20, 2007. *Effective date:* As of the date of issuance and shall be implemented within 120 days of issuance. *Amendment Nos.:* Unit 1-180; Unit 2-167. *Facility Operating License Nos. NPF-76 and NPF-80:* The amendments revised the Facility Operating Licenses and Technical Specifications. *Date of initial notice in* Federal Register : September 12, 2006 (71 FR 53721). The supplemental letters dated April 6 and May 31, 2007, and electronic mail dated July 18, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the **Federal Register** . The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 20, 2007. *No significant hazards consideration comments received:* No. Dated at Rockville, Maryland, this 2nd day of August 2007. For the Nuclear Regulatory Commission. Catherine Haney, Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. E7-15459 Filed 8-13-07; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses AGENCY: Nuclear Regulatory Commission (NRC). ACTION: Notice of Availability. SUMMARY: NRC is issuing its Final License Renewal Interim Staff Guidance LR-ISG-2006-03 for preparing severe accident mitigation alternatives
(SAMA)analyses. This LR-ISG recommends that applicants for license renewal use the Guidance Document Nuclear Energy Institute 05-01, Revision A, (ADAMS Accession No. ML060530203) when preparing their SAMA analyses. The NRC staff issues LR-ISGs to facilitate timely implementation of the license renewal rule and to review activities associated with a license renewal application. The NRC staff will also incorporate the approved LR-ISG into the next revision of Supplement 1 to Regulatory Guide 4.2, “Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses.” ADDRESSES: The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at *http://www.nrc.gov/reading-rm/adams.html.* Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC Public Document Room
(PDR)reference staff at 1-800-397-4209, 301-415-4737, or by e-mail at *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Mr. Richard L. Emch, Jr., Senior Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone 301-415-1590 or by e-mail at *rle@nrc.gov.* SUPPLEMENTARY INFORMATION: Attachment 1 to this **Federal Register** notice, entitled *Staff Position and Rationale for the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives (SAMA)* Analyses contains the NRC staff's rationale for publishing the Final LR-ISG-2006-03. Attachment 2 to this **Federal Register** notice, entitled *Proposed License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives
(SAMA)Analyses,* contains the guidance for preparing SAMA analyses related to license renewal applications. The NRC staff approves this LR-ISG for NRC and industry use. The NRC staff will also incorporate the approved LR-ISG into the next revision of Supplement 1 to Regulatory Guide 4.2, “Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses.” Dated at Rockville, Maryland, this 2nd day of August 2007. For the Nuclear Regulatory Commission. Pao-Tsin Kuo, Director, Division of License Renewal, Office of Nuclear Reactor Regulation. Attachment 1—Staff Position and Rationale for the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses *Staff Position:* The NRC staff recommends that applicants for license renewal follow the guidance provided in Nuclear Energy Institute
(NEI)05-01, “Severe Accident Mitigation Alternatives
(SAMA)Analysis—Guidance Document,” Revision A, when preparing their SAMA analyses. *Rationale:* The NEI developed a generic Guidance Document NEI 05-01, Revision A, to help clarify the NRC staff's expectations regarding the information that needs to be included in SAMA analyses. The NRC staff reviewed and concluded that NEI 05-01, Revision A, describes existing NRC regulations and facilitates complete preparation of SAMA analysis submittals. The staff finds that utilization of the guidance provided in NEI 05-01, Revision A, will result in improved quality in SAMA analyses and a reduction in the number of requests for additional information. Attachment 2—Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses Introduction A severe accident mitigation alternatives
(SAMA)analyses is required as part of a license renewal application, if a SAMA analysis has not already been performed for the plant and reviewed by the NRC staff. SAMA analyses have been performed and submitted to the NRC for all applications for license renewal received by the staff thus far. Therefore, this LR-ISG is being recommended as guidance consistent with our goal to more effectively and efficiently resolve license renewal issues identified by the staff or the industry. Background and Discussion After receiving extensive requests for additional information regarding the SAMA analyses, several applicants for license renewal concluded that they did not fully understand the kind of information that the NRC staff was expecting to see in SAMA analyses. The Nuclear Energy Institute
(NEI)developed a generic guidance document to help clarify the NRC staff's expectations regarding the information that should be submitted in SAMA analyses. On April 8, 2005, NEI submitted NEI 05-01, “Severe Accident Mitigation Alternatives
(SAMA)Analysis—Guidance Document.” The NRC staff reviewed this guidance document, and by letter, dated July 12, 2005, provided comments on NEI 05-01. The NRC staff's comments were discussed during a public meeting between NEI and NRC on July 21, 2005. On February 17, 2006, NEI submitted its NEI 05-01, Revision A, dated November 2005. The NRC staff reviewed and concluded that this version fully resolved the NRC staff's comments. In addition, the NRC staff concluded that NEI 05-01, Revision A, describes existing NRC regulations, and facilitates complete preparation of SAMA analysis submittals. Some applicants for license renewal have submitted SAMA analyses using the guidance provided in NEI 05-01, Revision A. The NRC staff found improved quality in the submitted SAMA analyses and a reduction in the number of requests for additional information for those applications that followed the guidance provided in NEI 05-01, Revision A. Recommended Action The staff is recommending that applicants for license renewal follow the guidance provided in NEI 05-01, Revision A, when preparing their SAMA analyses. The staff finds that NEI 05-01, Revision A, describes existing NRC regulations, and facilitates complete preparation of SAMA analysis submittals. Although this proposed LR-ISG does not convey a change in the NRC's regulations or how they are interpreted, it is being provided to facilitate complete preparation of future SAMA analysis submittals in support of applications for license renewal. The NRC staff plans to incorporate the guidance provided in NEI 05-01, Revision A, into a future update of Supplement 1 to Regulatory Guide 4.2, “Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses.” This LR-ISG provides a clarification of existing guidance with no additional requirements. For those that are interested in reviewing NEI 05-01, Revision A, the Agencywide Documents Access and Management System (ADAMS) Accession Number is ML060530203. [FR Doc. E7-15926 Filed 8-13-07; 8:45 am] BILLING CODE 7590-01-P POSTAL REGULATORY COMMISSION [Docket No. MC2007-4; Order No. 23] Negotiated Service Agreement AGENCY: Postal Regulatory Commission. ACTION: Notice and order. SUMMARY: This document establishes a docket for consideration of the Postal Service's request for approval of contract rates with The Bradford Group. It identifies key elements of the proposed agreement, which involves Standard Mail letters and flats rates, and addresses preliminary procedural matters. DATES: 1. August 24, 2007: Deadline for intervention and responses to limitation of issues. 2. August 28, 2007: Prehearing conference, 11 a.m. in the Commission's hearing room. ADDRESSES: Submit comments electronically via the Commission's Filing Online system at *http://www.prc.gov.* FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 202-789-6820 and *stephen.sharfman@prc.gov.* SUPPLEMENTARY INFORMATION: On August 3, 2007, the United States Postal Service filed a request seeking a recommended decision from the Postal Regulatory Commission approving a Negotiated Service Agreement
(NSA)with The Bradford Group. 1 The NSA is proffered as functionally equivalent to the Bookspan NSA recommended by the Commission in Docket No. MC2005-3 (baseline agreement). [70 FR 42602.] The Request, which includes six attachments, was filed pursuant to chapter 36 of title 39, United States Code. 2 1 Request of the United States Postal Service for a Recommended Decision on Classifications and Rates to Implement a Functionally Equivalent Negotiated Service Agreement with Bradford Group, August 3, 2007 (Request). 2 Attachments A and B to the Request contain proposed changes to the Domestic Mail Classification Schedule and associated rate schedules; Attachment C is a certification required by Commission rule 193(i) specifying that the cost statements and supporting data submitted by the Postal Service, which purport to reflect the books of the Postal Service, accurately set forth the results shown by such books; Attachment D is an index of testimony and exhibits; Attachment E is a compliance statement addressing satisfaction of various filing requirements; and Attachment F is a copy of the Negotiated Service Agreement. The Postal Service has identified The Bradford Group, along with itself, as parties to the NSA. This identification serves as notice of intervention by The Bradford Group. It also indicates that The Bradford Group shall be considered a co-proponent, procedurally and substantially, of the Postal Service's Request during the Commission's review of the NSA. Rule 191(b) [39 CFR 3001.191(b).] An appropriate Notice of The Bradford Group of Appearance and Filing of Testimony as Co-Proponent, August 3, 2007, has been filed. In support of the direct case, the Postal Service has filed Direct Testimony of Broderick A. Parr on Behalf of the United States Postal Service, August 3, 2007 (USPS-T-1) and library reference USPS-LR-L-1, MC2004-3 Opinion and Further Recommended Decision Analysis for The Bradford Group NSA. The Bradford Group has separately filed direct testimonies of Steve Gustafson (BG-T-1) and Wendy Ring (BG-T-2) both on behalf of The Bradford Group, August 3, 2007. The Postal Service has reviewed The Bradford Group testimony and, in accordance with rule 192(b) [39 CFR 3001.192(b)], states that such testimony may be relied upon in presentation of the Postal Service's direct case. USPS-T-1 at 3. The Request relies on record testimony entered in the baseline docket. This material is identified in the Postal Service's Compliance Statement, Request Attachment E. Requests that are proffered as functionally equivalent to baseline NSAs are handled expeditiously, until a final determination has been made as to their proper status. The Postal Service's Compliance Statement, Request Attachment E, is noteworthy in that it provides valuable information to facilitate rapid review of the Request to aid participants in evaluating whether or not the procedural path suggested by the Postal Service is appropriate. The Postal Service submitted several contemporaneous related filings with its Request. The Postal Service has filed a proposal for limitation of issues in this docket. 3 Rule 196(a)(6) [39 CFR 3001.196(a)(6)]. The proposal identifies issues that were previously decided in the baseline docket, and key issues that are unique to the instant Request. 3 United States Postal Service Proposal for Limitation of Issues, August 3, 2007. Rule 196(b) [39 CFR 3001.196(b)] requires the Postal Service to provide written notice of its Request, either by hand delivery or by First Class Mail, to all participants of the baseline docket. This requirement provides additional time, due to an abbreviated intervention period, for the most likely participants to decide whether or not to intervene. A copy of the Postal Service's notice was filed with the Commission on August 3, 2007. 4 4 Notice of the United States Postal Service Concerning the Filing of a Request for a Recommended Decision on a Functionally Equivalent Negotiated Service Agreement, August 3, 2007. The Request, accompanying testimonies of witnesses Parr (USPS-T-1), Gustafson (BG-T-1), and Ring (BG-T-2), the baseline agreement, and other related material can be accessed electronically, via the Internet, on the Commission's Web site ( *http://www.prc.gov* ). I. Background: Baseline Bookspan Negotiated Service Agreement, Docket No. MC2005-3 If a request predicated on a NSA is found to be functionally equivalent to a previously recommended, and currently in effect, NSA, it may be afforded accelerated review. Rule 196 [39 CFR 3001.196]. The Postal Service asserts that the NSA in the instant Request is functionally equivalent to the now in effect Bookspan NSA recommended by the Commission in Docket No. MC2005- 3. 5 The Bookspan NSA will remain in force from June 1, 2006 to June 1, 2009. *See* Decision of the Governors of the United States Postal Service on the Recommended Decision of the Postal Rate Commission on Rate and Service Changes to Implement Baseline Negotiated Service Agreement with Bookspan, Docket No. MC2005-3, May 31, 2006. 5 *See* Opinion and Recommended Decision, Docket No. MC2005-3, May 10, 2006. The Bookspan NSA is designed to provide incentives to Bookspan to increase its use of Standard Mail letters for the purpose of soliciting members for its various book clubs. Direct Testimony of Michelle K. Yorgey on Behalf of the United States Postal Service, Docket No. MC2005-3, July 14, 2005, at 2. The Bookspan agreement provides Bookspan with a per-piece discount for Standard Mail letter volumes that exceed specified volume thresholds. Discounts are only payable after certain specified minimum volume commitments have been reached. The volume commitment levels are subject to adjustment each year, based on the previous year's actual volume. *Id.* The Bookspan NSA also provides for several other risk mitigation features to protect the Postal Service's interests. If Bookspan sends more than a maximum number of qualifying pieces in one year, the agreement automatically terminates. Either party may also unconditionally cancel the agreement with 30 days' notice. Additionally, the agreement contains a mechanism to adjust the volume blocks applicable to discounts if Bookspan merges or acquires other entities. II. The Bradford Group NSA The Postal Service proposes to enter into a three-year NSA with The Bradford Group. The agreement provides The Bradford Group with declining block rates for Standard Mail letters and flats soliciting new and existing customers for The Bradford Group's collectibles and other gift items. The total estimated net benefit to postal finances over the three-year period of this NSA is $5.3 million. Request at 4. The Bradford Group NSA is based on the same key substantive functional elements that are central to the Bookspan agreement. *Id.* at 3. Like the Bookspan NSA this agreement provides declining block rates for Standard Mail letter solicitations. Additionally, The Bradford Group agreement provides declining block rates for Standard Mail flats. By providing discounts for both letters and flats, the potential for letter-flat conversion will be mitigated. USPS-T-1 at 2. Based on an analysis of The Bradford Group's volume histories and forecasts, the Postal Service does not anticipate a significant conversion between letters and flats. The agreement contains several provisions to mitigate risk. These provisions include an annual adjustment mechanism for those volume commitments, based on actual experience, an automatic termination clause if volumes exceed a specified cap, and an unconditional right of cancellation for both parties. Request at 2. In the first year of the agreement, the projected before-rates volumes are $146.5 million for letter pieces and $53.5 million for flat pieces. Discounts would be earned for volumes above the thresholds of 147 million and 53.5 million pieces for letters and flats respectively. The discounts will not be paid unless The Bradford Group actually mails 154 million letters and/or 54.5 million flats. *Id.* at 2-3. Without an incentive such as that provided by the proposed NSA, The Bradford Group marketing volumes are expected to be flat or falling due to the highly volume variable nature of The Bradford Group's operations. III. Commission Analysis *Applicability of the rules for functionally equivalent NSAs.* For administrative purposes, the Commission has docketed the instant filing as a request predicated on an NSA functionally equivalent to a previously recommended and ongoing NSA. A final determination regarding the appropriateness of characterizing the NSA as functionally equivalent to the Bookspan NSA, Docket No. MC2005-3, and application of the expedited rules for functionality equivalent NSAs, will not be made until after the prehearing conference. *Representation of the general public.* In conformance with section 3624(a) of title 39, the Commission designates Kenneth E. Richardson, acting director of the Commission's Office of the Consumer Advocate (OCA), to represent the interests of the general public in this proceeding. Pursuant to this designation, Mr. Richardson will direct the activities of Commission personnel assigned to assist him and, upon request, will supply their names for the record. Neither Mr. Richardson nor any of the assigned personnel will participate in or provide advice on any Commission decision in this proceeding. *Intervention.* Those wishing to be heard in this matter are directed to file a notice of intervention on or before August 24, 2007. The notice of intervention shall be filed using the Internet (Filing Online) at the Commission's Web site ( *http://www.prc.gov* ), unless a waiver is obtained for hardcopy filing. Rules 9(a) and 10(a) [39 CFR 3001.9(a) and 10(a).] Notices should indicate whether participation will be on a full or limited basis. See rules 20 and 20a [ 39 CFR 3001.2 and 20a.] No decision has been made at this point on whether a hearing will be held in this case. *Prehearing conference.* A prehearing conference will be held August 28, 2007, at 11 a.m. in the Commission's hearing room. Participants intending to object to the Postal Service's proposal for limiting issues, or intending to identify issue(s) that would indicate the need to schedule a hearing shall file a written explanation of their position by August 24, 2007. Participants shall be prepared to discuss these issues during the prehearing conference. The Commission intends to issue a ruling on these issues shortly after the prehearing conference. Ordering Paragraphs It is ordered: 1. The Commission establishes Docket No. MC2007-4 to consider the Postal Service Request referred to in the body of this order. 2. The Commission will sit *en banc* in this proceeding. 3. Kenneth E. Richardson, acting director of the Commission's Office of the Consumer Advocate, is designated to represent the interest of the general public. 4. The deadline for filing notices of intervention is August 24, 2007. 5. A prehearing conference will be held August 28, 2007 at 11 a.m. in the Commission's hearing room. 6. Participants intending to object to proceeding under rule 196 [39 CFR 3001.196], intending to object to the Postal Service's proposal for limiting issues, or intending to identify issue(s) that would indicate the need to schedule a hearing shall file a written explanation of their position by August 24, 2007. 7. The Secretary shall arrange for publication of this notice and order in the **Federal Register** . By the Commission. Steven W. Williams, Secretary. [FR Doc. E7-15835 Filed 8-13-07; 8:45 am] BILLING CODE 7710-FW-P PRESIDIO TRUST Notice of Intent To Prepare an Environmental Impact Statement and Conduct Scoping; Public Museum at the Presidio AGENCY: The Presidio Trust. ACTION: Notice of Intent to Prepare an Environmental Impact Statement. SUMMARY: Pursuant to section 102(2)(c) of the National Environmental Policy Act
(NEPA)of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321 *et seq.* ), the Presidio Trust (Trust) is notifying interested parties that it will prepare an environmental impact statement
(EIS)for a proposed museum at the Presidio (proposed action) and engage in a scoping process to seek public input. The EIS will address the significant environmental impacts of constructing a new public museum and related structures totaling approximately 100,000 square feet within the Main Post district of the Presidio of San Francisco (Presidio), California. The public scoping process will determine the range of actions, alternatives and impacts to be considered in the EIS. SUPPLEMENTARY INFORMATION: The Trust has received for its review an offer to lease the area south of the Main Parade Ground on the Main Post bounded by Moraga Avenue to the south, Arguello Boulevard to the east, Montgomery Street to the west, and Sheridan Avenue to the north (Project Site) for the purpose of constructing a new 100,000 square-foot museum. The Trust is considering the proposal because it believes that the presence of a major cultural institution such as the one proposed could serve as a catalyst for attracting other compatible uses to the Main Post. The proposed action would entail the demolition of the existing 12,800 square-foot Bowling Center (Building 93), the 3,030 square-foot Red Cross Building (Building 97), a 450-square foot garage (Building 98) and a tennis court. The museum building would be planned and completed consistent with the general design and technical recommendations for new construction at the Project Site that are within the Trust's Main Post Planning & Design Guidelines. In order for the proposed action to be considered successful, it should: 1. Provide a cultural experience of distinction at the Main Post that engages the public and that enhances the Presidio as a national park. 2. In keeping with the Presidio's character as a national park, ensure broad public accessibility to the premises and the program of a cultural institution. 3. Site and design new construction to enhance historically significant open spaces within the Main Post and to preserve the integrity of the National Historic Landmark District (NHLD). 4. Incorporate “green” design and sustainable principles and practices that lower energy consumption, conserve natural resources and reduce pollution. 5. Promote alternative forms of transportation to minimize the need for vehicle use by visitors as well as employees. 6. Be economically feasible and enhance the viability of the Presidio as a self-sustaining national park. The Trust has determined that the proposed action may have significant effects on the human environment within the meaning of the NEPA. Because the Project Site was not identified as a “preferred location for a large museum” in the Presidio Trust Management Plan, the Trust's formally adopted policy statement for land use planning for Area B of the Presidio, the Trust intends to prepare an EIS to address potential environmental impacts from the proposed action and the range of reasonable alternatives. In seeking tenants, the Trust is required to provide for “reasonable competition.” The Trust will promote competition for the project site by widely publicizing a request for proposals (RFP). Proposals received in response to the RFP may yield alternatives for analysis in the EIS, including a “preferred alternative” that may differ from the proposed action. Other alternatives to be considered may include the museum's location at one or more sites at Crissy Field (Area B) or within existing buildings on the Main Post. Potential impacts to be evaluated in the EIS include those on parking and traffic, visual resources, and those to the NHLD. Compliance with Section 106 of the National Historic Preservation Act will be a component of the EIS utilizing the public input, alternatives development, and assessment processes to address historic preservation requirements. The Trust will announce the release of the EIS (expected to occur in early 2008) for review and comment through the publication of a Notice of Availability in the **Federal Register** , through postings on its Web site at *http://www.presidio.gov* and its regular electronic newsletter (Presidio E-news), as well as direct mailing to the project mailing list and other appropriate means. DATES: Written comments or suggestions to assist in identifying significant environmental issues and in determining the appropriate scope of the EIS should be submitted on or before October 15, 2007. A public meeting will be held on September 24, 2007 beginning at 6:30 p.m., at the Presidio Officers' Club (50 Moraga Avenue) to accept oral comments on the scope of the EIS. ADDRESSES: Electronic comments concerning this notice can be sent to *PresidioMuseum@presidiotrust.gov.* Written comments may be faxed to Presidio Museum at 415.561.5308. Written comments may also be submitted to Presidio Museum, Attn: NEPA Compliance Manager, The Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 94129-0052. Please be aware that all written comments and information submitted will be made available to the public, including, without limitation, any postal address, e-mail address, phone number or other information contained in each submission. FOR FURTHER INFORMATION CONTACT: John Pelka, 415.561.5300. Dated: August 8, 2007. Karen A. Cook, General Counsel. [FR Doc. E7-15892 Filed 8-13-07; 8:45 am] BILLING CODE 4310-4R-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56218; File No. SR-Amex-2007-74] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto Relating to the Listing and Trading of Shares of Funds of the Rydex ETF Trust August 7, 2007. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on July 13, 2007, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change (“Exchange Notice”) as described in Items I, II, and III below, which Items have been substantially prepared by the Exchange. On July 31, 2007, Amex submitted Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 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 proposes to list and trade the shares (the “Shares”) of forty-five funds of the Rydex ETF Trust (the “Trust”) 3 based on numerous domestic securities indexes. The text of the proposed rule change is available at Amex, the Commission's Public Reference Room, and *http://www.amex.com.* 3 The Trust is registered as a business trust under the Delaware Corporate Code. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Amex Rules 1000A-AEMI and 1001A-1005A provide standards for the listing of Index Fund Shares, which are securities issued by an open-end management investment company for exchange trading. These securities are registered under the Investment Company Act of 1940 (“1940 Act”), as well as under the Act. Index Fund Shares are defined in Amex Rule 1000A-AEMI(b)(1) generally as securities based on a portfolio of stocks or fixed income securities that seek to provide investment results that correspond generally to the price and yield of a specified foreign or domestic stock index or fixed income securities index. Amex Rule 1000A-AEMI(b)(2) permits the Exchange to list and trade Index Fund Shares that seek to provide investment results that exceed the performance of an underlying securities index by a specified multiple or that seek to provide investment results that correspond to a specified multiple of the inverse or opposite of the index's performance. 4 4 *See* Amex Rule 1000A-AEMI(b)(2)(iii) and Commentary .02 thereto (providing that the listing and trading of Index Fund Shares under paragraph (b)(2) thereof cannot be approved by the Exchange pursuant to Rule 19b-4(e) under the Act (17 CFR 240.19b-4(e)). The Exchange proposes to list under Amex Rule 1000A-AEMI the Shares of forty-five new funds of the Trust that are designated as the Rydex Leveraged Funds (the “Leveraged Funds”), Rydex Inverse Funds (the “Inverse Funds”), and Rydex Leveraged Inverse Funds (the “Leveraged Inverse Funds,” and together with the Leveraged Funds and Inverse Funds, collectively, the “Funds”). Each of the Funds will have a distinct investment objective by attempting, on a daily basis, to correspond to a specified multiple of the performance, or the inverse performance, of a particular equity securities index as described below. The Funds will be based on the following benchmark indexes:
(1)The S&P 500 Index;
(2)the S&P MidCap 400 Index;
(3)the S&P Small Cap 600 Index;
(4)the Russell 1000 Index;
(5)the Russell 2000 Index;
(6)the Russell 3000 Index;
(7)the S&P 500 Consumer Discretionary Index;
(8)the S&P 500 Consumer Staples Index;
(9)the S&P 500 Energy Index;
(10)the S&P 500 Financials Index;
(11)the S&P 500 HealthCare Index;
(12)the S&P 500 Industrials Index;
(13)the S&P 500 Information Technology Index;
(14)the S&P 500 Materials Index; and
(15)the S&P 500 Utilities Index (each index individually referred to as an “Underlying Index,” and all Underlying Indexes collectively referred to as the “Underlying Indexes”). 5 5 Amex states that certain exchange-traded funds (“ETFs”) and/or options based on each of the Underlying Indexes are currently listed and traded on the Exchange. *See infra* notes 10-21 and accompanying text. The Statement of Additional Information (“SAI”) for the Funds discloses that each Fund reserves the right to substitute a different Underlying Index. Substitutions can occur if an Underlying Index becomes unavailable, no longer serves the investment needs of shareholders, the Fund experiences difficulty in achieving investment results that correspond to the applicable Underlying Index, or for any other reason determined in good faith by the Board (as defined herein). In such instance, the substitute index would attempt to measure the same general market as the then current Underlying Index. Consistent with applicable law, shareholders would be notified (either directly or through their respective intermediary) if a Fund's Underlying Index is replaced. As explained herein, the continued listing standards under Amex Rule 1002A would apply to the Shares. *See* Amex Rule 1002A(b)(i)(B) (providing that the Exchange will consider the suspension of trading in, or removal from listing of, a series of Index Fund Shares if, among other circumstances, the Underlying Index or portfolio is replaced with a new index or portfolio, subject to certain exceptions). The Leveraged Funds will seek daily investment results, before fees and expenses, that correspond to twice (200%) the daily performance of the corresponding Underlying Indexes. The net asset value (“NAV”) of the Shares of each of these Leveraged Funds, if successful in meeting its objective, should increase, on a percentage basis, approximately twice as much as the respective Fund's Underlying Index gains when the prices of the securities in such Underlying Index increase on a given day, and should decrease approximately twice as much as the respective Underlying Index loses when such prices decline on a given day. The Inverse Funds will seek daily investment results, before fees and expenses, that correspond to the inverse or opposite of the daily performance (−100%) of the Underlying Indexes. If each of these Inverse Funds is successful in meeting its objective, the NAV of the Shares of each Inverse Fund should increase approximately as much, on a percentage basis, as the respective Underlying Index loses when the prices of the securities in the Underlying Index decline on a given day, or should decrease approximately as much as the respective Underlying Index gains when the prices of the securities in the Underlying Index rise on a given day. The Leveraged Inverse Funds will seek daily investment results, before fees and expenses, that correspond to twice the inverse (−200%) of the daily performance of the Underlying Indexes. If each of these Leveraged Inverse Funds is successful in meeting its objective, the NAV of the Shares of each Leveraged Inverse Fund should increase approximately twice as much, on a percentage basis, as the respective Underlying Index loses when the prices of the securities in the Underlying Index decline on a given day, or should decrease approximately twice as much as the respective Underlying Index gains when the prices of the securities in the Underlying Index rise on a given day. Rydex Investments is the investment advisor (the “Advisor”) to each Fund. The Advisor is registered under the Investment Advisers Act of 1940. 6 While the Advisor will manage each Fund, the Trust's Board of Trustees (the “Board”) will have overall responsibility for the Funds' operations. The composition of the Board is, and will be, in compliance with the requirements of Section 10 of the 1940 Act. 7 Rydex Distributors, Inc. (the “Distributor”), a broker-dealer registered under the Act, will act as the distributor and principal underwriter of the Shares. State Street Bank & Trust will act as the index receipt agent (the “Index Receipt Agent”) for which it will receive fees. The Index Receipt Agent will be responsible for transmitting the Deposit List (as defined herein) to the National Securities Clearing Corporation (“NSCC”) and for the processing, clearance, and settlement of purchase and redemption orders through the facilities of the Depository Trust Company (“DTC”) and NSCC on behalf of the Trust. The Index Receipt Agent will also be responsible for the coordination and transmission of files and purchase and redemption orders between the Distributor and the NSCC. 6 The Trust, Advisor, and Distributor (“Applicants”) have filed with the Commission an application for an order under the 1940 Act (the “Application”) for the purpose of exempting the Funds of the Trust from various provisions of the 1940 Act. *See* Investment Company Act Release No. 27703 (February 20, 2007), 72 FR 8810 (February 27, 2007) (File No. 812-13337) (providing notification of an application for an order under Section 6(c) of the 1940 Act for an exemption from Sections 2(a)(32), 5(a)(1), 22(d), and 24(d) of the 1940 Act and Rule 22c-1 under the 1940 Act, and under Sections 6(c) and 17(b) of the Act for an exemption from Sections 17(a)(1) and (a)(2) of the 1940 Act). 7 15 U.S.C. 80a-10 (setting forth certain restrictions and requirements with respect to affiliations or interest of directors, officers, and employees of registered investment companies). Shares of the Funds issued by the Trust will be a class of exchange-traded securities that represent an interest in the portfolio of a particular Fund. 8 The Shares will be registered in book-entry form only, and the Trust will not issue individual share certificates. DTC or its nominee will be the record or registered owner of all outstanding Shares. Beneficial ownership of Shares will be shown on the records of DTC or DTC participants. 8 The Trust is registered as a business trust under the Delaware Corporate Code. Underlying Indexes While the Exchange proposes to list and trade the Shares of the Funds pursuant to section 19(b)(1) of the Act, the Exchange represents that the Underlying Index components comply with the generic listing standards set forth in Commentary .02 to Amex Rule 1000A-AEMI. 9 9 E-mail from Jeffrey P. Burns, Associate General Counsel, Amex, to Edward Cho, Special Counsel, Division of Market Regulation, Commission, dated August 1, 2007 (clarifying the basis for the Exchange's proposal to list and trade the Shares) (“Amex Confirmation”). *S&P 500 Index.* The S&P 500 Index is a capitalization-weighted index composed of 500 common stocks, which are chosen by Standard & Poor's (“S&P”) on a statistical basis. As of July 10, 2007, the S&P 500 Index included companies with an average capitalization of $27.895 billion. This Underlying Index has been approved for options trading and is also the basis for an ETF. 10 10 *See* Securities Exchange Act Release No. 31591 (December 11, 1992), 57 FR 60253 (December 18, 1992) (SR-Amex-92-18) (approving the listing and trading of portfolio depository receipts (“PDRs”), including receipts based on the S&P 500 Index). *S&P MidCap 400 Index.* The S&P MidCap 400 Index is a modified capitalization-weighted index composed of 400 mid-cap stocks chosen by S&P for market size, liquidity, and industry group representation. This Underlying Index covers approximately 7% of the total market capitalization of the U.S. equities market. As of July 10, 2007, the S&P MidCap 400 Index included companies with an average capitalization of $3.219 billion. This Underlying Index has been approved for options trading and is also the basis for an ETF. 11 11 *See* Securities Exchange Act Release No. 35534 (March 24, 1995), 60 FR 16686 (March 31, 1995) (SR-Amex-94-52) (approving the listing and trading of PDRs based on the S&P 400 Midcap Index). *S&P SmallCap 600 Index.* The S&P SmallCap 600 Index is a measure of small-cap company stock performance. It is a float-adjusted, market-capitalization-weighted index of 600 U.S. operating companies. Securities are selected for inclusion in this Underlying Index by an S&P committee through a non-mechanical process that factors criteria such as liquidity, price, market capitalization, financial viability, and public float. As of July 10, 2007, the S&P SmallCap 600 Index included companies with an average capitalization of $1.075 billion. This Underlying Index has been approved for options trading and is also the basis for an ETF. 12 12 *See* Securities Exchange Act Release No. 35532 (March 24, 1995), 60 FR 16518 (March 30, 1995) (SR-CBOE-94-43) (approving the listing and trading of options on the S&P SmallCap 600 Index). *Russell 1000 Index.* The Russell 1000 Index measures the performance of the 1,000 largest companies in, and represents approximately 92% of the total market capitalization of, the Russell 3000 Index. As of July 10, 2007, the Russell 1000 Index included companies with an average market capitalization of approximately $16.193 billion. This Underlying Index has been approved for options trading and is also the basis for an ETF. 13 13 *See* Securities Exchange Act Release No. 53191 (January 30, 2006), 71 FR 6111 (February 6, 2006) (SR-Amex-2005-061) (approving the listing and trading of options on the Russell Indexes, including the Russell 1000, 2000, and 3000 Indexes). *Russell 2000 Index.* The Russell 2000 Index measures the performance of the 2,000 smallest companies in, and represents approximately 8% of the total market capitalization of, the Russell 3000 Index. As of July 10, 2007, the Russell 2000 Index included companies with an average market capitalization of approximately $899 million. This Underlying Index has been approved for options trading and is also the basis for an ETF. 14 14 *See id.* *Russell 3000 Index.* The Russell 3000 Index measures the performance of the 3,000 largest U.S. companies based on total market capitalization and represents approximately 98% of the investable U.S. equity market. As of July 10, 2007, the Russell 3000 Index included companies with an average market capitalization of approximately $6.165 billion. This Underlying Index has been approved for options trading and is also the basis for an ETF. 15 15 *See id.* *S&P 500 Consumer Discretionary Index.* The S&P 500 Consumer Discretionary Index consists of the common stocks of the following industries that comprise the Consumer Discretionary sector of the S&P 500 Index: automobiles and components, consumer durables, apparel, hotels, restaurants, leisure, media, and retailing. As of July 10, 2007, the S&P 500 Consumer Discretionary Index included companies with an average capitalization of $16.685 billion. This Underlying Index is the basis for both the Select Sector SPDR—Consumer Discretionary ETF and the Rydex S&P Equal Weight Consumer Discretionary ETF listed and traded on the Exchange. *S&P 500 Consumer Staples Index.* The S&P 500 Consumer Staples Index consists of the common stocks of the following industries that comprise the Consumer Staples sector of the S&P 500 Index: food and drug retailing, beverages, food products, tobacco, household products, and personal products. As of July 10, 2007, the S&P 500 Consumer Staples Index included companies with an average capitalization of $35.494 billion. This Underlying Index is the basis for both the Select Sector SPDR—Consumer Staples ETF 16 and the Rydex S&P Equal Weight Consumer Staples ETF listed and traded on the Exchange. 16 *See* Securities Exchange Act Release No. 40749 (December 4, 1998), 63 FR 68483 (December 11, 1998) (SR-Amex-98-29) (approving the listing and trading of certain Select SPDR ETFs). *S&P 500 Energy Index.* The S&P 500 Energy Index consists of the common stocks of the following industries that comprise the Energy sector of the S&P 500 Index: oil and gas exploration, production, marketing, refining and/or transportation, and energy equipment and services industries. As of July 10, 2007, the S&P 500 Energy Index included companies with an average capitalization of $46.785 billion. This Underlying Index is the basis for both the Select Sector SPDR—Energy ETF 17 and the Rydex S&P Equal Weight Energy ETF listed and traded on the Exchange. 17 *See id.* *S&P 500 Financials Index.* The S&P 500 Financials Index consists of the common stocks of the following industries that comprise the Financials sector of the S&P 500 Index: banks, diversified financials, brokerage, asset management insurance, and real estate, including real estate investment trusts. As of July 10, 2007, the S&P 500 Financials Index included companies with an average capitalization of $30.683 billion. This Underlying Index is the basis for both the Select Sector SPDR—Financials ETF 18 and the Rydex S&P Equal Weight Financials ETF listed and traded on the Exchange. 18 *See id.* *S&P 500 Health Care Index.* The S&P 500 Health Care Index consists of the common stocks of the following industries that comprise the Health Care sector of the S&P 500 Index: health care equipment and supplies, health care providers and services, and biotechnology and pharmaceuticals. As of July 10, 2007, the S&P 500 Health Care Index included companies with an average capitalization of $29.614 billion. This Underlying Index is the basis for both the Select Sector SPDR—Health Care ETF and the Rydex S&P Equal Weight Health Care ETF listed and traded on the Exchange. *S&P 500 Industrials Index.* The S&P 500 Industrials Index consists of the common stocks of the following industries that comprise the Industrials sector of the S&P 500 Index: aerospace and defense, building products, construction and engineering, electrical equipment, conglomerates, machinery, commercial services and supplies, air freight and logistics, airlines, and marine, road, and rail transportation infrastructure. As of July 10, 2007, the S&P 500 Industrials Index included companies with an average capitalization of $28.706 billion. This Underlying Index is the basis for both the Select Sector SPDR—Industrials ETF 19 and the Rydex S&P Equal Weight Industrials ETF listed and traded on the Exchange. 19 *See id.* *S&P 500 Information Technology Index.* The S&P 500 Information Technology Index consists of the common stocks of the following industries that comprise the Information Technology sector of the S&P 500 Index: internet equipment, computers and peripherals, electronic equipment, office electronics and instruments, semiconductor equipment and products, diversified telecommunication services, and wireless telecommunication services. As of July 10, 2007, the S&P 500 Information Technology Index included companies with an average capitalization of $30.947 billion. This Underlying Index is the basis for both the Select Sector SPDR—Technology ETF 20 and the Rydex S&P Equal Weight Technology ETF listed and traded on the Exchange. 20 *See id.* *S&P 500 Materials Index.* The S&P 500 Materials Index consists of the common stocks of the following industries that comprise the Materials sector of the S&P 500 Index: chemicals, construction materials, containers and packaging, metals and mining, and paper and forest products. As of July 10, 2007, the S&P 500 Materials Index included companies with an average capitalization of $15.358 billion. This Underlying Index is the basis for both the Select Sector SPDR—Materials ETF and the Rydex S&P Equal Weight Materials ETF listed and traded on the Exchange. *S&P 500 Utilities Index.* The S&P 500 Utilities Index consists of the common stocks of the following industries that comprise the Utilities sector of the S&P 500 Index: electric utilities, gas utilities, multi-utilities, unregulated power and water utilities, and telecommunication service companies, including fixed-line, cellular, wireless, high bandwidth, and fiber-optic cable networks. As of July 10, 2007, the S&P 500 Utilities Index included companies with an average capitalization of $14.794 billion. This Underlying Index is the basis for both the Select Sector SPDR—Utilities ETF 21 and the Rydex S&P Equal Weight Utilities ETF listed and traded on the Exchange. 21 *See id.* Investment Objective of the Funds Each Leveraged Fund will seek investment results that correspond, before fees and expenses, to twice (200%) the daily performance of an Underlying Index and will invest its assets based upon the same strategies as conventional index funds. Rather than hold positions in equity securities and financial instruments intended to create exposure to 100% of the daily performance of an Underlying Index, these Funds will hold positions in equity securities and certain financial instruments 22 designed to create exposure equal to twice (200%), before fees and expenses, the daily performance of an Underlying Index. These Leveraged Funds generally will hold at least 80% of their net assets, *plus* any borrowings for investment purposes, in the component equity securities of the relevant Underlying Index and Financial Instruments with economic characteristics that should perform similar to that of the relevant Underlying Index. The remainder of assets will be devoted to certain Financial Instruments and money market instruments 23 that are intended to create the additional needed exposure to such Underlying Index necessary to pursue its investment objective. 22 The financial instruments to be held by any of the Funds may include stock index futures contracts, options on futures contracts, options on securities and indices, equity caps, collars and floors, as well as swap agreements, forward contracts, repurchase agreements, and reverse repurchase agreements (the “Financial Instruments”). 23 Money market instruments include U.S. government securities and repurchase agreements (the “Money Market Instruments”). The Exchange states that repurchase agreements held by the Funds will be consistent with Rule 2a-7 of the 1940 Act (17 CFR 270.2a-7), *i.e.* , remaining maturities of 397 days or less and rated investment-grade. The Inverse Funds will seek daily investment results, before fees and expenses, of the inverse or opposite (−100%) of the Underlying Index, and the Leveraged Inverse Funds will seek daily investment results, before fees and expenses, of twice the inverse or opposite (−200%) of the daily performance of the Underlying Index. Each of these Funds will generally hold at least 80% of their respective net assets, *plus* any borrowings for investment purposes, in instruments with economic characteristics that should perform opposite to that of the Underlying Index. Each Inverse and Leveraged Inverse Fund will rely on establishing positions in Financial Instruments that provide, on a daily basis, the inverse or opposite of, or twice the inverse or opposite of, as the case may be, the performance of the relevant Underlying Index. Normally, 100% of the value of the portfolios of each Inverse and Leveraged Inverse Fund will be devoted to Financial Instruments and Money Market Instruments. While the Advisor will attempt to minimize any “tracking error” between the investment results of a particular Fund and the performance (and specified multiple thereof) or the inverse performance (and specified multiple thereof) of its Underlying Index, certain factors may tend to cause the investment results of a Fund to vary from such relevant Underlying Index or specified multiple thereof. 24 The Leveraged Funds are expected to be highly correlated to each respective Underlying Index and investment objective (0.95 or greater). The Inverse and Leveraged Inverse Funds are expected to be highly inversely correlated to each respective Underlying Index and investment objective (−0.95 or greater). 25 In each case, the Funds are expected to have a daily tracking error of less than 5% (excluding expenses and interest, if any) relative to the specified multiple or inverse multiple of the performance of the relevant Underlying Index. 24 The Exchange states that several factors may cause a Fund to vary from the relevant Underlying Index and investment objective including:
(1)A Fund's expenses, including brokerage fees (which may be increased by high portfolio turnover) and the cost of the investment techniques employed by that Fund;
(2)less than all of the securities in the benchmark Underlying Index being held by a Fund and securities not included in the benchmark Underlying Index being held by a Fund;
(3)an imperfect correlation between the performance of instruments held by a Fund, such as futures contracts, and the performance of the underlying securities in the cash market;
(4)bid-ask spreads (the effect of which may be increased by portfolio turnover);
(5)holding instruments traded in a market that has become illiquid or disrupted;
(6)a Fund's Share prices being rounded to the nearest cent;
(7)changes to the benchmark Underlying Index that are not disseminated in advance;
(8)the need to conform a Fund's portfolio holdings to comply with investment restrictions or policies or regulatory or tax law requirements;
(9)early and unanticipated closings of the markets on which the holdings of a Fund trade, resulting in the inability of the Fund to execute intended portfolio transactions; and
(10)market movements that run counter to a Fund's investments. 25 Correlation is the strength of the relationship between
(1)the change in a Fund's NAV and
(2)the change in the benchmark Underlying Index (investment objective). The statistical measure of correlation is known as the “correlation coefficient.” A correlation coefficient of +1 indicates a perfect positive correlation, while a value of −1 indicates a perfect negative (inverse) correlation. A value of zero would mean that there is no correlation between the two variables. The Exchange believes that the Shares will not trade at a material discount or premium to the underlying securities held by a Fund based on potential arbitrage opportunities. The arbitrage process, which provides the opportunity to profit from differences in prices of the same or similar securities, increases the efficiency of the markets and serves to prevent potentially manipulative efforts. If the price of a Share deviates enough from the Creation Unit (as defined herein), on a per-Share basis, to create a material discount or premium, an arbitrage opportunity is created allowing the arbitrageur to either buy the Shares at a discount, immediately cancel them in exchange for the Creation Unit and sell the underlying securities in the cash market at a profit, or sell the Shares short at a premium and buy the Creation Unit in exchange for the Shares to deliver against the short position. In both instances the arbitrageur locks in a profit and the markets move back into line. The Portfolio Investment Methodology The Advisor will seek to establish an investment exposure in each portfolio corresponding to each Fund's investment objective based on its “Portfolio Investment Methodology,” as described below. The Exchange states that the Portfolio Investment Methodology is a mathematical model based on well-established principles of finance that are widely used by investment practitioners, including conventional index fund managers. As set forth in the Application, the Portfolio Investment Methodology was designed to determine for each Fund the portfolio investments needed to achieve its stated investment objectives. The Portfolio Investment Methodology takes into account a variety of specified criteria, the most important of which are:
(1)Net assets (taking into account creations and redemptions) in each Fund's portfolio at the end of each trading day;
(2)the amount of required exposure to the Underlying Index; and
(3)the positions in equity securities, Financial Instruments, and/or Money Market Instruments at the beginning of each trading day. The Advisor, pursuant to such methodology, will then mathematically determine the end-of-day positions to establish the required amount of exposure to the Underlying Index, which will consist of equity securities, Financial Instruments, and/or Money Market Instruments. The difference between the start-of-day positions and the required end-of-day positions is the actual amount of equity securities, Financial Instruments, and/or Money Market Instruments that must be bought or sold for the day (the “Solution”). The Solution represents the required exposure and, when necessary, is converted into an order or orders to be filled that same day. Generally, portfolio trades effected pursuant to the Solution are reflected in the NAV on the first business day (T+1) after the date the relevant trade is made. Therefore, the NAV calculated for a Fund on a given day should reflect the trades executed pursuant to the prior day's Solution. For example, trades pursuant to the Solution calculated on a Monday afternoon are executed on behalf of the Fund in question on that day. These trades will then be reflected in the NAV for that Fund that is calculated as of 4 p.m. Eastern Time (“ET”) on Tuesday. The timeline for the Portfolio Investment Methodology is as follows. Authorized Participants (“APs” or “Authorized Participants”) 26 have a 3 p.m. ET cut-off for orders submitted by telephone, facsimile, and other electronic means of communication and a 4 p.m. ET cut-off for orders received via mail. 27 Orders are received by the Distributor and relayed to the Advisor within ten minutes. The Advisor will know by 3:10 p.m. ET the number of creation/redemption orders by APs for that day. Orders are then placed at approximately 3:40 p.m. ET as market-on-close orders. At 4 p.m. ET, the Advisor will again look at the exposure to make sure that the orders placed are consistent with the Solution, and as described above, the Advisor will execute any other transactions in Financial Instruments to assure that the Fund's exposure is consistent with the Solution. 26 An Authorized Participant is:
(1)Either
(a)a broker-dealer or other participant in the continuous net settlement system of the NSCC, or
(b)a DTC participant; and
(2)a party to a participant agreement with the Distributor. 27 The Exchange states that AP orders by mail are exceedingly rare. Description of Investment Techniques In attempting to achieve its individual investment objectives, a Fund may invest its assets in equity securities, Financial Instruments, and Money Market Instruments. The Leveraged Funds will hold at least 80% of their net assets in the equity securities comprising the relevant Underlying Index. The remainder of assets, if any, will be devoted to Financial Instruments and Money Market Instruments that are intended to create additional needed exposure to such Underlying Index necessary to pursue the Leveraged Funds' investment objectives. The Inverse and Leveraged Inverse Funds generally will not invest in equity securities comprising the applicable Underlying Index, but rather will hold only Financial Instruments and Money Market Instruments. To the extent, applicable, each Fund will comply with the requirements of the 1940 Act with respect to “cover” for Financial Instruments and, thus, may hold a significant portion of its assets in liquid instruments in segregated accounts. Each Fund may engage in transactions in futures contracts on designated contract markets where such contracts trade and will only purchase and sell futures contracts traded on a U.S. futures exchange or board of trade. Each Fund will comply with the requirements of Rule 4.5 of the regulations promulgated by the Commodity Futures Trading Commission (“CFTC”). 28 28 The Exchange states that CFTC Rule 4.5 provides an exclusion for investment companies registered under the 1940 Act from the definition of the term “commodity pool operator” upon the filing of a notice of eligibility with the National Futures Association. Each Fund may enter into swap agreements and/or forward contracts for the purposes of attempting to gain exposure to the equity securities of its Underlying Index without actually transacting such securities. The Exchange states that the counterparties to the swap agreements and/or forward contracts will be major broker-dealers and banks. The creditworthiness of each potential counterparty is assessed by the Advisor's credit committee pursuant to guidelines approved by the Board. Existing counterparties are reviewed periodically by the Board. Each Fund may also enter into repurchase and reverse repurchase agreements with terms of less than one year and will only enter into such agreements with:
(1)Members of the Federal Reserve System;
(2)primary dealers in U.S. government securities; or
(3)major broker-dealers. Each Fund may also invest in Money Market Instruments, in pursuit of its investment objectives, as “cover” for Financial Instruments, as described above, or to earn interest. The Trust will adopt certain fundamental policies consistent with the 1940 Act, and each Fund will be classified as “non-diversified” under the 1940 Act. Each Fund, however, intends to maintain the required level of diversification and otherwise conduct its operations so as to qualify as a “regulated investment company” or “RIC” for purposes of the Internal Revenue Code to relieve the Trust and the Funds of any liability for Federal income tax to the extent that its earnings are distributed to shareholders. 29 29 *See* Exchange Notice n.16 (providing a description of the Internal Revenue Code requirements pertaining to RICs). The Exchange Notice is available at Amex's Web site ( *http://www.amex.com* ). Availability of Information About the Shares and Underlying Indexes The Trust's Internet Web site ( *http://www.rydexinvestments.com* ), which is and will be publicly accessible at no charge, will contain the following information for each Fund's Shares:
(1)The prior business day's closing NAV, the reported closing price, and a calculation of the premium or discount of such price in relation to the closing NAV;
(2)data for a period covering at least the four previous calendar quarters (or the life of a Fund, if shorter) indicating how frequently each Fund's Shares traded at a premium or discount to NAV based on the daily closing price and the closing NAV, and the magnitude of such premiums and discounts;
(3)its prospectus and product description; and
(4)other quantitative information, such as daily trading volume. The prospectus and/or product description for each Fund will inform investors that the Trust's Internet Web site has information about the premiums and discounts at which the Fund's Shares have traded. 30 30 The Exchange states that the Application requests relief from Section 24(d) of the 1940 Act (15 U.S.C. 80a-24(d)), which would permit dealers to sell Shares in the secondary market unaccompanied by a statutory prospectus when prospectus delivery is not required by the Securities Act of 1933. Additionally, if a product description is being provided in lieu of a prospectus, Commentary .06 of Amex Rule 1000A-AEMI requires that Amex members and member organizations provide to all purchasers of a series of Index Fund Shares a written description of the terms and characteristics of such securities, in a form prepared by the open-end management investment company issuing such securities, not later than the time of confirmation of the first transaction in such series is delivered to such purchaser. Furthermore, any sales material will reference the availability of such circular and the prospectus. Amex Confirmation (confirming the Amex rule requiring the delivery of a written description of the terms and characteristics of the Shares). Amex will disseminate for each Fund on a daily basis by means of the Consolidated Tape Association (“CT”) and CQ High Speed Lines information with respect to an Indicative Intra-Day Value (the “IIV”) (as defined and discussed herein), recent NAV, number of Shares outstanding, and the estimated cash amount and total cash amount per Creation Unit. The Exchange will make available on its Web site daily trading volume, closing prices, NAV, and the final dividend amounts to be paid for each Fund. Each Fund's total portfolio composition will be disclosed on the Web site of the Trust or another relevant Internet Web site as determined by the Trust and/or the Exchange. The Trust will provide Web site disclosure of each Fund's portfolio holdings daily and will include, as applicable, the names and number of Shares held of each specific equity security, the specific types of Financial Instruments and characteristics of such Financial Instruments, and the cash equivalents and amount of cash held in the portfolio of each Fund. This public Web site disclosure of the portfolio composition of each Fund and the disclosure by the Advisor of the “IIV File” (as described below) and the portfolio composition file or “PCF” (as described below) will occur at the same time. Therefore, the same portfolio information (including accrued expenses and dividends) will be provided on the public Internet Web site(s), as well as in the IIV File and PCF provided to Authorized Participants. The format of the public Web site disclosure and the IIV File and PCF will differ because the public Web site will list all portfolio holdings, while the IIV File and PCF will similarly provide the portfolio holdings, but in a format appropriate for Authorized Participants, *i.e.* , the exact components of a Creation Unit. 31 Accordingly, each investor will have access to the current portfolio composition of each Fund through the Trust's Web site and/or the Exchange's Web site. 31 The composition will be used to calculate the NAV later that day. Beneficial owners of Shares (“Beneficial Owners”) will receive all of the statements, notices, and reports required under the 1940 Act and other applicable laws. They will receive, for example, annual and semi-annual Fund reports, written statements accompanying dividend payments, proxy statements, annual notifications detailing the tax status of Fund distributions, and Form 1099-DIVs. Some of these documents will be provided to Beneficial Owners by their brokers, while others will be provided by the Fund through the brokers. The daily closing value and the percentage change in the daily closing value for each Underlying Index will be publicly available on various Internet Web sites, and data regarding each Underlying Index will be available from the respective Underlying Index provider. Several independent data vendors also package and disseminate Underlying Index data in various value-added formats (including vendors displaying both securities and Underlying Index levels and vendors displaying Underlying Index levels only). The value of each Underlying Index will be updated intra-day on a real-time basis as its individual component securities change in price. These intra-day values of each Underlying Index will be disseminated at least every 15 seconds throughout the trading day by Amex or another organization authorized by the relevant Underlying Index provider. Creation and Redemption of Shares Each Fund will issue and redeem Shares only in aggregations of at least 50,000 (each aggregation, a “Creation Unit”). Purchasers of Creation Units will be able to separate the Creation Units into individual Shares. Once the number of Shares in a Creation Unit is determined, it will not change thereafter (except in the event of a stock split or similar revaluation). The initial value of a Share for each of the Funds is expected to be in the range of $50-$250. At the end of each business day, the Trust will prepare the list of names and the required number of Shares of each Deposit Security (as defined herein) to be included in the next trading day's Creation Unit for each Leveraged Fund (the “Deposit List”). The Trust will then add to the Deposit List the cash information effective as of the close of business on that business day and create a PCF for each Fund, which will be transmitted to NSCC before the open of business the next business day. The information in the PCF will be available to all participants in the NSCC system. Because the NSCC's system for the receipt and dissemination to its participants of the PCF is not currently capable of processing information with respect to Financial Instruments, the Advisor has developed an “IIV File,” which it will use to disclose the Funds’ holdings of Financial Instruments. 32 The IIV File will contain, for each Leveraged Fund (to the extent that it holds Financial Instruments) and Inverse and Leveraged Inverse Fund, information sufficient by itself or in connection with the PCF and other available information for market participants to calculate a Fund's IIV and effectively value such Fund. 32 The Trust or the Advisor will post the IIV File to a password-protected Internet Web site before the opening of business on each business day, and all Authorized Participants and the Exchange will have access to a password and the Web site containing the IIV File. The Funds, however, will disclose each business day to the public identical information, but in a format appropriate to public investors, at the same time the Funds disclose the IIV File and PCF, as applicable, to industry participants. For example, the following information would be provided in the IIV File for a Leveraged Fund holding equity securities and Financial Instruments and an Inverse Fund and/or Leveraged Inverse Fund holding swaps and futures contracts (certain Financial Instruments):
(A)The total value of the equity securities held by the Leveraged Fund;
(B)the notional value of the swaps held by such Funds (together with an indication of the Underlying Index on which such swap is based and whether the Funds' position is long or short);
(C)the most recent valuation of the swaps held by the Funds;
(D)the notional value of any futures contracts (together with an indication of the Underlying Index on which such contract is based, whether the Funds' position is long or short, and the contract's expiration date) held by the Funds;
(E)the number of futures contracts held by the Funds (together with an indication of the Underlying Index on which such contract is based, whether the Funds' position is long or short, and the contract's expiration date);
(F)the most recent valuation of the futures contracts held by the Funds;
(G)the total assets and total number of Shares outstanding of each Fund; and
(H)a “net other assets” figure reflecting expenses and income of the Funds to be accrued during and through the following business day and accumulated gains or losses on the Funds' Financial Instruments through the end of the business day immediately preceding the publication of the IIV File. To the extent that any Fund holds cash or cash equivalents about which information is not available in a PCF, information regarding such Fund's cash and cash equivalent positions will be disclosed in the IIV File for such Fund. The information in the IIV File will be sufficient for participants in the NSCC system to calculate the IIV for the Inverse and Leveraged Inverse Funds and, together with the information on equity securities contained in the PCF, will be sufficient for calculation of the IIV for the Leveraged Funds, during such next business day. The IIV File, together with the applicable information in the PCF in the case of Leveraged Funds, will also be the basis for the next business day's NAV calculation. Under normal circumstances, the Leveraged Funds will be created and redeemed either entirely for cash and/or for a deposit basket of equity securities (“Deposit Securities”), *plus* a Balancing Amount (as defined herein), as described below. Under normal circumstances, the Inverse and Leveraged Inverse Funds will be created and redeemed entirely for cash. The IIV File published before the open of business on a business day will, however, permit NSCC participants to calculate (by means of calculating the IIV) the amount of cash required to create a Creation Unit and the amount of cash that will be paid upon redemption of a Creation Unit, for each Inverse and Leveraged Inverse Fund for that business day. For the Leveraged Funds, the PCF will be prepared by the Trust after 4 p.m. ET and transmitted by the Index Receipt Agent to NSCC by 6:30 p.m. ET. All Authorized Participants who are NSCC participants and the Exchange will have access to the Internet Web site containing the IIV File. The IIV File will reflect the trades made on behalf of a Fund and the creation/redemption orders, in each case, for that business day. Accordingly, by 6:30 p.m. ET, Authorized Participants will know the composition of the Fund's portfolio for the next trading day. *Creation of the Leveraged Funds.* Typically, persons 33 purchasing Creation Units from a Leveraged Fund must make an in-kind deposit of a basket of Deposit Securities consisting of the securities selected by the Advisor from among those securities contained in the Fund's portfolio, together with an amount of cash specified by the Advisor (the “Balancing Amount”), *plus* the applicable transaction fee (the “Transaction Fee”). The Deposit Securities and the Balancing Amount collectively are referred to as the “Creation Deposit.” The Balancing Amount is a cash payment designed to ensure that the value of a Creation Deposit is identical to the value of the Creation Unit. The Balancing Amount is an amount equal to the difference between the NAV of a Creation Unit and the market value of the Deposit Securities. 34 33 Authorized Participants are the only persons who may place orders to create and redeem Creation Units. Authorized Participants must be registered broker-dealers or other securities market participants, such as banks and other financial institutions that are exempt from registration as broker-dealers to engage in securities transactions, who are participants in DTC. *See supra* note 26. 34 While not typical, if the market value of the Deposit Securities is greater than the NAV of a Creation Unit, then the Balancing Amount will be a negative number, in which case the Balancing Amount will be paid by the Leveraged Fund to the purchaser, rather than vice-versa. The Balancing Amount will be determined shortly after 4 p.m. ET each business day. Although the Balancing Amount for most ETFs is a small amount reflecting accrued dividends and other distributions, for the Leveraged Funds it is expected to be larger due to changes in the value of the Financial Instruments, *i.e.* , daily mark-to-market. For example, assuming a basket of Deposit Securities is valued at $5 million for a Leveraged Fund, if the market increases 10%, such basket of Deposit Securities would be equal to $5.5 million at 4 p.m. ET. The value of the Leveraged Fund Shares would increase by 20% or $1 million to equal $6 million total. With such basket of Deposit Securities valued at $5.5 million, the Balancing Amount would be $500,000. The values of the next day's basket of Deposit Securities and Balancing Amount are announced between 5:30 p.m. ET and 6 p.m. ET each business day. The Balancing Amount may, at times, represent a significant portion of the aggregate purchase price (or in the case of redemptions, the redemption proceeds). This may occur because the mark-to- market value of the Financial Instruments held by the Leveraged Funds, if any, is included in the Balancing Amount. The Transaction Fee is a fee imposed by the Funds on investors purchasing (or redeeming) Creation Units. The Trust will make available through DTC or the Distributor on each business day, prior to the opening of trading on the Exchange, the Deposit List indicating the Deposit Securities to be included in the Creation Deposit for each Leveraged Fund. 35 The Trust also will make available on a daily basis information about the previous day's Balancing Amount. 35 In accordance with the Advisor's Code of Ethics, personnel of the Advisor with knowledge about the composition of a Creation Deposit will be prohibited from disclosing such information to any other person, except as authorized in the course of their employment, until such information is made public. The Leveraged Funds reserve the right to permit or require an Authorized Participant to substitute an amount of cash and/or a different security to replace any prescribed Deposit Security. 36 Substitutions might be permitted or required, for example, because one or more Deposit Securities may be unavailable or may not be available in the quantity needed to make a Creation Deposit. Brokerage commissions incurred by a Fund to acquire any Deposit Security not part of a Creation Deposit are expected to be immaterial, and in any event, the Advisor may adjust the relevant Transaction Fee to ensure that the Fund collects the extra expense from the purchaser. Orders to create or redeem Shares of the Leveraged Funds must be placed through an Authorized Participant. 36 In certain limited instances, a Leveraged Fund may require a purchasing investor to purchase a Creation Unit entirely for cash. For example, on days when a substantial rebalancing of a Fund's portfolio is required, the Advisor might prefer to receive cash rather than in-kind stocks so that it has liquid resources on hand to make the necessary purchases. *Redemption of the Leveraged Funds.* Leveraged Fund Shares in Creation Unit-size aggregations will be redeemable on any day on which the New York Stock Exchange LLC is open in exchange for a basket of securities (“Redemption Securities”). As it does for Deposit Securities, the Trust will make available to Authorized Participants on each business day prior to the opening of trading a list of the names and number of shares of Redemption Securities for each Fund. The Redemption Securities given to redeeming investors in most cases will be the same as the Deposit Securities required of investors purchasing Creation Units on the same day. 37 Depending on whether the NAV of a Creation Unit is higher or lower than the market value of the Redemption Securities, the redeemer of a Creation Unit will either receive from or pay to the Leveraged Fund a cash amount equal to the difference (the “Redemption Balancing Amount”). In the typical situation where the Redemption Securities are the same as the Deposit Securities, this cash amount will be equal to the Balancing Amount described above in the creation process involving Deposit Securities. The redeeming investor also must pay to the Leveraged Fund a transaction fee (“Redemption Transaction Fee”) to cover transaction costs. 38 37 The Exchange states that there may be circumstances, however, where the Deposit Securities and Redemption Securities could differ. For example, if ABC stock were replacing XYZ stock in a Fund's Underlying Index at the close of a day's trading session, the day's prescribed Deposit Securities might include ABC, but not XYZ, while the day's prescribed Redemption Securities might include XYZ, but not ABC. 38 Redemptions in which cash is substituted for one or more Redemption Securities may be assessed a higher Redemption Transaction Fee to offset the transaction cost to the Fund of selling those particular Redemption Securities. This Redemption Transaction Fee is expected to be between $500 and $1,000. A Leveraged Fund has the right to make redemption payments in cash, in-kind, or a combination of each, provided that the value of its redemption payments equals the NAV of the Shares tendered at the time of tender, and the Redemption Balancing Amount. The Advisor currently contemplates that Creation Units of each Leveraged Fund will be redeemed principally in-kind with respect to the Redemption Securities and the Redemption Balancing Amount in cash largely resulting from the value of the Financial Instruments included in the Leveraged Fund. In order to facilitate delivery of Redemption Securities, each redeeming Authorized Participant, acting on behalf of a Beneficial Owner or DTC participant, must have arrangements with a broker-dealer, bank, or other custody provider in each jurisdiction in which any of the Redemption Securities are customarily traded. If neither the redeeming Beneficial Owner nor the Authorized Participant has such arrangements, and it is not otherwise possible to make other arrangements, the Leveraged Fund may, in its discretion, redeem the Leveraged Fund Shares for cash. *Creation and Redemption of the Inverse and Leveraged Inverse Funds.* The Inverse and Leveraged Inverse Funds will be purchased and redeemed entirely for cash. The use of an all-cash payment for the purchase and redemption of Creation Unit aggregations of these Funds is due to the limited transferability of Financial Instruments. *Placement of Creation Unit Purchases and Redemption Orders.* Creation Unit aggregations of the Funds will be purchased at NAV, *plus* a Transaction Fee. For the Inverse and Leveraged Inverse Funds, the purchaser will make a cash payment by 12 p.m. ET on the third business day following the date on which the request was made (T+3). For the Leveraged Funds, the purchaser will make an in-kind payment and/or all-cash payment generally on the third business day following the date on which the request was made (T+3). Purchasers of either Fund in Creation Unit aggregations must satisfy certain creditworthiness criteria established by the Advisor and approved by the Board, as provided in the participation agreement between the Trust and Authorized Participants. Creation Unit aggregations of the Leveraged Funds will be redeemable either in-kind or all in cash equal to the NAV, *less* the Redemption Transaction Fee. Creation Unit aggregations of the Inverse and Leveraged Inverse Funds will be redeemable for an all-cash payment equal to the NAV, *less* the Redemption Transaction Fee. A Leveraged Fund has the right to make redemption payments in cash, in-kind, or a combination of each, provided that the value of its redemption payments equals the NAV of the Shares tendered for redemption at the time of tender. 39 39 The Exchange states that, in the event an Authorized Participant has submitted a redemption request in good order and is unable to transfer all or part of a Creation Unit aggregation for redemption, a Fund may nonetheless accept the redemption request in reliance on the Authorized Participant's undertaking to deliver the missing Fund Shares as soon as possible, which undertaking shall be secured by the Authorized Participant's delivery and maintenance of collateral. The Authorized Participant's participant agreement will permit the Fund to buy the missing Shares at any time and will subject the Authorized Participant to liability for any shortfall between the cost to the Fund of purchasing the Shares and the value of the collateral. Dividends Dividends, if any, from net investment income will be declared and paid at least annually by each Fund in the same manner as by other open-end investment companies. Certain Funds may pay dividends on a semi-annual or more frequent basis. Distributions of realized securities gains, if any, generally will be declared and paid once a year. Dividends and other distributions on the Shares of each Fund will be distributed, on a *pro rata* basis to Beneficial Owners of such Shares. Dividend payments will be made through DTC and DTC participants to Beneficial Owners then of record with proceeds received from each Fund. The Trust will not make the DTC book-entry Dividend Reinvestment Service (the “Dividend Reinvestment Service”) available for use by Beneficial Owners for reinvestment of their cash proceeds, but certain individual brokers may make a Dividend Reinvestment Service available to Beneficial Owners. The SAI will inform investors of this fact and direct interested investors to contact such investor's broker to ascertain the availability and a description of such a service through such broker. The SAI will also caution interested Beneficial Owners that they should note that each broker may require investors to adhere to specific procedures and timetables in order to participate in the service, and such investors should ascertain from their broker such necessary details. Shares acquired pursuant to such service will be held by the Beneficial Owners in the same manner and subject to the same terms and conditions as those for original ownership of Shares. Brokerage commissions, charges, and other costs, if any, incurred in purchasing Shares in the secondary market with the cash from the distributions generally will be an expense borne by the individual Beneficial Owners participating in reinvestment through such service. Dissemination of Indicative Intra-Day Value
(IIV)In order to provide updated information relating to each Fund for use by investors, professionals, and persons wishing to create or redeem Shares, the Exchange will disseminate through the facilities of the CT:
(1)Continuously throughout the trading day, the market value of a Share; and
(2)at least every 15 seconds throughout the trading day, a calculation of the IIV, 40 as calculated by the Exchange (the “IIV Calculator”). Comparing these two figures helps an investor to determine whether, and to what extent, the Shares may be selling at a premium or a discount to NAV. 40 The IIV is also referred to by other issuers as an “Estimated NAV,” “Underlying Trading Value,” “Indicative Optimized Portfolio Value (IOPV),” and “Intraday Indicative Value” in various places such as the prospectus and marketing materials for different exchange-traded funds. The IIV Calculator will calculate an IIV for each Fund in the manner discussed below. The IIV is designed to provide investors with a reference value that can be used in connection with other related market information. The IIV does not necessarily reflect the precise composition of the current portfolio held by each Fund at a particular point in time. Therefore, the IIV on a per-Share basis disseminated during Amex 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. While the IIV that will be disseminated by Amex is expected to be close to the most recently calculated Fund NAV on a per-Share basis, it is possible that the value of the portfolio held by a Fund may diverge from the IIV during any trading day. In such case, the IIV will not precisely reflect the value of the Fund portfolio. *IIV Calculation for the Leveraged Funds.* The IIV Calculator will disseminate the IIV throughout the trading day for the Leveraged Funds holding equity securities and Financial Instruments, if any. The IIV Calculator will determine such IIV by:
(1)Calculating the estimated current value of equity securities held by such Fund by
(a)calculating the percentage change in the value of the Deposit Securities indicated on the Deposit List (as provided by the Trust) and applying that percentage value to the total value of the equity securities in the Fund as of the close of trading on the prior trading day (as provided by the Trust) or
(b)calculating the current value of all of the equity securities held by the Fund (as provided by the Trust);
(2)calculating the mark-to-market gains or losses from the Fund's total return equity swap exposure based on the percentage change to the Underlying Index and the previous day's notional values of the swap contracts, if any, held by such Fund (which previous day's notional value will be provided by the Trust);
(3)calculating the mark-to-market gains or losses from futures, options, and other Financial Instrument positions by taking the difference between the current value of those positions held by the Fund, if any (as provided by the Trust), and the previous day's value of such positions;
(4)adding the values from (1), (2), and
(3)above to an estimated cash amount provided by the Trust (which cash amount will include the swap costs), to arrive at a value; and
(5)dividing that value by the total number of Shares outstanding (as provided by the Trust) to obtain current IIV. *IIV Calculation for the Inverse and Leveraged Inverse Funds.* The IIV Calculator will disseminate the IIV throughout the trading day for the Inverse and Leveraged Inverse Funds. The IIV Calculator will determine such IIV by:
(1)Calculating the mark-to-market gains or losses from the Fund's total return equity swap exposure based on the percentage change to the Underlying Index and the previous day's notional values of the swap contracts, if any, held by such Funds (which previous day's notional value will be provided by the Trust);
(2)calculating the mark-to-market gains or losses from futures, options, and other Financial Instrument positions by taking the difference between the current value of those positions held by the Funds, if any (as provided by the Trust), and the previous day's value of such positions;
(3)adding the values from
(1)and
(2)above to an estimated cash amount provided by the Trust (which cash amount will include the swap costs), to arrive at a value; and
(4)dividing that value by the total number of Shares outstanding (as provided by the Trust) to obtain current IIV. Criteria for Initial and Continued Listing The Shares are subject to the criteria for initial and continued listing of Index Fund Shares under Amex Rule 1002A. A minimum of two Creation Units (at least 100,000 Shares) will be required to be outstanding at the start of trading. This minimum number of Shares required to be outstanding at the start of trading will be comparable to requirements that have been applied to previously listed series of Index Fund Shares. The Exchange believes that the proposed minimum number of Shares outstanding at the start of trading is sufficient to provide market liquidity. The Exchange, pursuant to Amex Rule 1002A(a)(ii), will obtain a representation from the Trust (for each Fund), prior to listing, that the NAV per Share for each Fund will be calculated daily and made available to all market participants at the same time. The Exchange represents that the Trust is required to comply with Rule 10A-3 under the Act 41 for the initial and continued listing of the Shares. 41 17 CFR 240.10A-3 (setting forth listing standards relating to audit committees). Amex Trading Rules and Trading Halts The Shares are equity securities subject to Amex rules governing the trading of equity securities. The Exchange states that Amex Rule 154-AEMI(c)(ii) 42 and Amex Rule 190, Commentary .04, 43 apply to Index Fund Shares listed on the Exchange, including the Shares, and the Shares will be deemed “Eligible Securities,” as defined in Amex Rule 230, for purposes of the Intermarket Trading System Plan. 42 Amex Rule 154-AEMI(c)(ii) provides that stop and stop limit orders to buy or sell a security, the price of which is derivatively priced based upon another security or index of securities, may be elected by a quotation. The Exchange states that the Shares are eligible for this treatment. 43 Commentary .04 states that nothing in Amex Rule 190(a) should be construed to restrict a specialist registered in a security issued by an investment company from purchasing and redeeming the listed security or securities that can be subdivided or converted into the listed security from the issuer as appropriate to facilitate the maintenance of a fair and orderly market. In addition to other factors that may be relevant, the Exchange may consider factors such as those set forth in Amex Rule 918C(b) in exercising its discretion to halt or suspend trading in Index Fund Shares. These factors include, but are not limited to,
(1)The extent to which trading is not occurring in securities comprising an Underlying Index and/or the Financial Instruments of a Fund, or
(2)whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In the case of Financial Instruments held by a Fund, the Exchange represents that a notification procedure will be implemented so that timely notice from the Advisor is received by the Exchange when a particular Financial Instrument is in default or shortly to be in default. Notification from the Advisor will be made by phone, facsimile, or e-mail. The Exchange would then determine on a case-by-case basis whether a default of a particular Financial Instrument justifies a trading halt of the Shares. Trading in Shares of the Funds will also be halted if the circuit breaker parameters under Amex Rule 117 have been reached. Amex Rule 1002A(b)(ii) sets forth the trading halt parameters with respect to Index Fund Shares. If the IIV or the Underlying Index value applicable to that series of Index Fund Shares is not being disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IIV or the Underlying Index value occurs. If the interruption to the dissemination of the IIV or the Underlying Index value persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. Information Circular The Exchange, in an Information Circular to Exchange members and member organizations, prior to the commencement of trading, will inform members and member organizations regarding the application of Commentary .06 of Amex Rule 1000A-AEMI to the Funds. 44 The Information Circular will further inform members and member organizations of the prospectus and/or product description delivery requirements that apply to the Funds. 45 44 *See supra* note 30. 45 The Exchange states that the any product description used in reliance on Section 24(d) of the 1940 Act (15 U.S.C. 80a-24(d)) will comply with all representations and conditions set forth in the Application. *See id.* The Information Circular will also provide guidance with regard to member firm compliance responsibilities when effecting transactions in the Shares and highlighting the special risks and characteristics of the Funds and Shares as well as applicable Exchange rules. In particular, the Information Circular will set forth the requirements relating to Commentary .05 to Amex Rule 411 (Duty to Know and Approve Customers). Specifically, the Information Circular will remind members of their obligations in recommending transactions in the Shares so that members have a reasonable basis to believe that:
(1)The recommendation is suitable for a customer given reasonable inquiry concerning the customer's investment objectives, financial situation, needs, and any other information known by such member; and
(2)that the customer can evaluate the special characteristics, and is able to bear the financial risks, of such investment. In connection with the suitability obligation, the Information Circular will also provide that members make reasonable efforts to obtain the following information:
(a)The customer's financial status;
(b)the customer's tax status;
(c)the customer's investment objectives; and
(d)such other information used or considered to be reasonable by such member or registered representative in making recommendations to the customer. In addition, the Information Circular will disclose that the procedures for purchases and redemptions of Shares in Creation Units are described in each Fund's prospectus and SAI, and that Shares are not individually redeemable, but are redeemable only in Creation Unit aggregations or multiples thereof. Surveillance The Exchange represents that its surveillance procedures are adequate to properly monitor the trading of the Shares. Specifically, Amex will rely on its existing surveillance procedures governing Index Fund Shares. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. 2. Statutory Basis The proposed rule change is consistent with section 6(b) of the Act, 46 in general, and furthers the objectives of section 6(b)(5), 47 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 regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, and, in general, to protect investors and the public interest. 46 15 U.S.C. 78f(b). 47 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange believes the proposed rule change will impose no burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange states that no written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)As the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which Amex consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. The Commission is considering granting accelerated approval of the proposed rule change at the end of a 15-day comment period. 48 48 In the Exchange Notice, Amex requested accelerated approval of this proposed rule change prior to the 30th day after the date of publication of the notice of the filing thereof. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-Amex-2007-74 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-2007-74. 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, 100 F. Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the 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-2007-74 and should be submitted on or before August 29, 2007. 49 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 49 Florence E. Harmon, Deputy Secretary. [FR Doc. E7-15818 Filed 8-13-07; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2007-28945] Medical Review Board Public Meeting AGENCY: Federal Motor Carrier Safety Administration (FMCSA) United States Department of Transportation (DOT). ACTION: Notice of Medical Review Board
(MRB)Public Meeting. SUMMARY: FMCSA announces that the MRB will hold its next meeting on October 15, 2007. The meeting will provide the public an opportunity to observe and participate in MRB deliberations about the revision and development of Federal Motor Carrier Safety Regulation (FMCSR) medical standards, in accordance with the Federal Advisory Committee Act (FACA). DATES: The MRB meeting will be held from 8 a.m.-11:30 p.m. on October 15, 2007. Please note the preliminary agenda for this meeting in the SUPPLEMENTARY INFORMATION section of this notice for specific information. ADDRESSES: The meeting will take place at the U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Oklahoma Room, Washington, DC 20590-0001. The public must enter through the west entrance and comply with building security procedures, including provision of appropriate identification prior to being accompanied by a Federal employee to the meeting room. You may submit comments identified by DOT Docket Management System
(DMS)Docket Number FMCSA-2007-28945 using any of the following methods: • *Web Site:* *http://dmses.dot.gov/submit.* 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, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., 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 number 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 W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., 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 acknowledgment 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 U.S. Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; April 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. *Information on Services for Individuals With Disabilities:* For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Kaye Kirby at 202-366-4001. SUPPLEMENTARY INFORMATION: The preliminary agenda for the meeting includes: 0800-0805 Call to Order, Introduction and Agenda Review 0805-0830 MRB Business, Action Items, Neurological Diseases Part I (Seizure Disorders), Sleep Disorders 0830-0900 Expert Panel Recommendations (Invited Speaker) 0900-0945 Deliberations on Evidence Report and Panel Comments 0945-1015 MRB Questions, Other Medical Topics 1015-1130 Public Comment Period 1130 Adjourn Breaks will be announced on meeting day and may be adjusted according to schedule changes, and other meeting requirements. Background The U.S. Secretary of Transportation announced on March 7, 2006, the five medical experts who serve on FMCSA's MRB. Section 4116 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-59) requires the Secretary of Transportation with the advice of the MRB to “establish, review, and revise medical standards for operators of Commercial Motor Vehicles
(CMVs)that will ensure that the physical condition of operators is adequate to enable them to operate the vehicles safely.” FMCSA is planning updates to the physical qualification regulations of CMV drivers, and the MRB will provide the necessary science-based guidance to establish realistic and responsible medical standards. The MRB operates in accordance with the Federal Advisory Committee Act
(FACA)as announced in the **Federal Register** (70 FR 57642, October 3, 2005). The MRB is charged initially with the review of all current FMCSA medical standards (49 CFR 391.41), as well as proposing new science-based standards and guidelines to ensure that drivers operating CMVs in interstate commerce, as defined in CFR 390.5, are physically capable of doing so. Meeting Participation Attendance is open to the interested public, including medical examiners, motor carriers, drivers, and representatives of medical and scientific associations. Written comments for this MRB meeting will also be accepted beginning on August 14, 2007 and continuing until October 30, 2007, and should include the docket number that is listed in the ADDRESSES section. During the MRB meeting, oral comments will be accepted on a first come, first serve basis as requestors register at the meeting, but may be limited depending on how many persons wish to comment. The comments must directly address relevant medical and scientific issues on the MRB meeting agenda. For more information, please view the following Web site: *http:// www.mrb.fmcsa.dot.gov.* Issued on: August 8, 2007. Larry W. Minor, Associate Administrator for Policy and Program Development. [FR Doc. E7-15838 Filed 8-13-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2007-28117] Motor Carrier Safety Advisory Committee Public Meeting AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of Motor Carrier Safety Advisory Committee Meeting. SUMMARY: FMCSA announces that the Motor Carrier Safety Advisory Committee (MCSAC) will hold a committee meeting. The meeting is open to the public. Establishment of the advisory committee was announced in the **Federal Register** (71 FR 67200), on November 20, 2006. DATES: The MCSAC meeting will be held from 1 p.m. to 4 p.m. on September 13, 2007, and 9 a.m. to 4 p.m. on September 14, 2007. ADDRESSES: The meeting will take place at the U.S. Department of Transportation, Conference Center, West Wing, First Floor, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Mr. Greg Parks, Acting Chief, Strategic Planning and Program Evaluation Division, Office of Policy Plans and Regulation, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590,
(202)366-5370, *FMCSAregs@dot.gov.* SUPPLEMENTARY INFORMATION: I. Background Section 4144 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-59) required the Secretary of the U.S. Department of Transportation to establish in FMCSA, a Motor Carrier Safety Advisory Committee. The advisory committee provides advice and recommendations to the FMCSA Administrator on motor carrier safety programs and motor carrier safety regulations. The advisory committee operates in accordance with the Federal Advisory Committee Act (5 U.S.C. App 2). The FMCSA Administrator appointed 15 members to serve on the advisory committee on March 5, 2007. II. Meeting Participation The meeting is open to the public and FMCSA invites participation by all interested parties, including motor carriers, drivers, and representatives of motor carrier associations. As a general matter, the committee will make one hour available for public comments on Friday, September 14, 2007, 3 p.m. to 4 p.m. Individuals wishing to address the committee should sign up on the public comment sign-in sheet before noon on September 14, 2007. The time available will be reasonably divided among those who have signed up, but no one will have more than 15 minutes. Individuals wanting to present written materials to the committee should submit written comments identified by DOT Docket Management System
(DMC)Docket Number FMCSA-2007-28117 using any of the following methods: • *Web Site:* *http://dmses.dot.gov/submit.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, 1200 New Jersey Avenue, S.E., Room W12-140, 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. For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Karen Lynch at 202-366-8997, or *Karen.Lynch@dot.gov.* Issued on: August 8, 2007. Larry W. Minor, Associate Administrator for Policy and Program Development. [FR Doc. E7-15837 Filed 8-13-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2007-27801] Qualification of Drivers; Exemption Applications; Diabetes AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of applications for exemptions from the diabetes standard; request for comments. SUMMARY: FMCSA announces receipt of applications from 52 individuals for exemptions from the prohibition against persons with insulin-treated diabetes mellitus
(ITDM)operating commercial motor vehicles
(CMVs)in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate commercial motor vehicles in interstate commerce. DATES: Comments must be received on or before September 13, 2007. ADDRESSES: You may submit comments identified by Department of Transportation
(DOT)Docket Management System
(DMS)Docket Number FMCSA-2007-27801 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, 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the ground level of the West Building, 1200 New Jersey Avenue, SE., 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 on-line instructions for submitting comments. All submissions must include the Agency name and docket number 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 under Regulatory Notices. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., 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 acknowledgment 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 DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477; April 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, *fmcsamedical@dot.gov,* FMCSA, Department of Transportation, 1200 New Jersey Avenue, SE., Room W64-224, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Background 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. The 52 individuals listed in this notice have recently requested an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by the statute. Qualifications of Applicants Scott M. Aitcheson Mr. Aitcheson, age 53, has had ITDM since 2000. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Aitcheson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A Commercial Driver's License
(CDL)from Michigan. Arnulfo Amador Mr. Amador, 61, has had ITDM since 1990. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Amador meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable nonproliferative diabetic retinopathy. He holds a chauffeur's license from Indiana. Larry G. Becker Mr. Becker, 37, has had ITDM since 1980. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Becker meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Arkansas. Alan R. Buck Mr. Buck, 58, has had ITDM since 1991. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Buck meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York. Fredrick J. Caldarelli, III Mr. Caldarelli, 58, has had ITDM since 2002. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Caldarelli meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas. Eddie A. Camacho Mr. Camacho, 42, has had ITDM since 2006. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Camacho meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California. Richard W. Clark Mr. Clark, 57, has had ITDM since 2006. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Clark meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois. William N. Climer Mr. Climer, 67, has had ITDM since 2002. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Climer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois. William J. Compton Mr. Compton, 36, has had ITDM since 2002. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Compton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class O operator's license from Michigan, which allows him to drive any motor vehicle with a gross vehicle rating of less than 26,001 pounds. Andrew J. Corrao, Jr. Mr. Corrao, 56, has had ITDM since 2006. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Corrao meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Massachusetts. Edward W. Cream Mr. Cream, 61, has had ITDM since 2005. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cream meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio. Brian R. Current Mr. Current, 58, has had ITDM since 2005. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Current meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa. Mark A. Davis Mr. Davis, 42, has had ITDM since 1974. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Davis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Arkansas. Todd J. Donnelly Mr. Donnelly, 41, has had ITDM since 2005. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Donnelly meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa. Tate D. Eakin Mr. Eakin, 36, has had ITDM since 2006. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Eakin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas. Anthony W. Espinosa Mr. Espinosa, 58, has had ITDM since 2005. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Espinosa meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Missouri. Gary L. Everett Mr. Everett, 60, has had ITDM since 2005. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Everett meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Ohio. Carmine J. Fossile Mr. Fossile, 36, has had ITDM since 1991. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fossile meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Massachusetts. Steve A. Ging Mr. Ging, 49, has had ITDM since 2006. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ging meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Texas. Jeffrey M. Halavanja Mr. Halavanja, 46, has had ITDM since 2004. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Halavanja meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Pennsylvania. James K. Hay Mr. Hay, 45, has had ITDM since 2006. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hay meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio. Vincent D. Hoagland Mr. Hoagland, 67, has had ITDM since 1969. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hoagland meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from California. James M. Holland Mr. Holland, 49, has had ITDM since 1999. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Holland meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a CDL from Washington. Matthew S. Hooker Mr. Hooker, 33, has had ITDM since 1978. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hooker meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from Indiana. Gregory A. Iverson Mr. Iverson, 44, has had ITDM since 1986. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Iverson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Iowa. Bradley M. Johnson Mr. Johnson, 51, has had ITDM since 2007. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Johnson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Idaho. Michael A. Johnson Mr. Johnson, 30, has had ITDM since 1981. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Johnson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Missouri. Mark A. Jones Mr. Jones, 51, has had ITDM since 2000. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jones meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin. Michael J. Keating Mr. Keating, 25, has had ITDM since 2003. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Keating meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Illinois. Duane E. Koomen Mr. Koomen, 45, has had ITDM since 2005. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Koomen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Michigan. Bruce A. Larson Mr. Larson, 61, has had ITDM since 1975. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Larson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class C operator's license from Oregon. Curtis W. Mahler Mr. Mahler, 62, has had ITDM since 2006. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mahler meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from North Dakota. Hector Martinez Mr. Martinez, 39, has had ITDM since 2001. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Martinez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from California. Stacy M. McCroskey Mr. McCroskey, 35, has had ITDM since 1992. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McCroskey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class C operator's license from Georgia. Harold W. McCullough Mr. McCullough, 62, has had ITDM since 2006. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McCullough meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Nebraska. Bruce L. Mitchell Mr. Mitchell, 54, has had ITDM since 1999. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mitchell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Florida. Thomas L. Nesbit Mr. Nesbit, 64, has had ITDM since 2005. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Nesbit meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania. Michael D. O'Brien Mr. O'Brien, 47, has had ITDM since 2004. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. O'Brien meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Massachusetts. Charles A. Parker Mr. Parker, 40, has had ITDM since 1968. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Parker meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable proliferative diabetic retinopathy. He holds a Class A CDL from Utah. Jeremy K. Redger Mr. Redger, 21, has had ITDM since 1992. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Redger meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have *diabetic retinopathy. He holds a Class E operator's license from Louisiana* . Michael C. Sapp Mr. Sapp, 52, has had ITDM since 2004. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sapp meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Virginia. Norma L. Shoop Ms. Shoop, 60, has had ITDM since 1997. Her endocrinologist examined her in 2007 and certified that she has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Shoop meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2007 and certified that she has stable nonproliferative diabetic retinopathy. She holds a Class B CDL from Missouri. Chris W. Smaltz Mr. Smaltz, 45, has had ITDM since 2005. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smaltz meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Arizona. Rodney C. Thompson Mr. Thompson, 65, has had ITDM since 2000. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Thompson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2006 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from New Hampshire. Glen E. Townsend Mr. Townsend, 48, has had ITDM since 2000. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Townsend meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota. Randy E. Veit Mr. Veit, 47, has had ITDM since 1978. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Veit meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Illinois. Edwin C. Whitcomb Mr. Whitcomb, 60, has had ITDM since 2002. His endocrinologist examined him in 2006 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Whitcomb meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from North Dakota. James B. Wilson Mr. Wilson, 22, has had ITDM since 1999. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wilson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from California. Daniel M. Winn Mr. Winn, 42, has had ITDM since 1998. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Winn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2007 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class C operator's license from Maryland. Steve D. Workman Mr. Workman, 51, has had ITDM since 2000. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Workman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2006 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio. Derek J. Wright Mr. Wright, 24, has had ITDM since 2000. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wright meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Alabama. Donald W. Yeager Mr. Yeager, 38, has had ITDM since 2006. His endocrinologist examined him in 2007 and certified that he has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years; understands diabetes management and monitoring; and has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Yeager meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2007 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania. Request for Comments In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the Notice. FMCSA notes that Section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441). 1 The revision must provide for individual assessment of drivers with diabetes mellitus, and be consistent with the criteria described in section 4018 of the Transportation Equity Act for the 21st Century (49 U.S.C. 31305). 1 Section 4129(a) refers to the 2003 Notice as a “final rule.” However, the 2003 Notice did not issue a “final rule,” but did establish the procedures and standards for issuing exemptions for drivers with ITDM. Section 4129 requires:
(1)The elimination of the requirement for three years of experience operating CMVs while being treated with insulin; and
(2)the establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV. In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 Notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136(e). Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary. FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 Notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 Notice, except as modified in the Notice in the **Federal Register** on November 8, 2005 (70 FR 67777), remain in effect. Dated: August 8, 2007. Larry W. Minor, Associate Administrator for Policy and Program Development. [FR Doc. E7-15833 Filed 8-13-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration Petition for Waiver of Compliance In accordance with Title 49 Code of Federal Regulations
(CFR)sections 211.9 and 211.41, notice is hereby given that the Federal Railroad Administration
(FRA)has received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief. Union Pacific Railroad Company [Docket Number FRA-2006-25862] Union Pacific Railroad Company
(UP)seeks amendment of a waiver for relief of sanctions from certain sections of 49 CFR Part 240. On October 17, 2006, FRA's Safety Board granted relief of sanctions from 49 CFR Sections 240.117(e)(1) through (4), 49 CFR sections 240.305(a)(1) through
(4)and
(6)(excluding supervisors as indicated), and 49 CFR section 240.307. See Docket FRA-2006-25862. These sections of the regulation relate to punitive actions that are required to be taken against locomotive engineers for the violation of certain railroad operating rules. Refer to 49 CFR Part 240 for a detailed listing of these sections. UP and the employees of UP's North Platte Service Unit, represented by the Brotherhood of Locomotive Engineers and Trainmen
(BLET)and the United Transportation Union (UTU), requested the waiver to facilitate participation in a Close Call Reporting System
(C3RS)demonstration pilot project sponsored by FRA's Office of Research and Development. The C3RS Demonstration Pilot Project was one of the action items included in FRA's Rail Safety Action Plan announced on January 25, 2006. UP, BLET, and UTU developed and signed an implementing memorandum of understanding
(IMOU)for the C3RS project, based on FRA's March 2005, overarching memorandum of understanding with railroad labor organizations, as a first step in commencing the demonstration pilot project. The project involves approximately 1,200 yard and road service employees headquartered in North Platte, NE. The IMOU was sent to FRA for consideration and acceptance on August 28, 2006, and was incorporated by reference in the FRA Safety Board's October 17, 2006 decision letter on this waiver. As referenced in the IMOU, certain close calls may be properly reported by the employee(s) involved and later discovered by UP, for example, through subsequent retrospective analysis of locomotive event recorder data, etc. In order to encourage employee reporting of close calls, the IMOU contains provisions to shield the reporting employee from UP discipline. UP, BLET, and UTU also wanted to shield the reporting employee(s) and UP from punitive sanctions that would otherwise arise as provided in selected sections of 49 CFR Part 240 for properly reported close-call events as defined in the C3RS IMOU. The waiver petition was requested for the duration of the C3RS demonstration project (5 years from implementation or until the demonstration project is completed or parties to the IMOU withdraw as described in the IMOU, whichever occurs first). In a letter dated July 5, 2007, UP petitioned for a modification of the waiver in the form of an amendment to the IMOU. In accordance with the Board's October 17, 2006 decision letter, any material modifications to the IMOU must be approved by the FRA Safety Board. UP, BLET, and UTU now request amendment of the initial IMOU by adding the following: Amendment No. 1 to the Confidential Close Call Reporting System Implementing Memorandum of Understanding (C3RS/IMOU) dated August 17, 2006 Pursuant to the provision of Article 13 of the C3RS/IMOU dated August 17, 2006, the Parties to the IMOU have approved the following modifications: In Article 1C. Add yardmasters to the list of UTU crafts; In Article 2. Modify Milepost
(MP)locations and add additional trackage to reflect the actual boundaries of the North Platte Service Unit. The Parties to the Agreement have indicated their approval of these modifications by signing this document. Due to oversight in securing signatures on the original C3RS/IMOU, there are three additional signatories to this Amendment. Parties also recognize that the FRA must review and take appropriate action on a separate request to modify the waiver issued in support of this IMOU. Article 1. Parties to C3RS/IMOU (Parties) A. Union Pacific Railroad Company (UPRR, a common carrier railroad) B. Brotherhood of Locomotive Engineers and Trainmen (BLET): the duly recognized collective bargaining representative of the craft of UPRR locomotive engineers working within the boundaries of the North Platte Service Unit of the UPRR (North Platte Service Unit). C. United Transportation Union (UTU): the duly recognized collective bargaining representative of the crafts of UPRR conductors, trainmen, switchmen, yardmasters, and hostlers working within the boundaries of the North Platte Service Unit. D. Federal Railroad Administration (FRA): an administration in the Department of Transportation charged with carrying out all railroad safety laws of the United States per 49 U.S.C. Section 103 and 49 CFR I.49. E. Bureau of Transportation Statistics (BTS): the Federal Agency responsible for maintaining the security of the confidential database and all materials reviewed by the Peer Review Teams. Article 2. PURPOSE The parties are voluntarily entering into this C3RS/IMOU and implementing this C3RS Demonstration project for the North Platte Service Unit with the intent to improve the safety of railroad operations on the North Platte Service Unit. The boundaries of the North Platte Service Unit are defined as Milepost
(MP)506.35 Sidney Subdivision, MP 150 Kearney Subdivision, MP 156.9 on the South Morrill Subdivision to MP 271.4 on the Powder River Subdivision and MP 521.1 to MP 528.1 on the Casper Industrial Lead on the Powder River Subdivision, Yoder Subdivision, MP 146 Marysville Subdivision, and MP 81.1 Julesburg Subdivision. This pilot program is effective only in the boundaries as specified above and does not include any area outside these boundaries. The parties have determined that based on over 20 years experience of airlines' and foreign railroads' close call reporting systems, safety may be improved by implementing a system of voluntary, confidential, discipline-free reporting of close call events. The purposes of this reporting are the accumulation of data on currently unreported or underreported unsafe events, analysis of reported data by peer review teams, identification of corrective actions by the Parties to remedy identified safety hazards, provision of assistance by FRA in its safety oversight role, and publication of general trends and statistics by government agencies. Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request. All communications concerning this waiver petition should identify the appropriate docket number (e.g. Waiver Petition Docket Number FRA-2006-24646) and may be submitted by one of the following methods: *Web site: http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic site; *Fax:* 202-493-2251; *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; or; *Hand Delivery:* 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. Documents in the public docket are also available for review and copying on the Internet at the docket facility Web site at *http://dms.dot.gov.* Communications received within 30 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.—5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at *http://dms.dot.gov.* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78). The Statement may also be found at *http://dms.dot.gov.* Issued in Washington, DC on August 8, 2007. Grady C. Cothen, Jr., Deputy Associate Administrator for Safety Standards and Program Development. [FR Doc. E7-15945 Filed 8-13-07; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA-2007-28692] Notice of Tentative Decision That Certain Nonconforming Vehicles Are Eligible for Importation AGENCY: National Highway Traffic Safety Administration, DOT. ACTION: Request for comments on tentative decision that certain nonconforming vehicles are eligible for importation. SUMMARY: This notice requests comments on a tentative decision by the National Highway Traffic Safety Administration (NHTSA) that certain vehicles that do not comply with all applicable Federal motor vehicle safety standards, but that are certified by their original manufacturer as complying with all applicable Canadian motor vehicle safety standards, are eligible for importation into the United States. The vehicles in question either
(1)Are substantially similar to vehicles that were certified by their manufacturers as complying with the U.S. safety standards and are capable of being readily altered to conform to those standards, or
(2)have safety features that comply with, or are capable of being altered to comply with, all U.S. safety standards. DATES: The closing date for comments on this tentative decision is September 13, 2007. ADDRESSES: Comments should refer to the docket number and notice number, and be submitted to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. [Docket hours are from 10 a.m. to 5 p.m.]. FOR FURTHER INFORMATION CONTACT: Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151). SUPPLEMENTARY INFORMATION: Background Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards (FMVSS) shall be refused admission into the United States unless NHTSA has decided, either pursuant to a petition from the manufacturer or registered importer or on its own initiative,
(1)That the nonconforming motor vehicle is substantially similar to a motor vehicle of the same model year that was originally manufactured for importation into and sale in the United States and certified by its manufacturer as complying with all applicable FMVSS, and
(2)that the nonconforming motor vehicle is capable of being readily altered to conform to all applicable FMVSS. Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle to be admitted into the United States if NHTSA decides that its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test data or such other evidence as NHTSA decides to be adequate. Most Recent Decision On September 19, 2002, NHTSA published a notice in the **Federal Register** at 67 FR 59107 announcing that it had made a final decision on its own initiative that certain motor vehicles that are certified by their original manufacturer as complying with all applicable Canadian motor vehicle safety standards (CMVSS) are eligible for importation into the United States. The notice identified these vehicles as:
(a)All passenger cars manufactured on or after September 1, 2002 and before September 1, 2007, that, as originally manufactured, are equipped with an automatic restraint system that complies with Federal Motor Vehicle Safety Standard (FMVSS) Nos. 208 *Occupant Crash Protection,* and that comply with FMVSS No. 201 *Occupant Protection in Interior Impact, 214 Side Impact Protection,* 225 *Child Restraint Anchorage Systems,* and 401 *Internal Trunk Release;* and
(b)All multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating
(GVWR)of 4,535 kg (10,000 lb) or less that were manufactured on or after September 1, 2002, and before September 1, 2007, that, as originally manufactured, comply with FMVSS Nos. 201, 202 *Head Restraints,* 208, 214, and 216 *Roof Crush Resistance,* and insofar as it is applicable, with FMVSS No. 225. In the notice of tentative decision that preceded the final decision, published on August 6, 2002 at 67 FR 50979, the agency explained that the identified standards incorporated requirements that were not adopted, in whole or in part, by Canada. The notice proposed limiting the import eligibility decision to vehicles manufactured before September 1, 2007 so that the agency could assess, prior to that date, whether any other requirements were added to the FMVSS that Canada chose not to adopt. As previously discussed, the final eligibility decision published on September 19, 2002 included this limitation. Additional Discrepancies Between U.S. and Canadian Standards Since the last final eligibility decision covering Canadian-certified vehicles was issued, additional requirements have been proposed or added to several FMVSS that have yet to be adopted by Canada. Those requirements are as follows: FMVSS No. 110 *Tire Selection and Rims for Motor Vehicles with a GVWR of 4,536 kilograms (10,000 pounds) or less:* This standard was amended to include new vehicle labeling and performance requirements, effective September 1, 2007, that have yet to be adopted by Canada. FMVSS No. 118 *Power-Operated Window, Partition, and Roof Panel Systems:* Paragraph S5.2(b) of the U.S. standard has an optional requirement for automatic reversal systems that has yet to be adopted by Canada. Paragraph S5.3 has a requirement for proximity detection using infrared reflectance that also has yet to be adopted by Canada. Paragraph S6 specifies requirements for actuation devices that will apply to vehicles manufactured on or after September 1, 2008 and that also have yet to be adopted by Canada. FMVSS No. *126 Electronic Stability Control Systems:* There is no Canadian equivalent to this standard, which will be phased in for vehicles manufactured on or after September 1, 2008 and apply to 100 percent of passenger cars and multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating
(GVWR)of 4,535 kg (10,000 lb) or less manufactured on or after September 1, 2011. FMVSS No. 138 *Tire Pressure Monitoring Systems:* Canada has no requirement for these components. By its terms, the standard does not apply to vehicles with dual wheels on an axle. FMVSS No. 202a *Head Restraints:* There is no Canadian equivalent to the requirements of this standard, which become mandatory for vehicles manufactured on or after September 1, 2008. FMVSS No. 206 *Door Locks and Door Retention Components:* Proposed revisions which, if adopted, will become effective on September 1, 2008, may be in disharmony with the Canadian standard. Those revisions would add requirements relating to displacement to the test procedure for sliding doors, add a requirement for a secondary latch position on double doors, and prevent rear door locks from being released by the same action used to release the door. FMVSS No. 213 *Child Restraint Systems:* The U.S. standard measures head injury criteria in a manner that differs from that of the Canadian standard. The U.S. standard also prescribes a compression deflection test that is not found in the Canadian standard. In light of these discrepancies, NHTSA has tentatively decided to require, as a condition for import eligibility, that Canadian-certified passenger cars and Canadian-certified multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2007 comply, as originally manufactured, with FMVSS Nos. 110, 118 and 213, and, insofar as it is applicable, with FMVSS No. 138. The agency has also tentatively decided to require, as a condition for import eligibility, that Canadian-certified passenger cars and Canadian-certified multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2008 comply, as originally manufactured, with FMVSS Nos. 110, 118, 202a, 206, 213, and, insofar as it is applicable, with FMVSS No. 138. We have also tentatively decided to require, as a condition for import eligibility, that Canadian-certified passenger cars and Canadian-certified multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2011 comply, as originally manufactured, with FMVSS Nos. 110, 118, 126, 202a, 206, 213, and, insofar as it is applicable, with FMVSS No. 138. Future Cut-Off Date To avoid the need to amend any existing eligibility decisions in the event that there are any further requirements imposed under the FMVSS that are not carried into the corresponding CMVSS, NHTSA has tentatively decided to limit its import eligibility decisions for Canadian-certified passenger cars and for multipurpose passenger vehicles, trucks, and buses with a GVWR of 10,000 pounds or less to such vehicles manufactured before September 1, 2012. Prior to that date, the agency will assess whether there is a need to condition the import eligibility of any subsequently manufactured Canadian-certified vehicles on compliance with any additional FMVSS. The agency intends to issue new decisions covering vehicles manufactured on or after September 1, 2012 within a sufficient period before that date is reached. Tentative Decision Pending its review of any comments submitted in response to this notice, NHTSA hereby tentatively decides that:
(a)All passenger cars manufactured on or after September 1, 2007, and before September 1, 2008, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 201, 208, 213, 214, 225, and 401, and, insofar as it is applicable, with FMVSS No. 138;
(b)All passenger cars manufactured on or after September 1, 2008 and before September 1, 2011 that, as originally manufactured, comply with FMVSS Nos. 110, 118, 201, 202a, 206, 208, 213, 214, 225, and 401, and, insofar as it is applicable, with FMVSS No. 138;
(c)All passenger cars manufactured on or after September 1, 2011 and before September 1, 2012 that, as originally manufactured, comply with FMVSS Nos. 110, 118, 126, 201, 202a, 206, 208, 213, 214, 225, and 401, and, insofar as it is applicable, with FMVSS No. 138;
(d)All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2007 and before September 1, 2008, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 201, 208, 213, 214, and 216, and insofar as they are applicable, with FMVSS Nos. 138 and 225;
(e)All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2008 and before September 1, 2011, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 201, 202a, 206, 208, 213, 214, and 216, and insofar as they are applicable, with FMVSS Nos. 138 and 225; and
(f)All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2011 and before September 1, 2012, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 126, 201, 202a, 206, 208, 213, 214, and 216, and insofar as they are applicable, with FMVSS Nos. 138 and 225, that are certified by their original manufacturer as complying with all applicable Canadian motor vehicle safety standards, are eligible for importation into the United States on the basis that either: 1. They are substantially similar to vehicles of the same make, model, and model year originally manufactured for importation into and sale in the United States, or originally manufactured in the United States for sale therein, and certified as complying with all applicable FMVSS, and are capable of being readily altered to conform to all applicable FMVSS, or 2. They have safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS. Vehicle Eligibility Number The importer of a vehicle admissible under any final decision must indicate on the form HS-7 accompanying entry the appropriate vehicle eligibility number indicating that the vehicle is eligible for entry. Vehicle Eligibility Number VSA-80 is currently assigned to Canadian-certified passenger cars and Vehicle Eligibility Number VSA-81 is currently assigned to Canadian-certified multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less. If this tentative decision is made final, all passenger cars admissible under the final decision will be assigned vehicle eligibility number VSA-80, and all multipurpose passenger vehicles, trucks, and buses admissible under the final decision will be assigned vehicle eligibility number VSA-81. Comments Section 30141(b) of Title 49, U.S. Code requires NHTSA to provide a minimum period for public notice and comment on decisions made on its own initiative consistent with ensuring expeditious, but full consideration and avoiding delay by any person. NHTSA believes that a comment period of 30 days is appropriate for this purpose. Interested persons are invited to submit written comments on this tentative decision. Comments must refer to the docket and notice number identified at the beginning of this notice and be submitted by any of the following methods: a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. b. By hand delivery to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays. c. Electronically by logging onto the Docket Management System Web site at *http://dms.dot.gov.* Click on “Help” to obtain instructions for filing the document electronically. Comments may be faxed to 1-202-493-2251, or may be submitted to the Federal eRulemaking Portal. To access the portal, go to *http://www.regulations.gov* and then follow the online instructions for submitting comments. All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of NHTSA's final decision will be published in the **Federal Register** pursuant to the authority identified below. Authority: 49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.8; delegation of authority at 49 CFR 1.50. Issued on: August 8, 2007. Nicole R. Nason, Administrator. [FR Doc. E7-15829 Filed 8-13-07; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA-2007-28970] Reliance Trailer Company, LLC; Receipt of Application for a Temporary Exemption From Federal Motor Vehicle Safety Standard No. 224 AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Notice of receipt of application for a temporary exemption from Federal Motor Vehicle Safety Standard No. 224, *Rear impact protection.* SUMMARY: In accordance with the procedures of 49 CFR Part 555, Reliance Trailer Company, LLC (Reliance) has applied for a Temporary Exemption from Federal Motor Vehicle Safety Standard (FMVSS) No. 224, *Rear impact protection* for three years. The basis of the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. We are publishing this notice of receipt of the application in accordance with the requirements of 49 U.S.C. 30113(b)(2), and have made no judgment on the merits of the application. DATES: You should submit your comments early enough to ensure that Docket Management receives them not later than September 13, 2007. ADDRESSES: You may submit comments (identified by the DOT DMS Docket Number in the heading of this document) by any of the following methods: • *Web Site:* *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site by clicking on “Help and Information” or “Help/Info.” • *Fax:* 1-202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590. • *Hand Delivery:* Room W12-140, West Building, Ground Floor, 1200 New Jersey Avenue, SE., 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 number for this notice. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. *Docket:* For access to the docket in order to read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room W12-140, West Building, Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; pages 19477-78) or you may visit *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Ms. Dorothy Nakama, Office of the Chief Counsel, National Highway Traffic Safety Administration, NCC-112, 1200 New Jersey Avenue, SE., Mail Code: W41-227, Washington, DC 20590 (Phone: 202-366-2992; Fax 202-366-3820). SUPPLEMENTARY INFORMATION: We are asking for comments on the application of Reliance Trailer Co., LLC (Reliance) for an exemption for three years from Federal Motor Vehicle Safety Standard (FMVSS) No. 224, *Rear Impact Protection.* As explained below, Reliance states that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. I. Background Information About Reliance Trailer Co., LLC Reliance, a small trailer manufacturer in Spokane, Washington, produces three different product lines: Reliance trailer products; Alloy trailer products; and Sturdyweld products. FMVSS No. 224 has required since 1998, that trailers with a gross vehicle weight rating
(GVWR)of 4536 kg or more, including Reliance's trailers, be fitted with a rear impact guard that conforms to FMVSS No. 224. Reliance petitions for a temporary exemption from FMVSS No. 224 for its Sturdyweld “Pony Trailer.” Reliance describes the “Pony Trailer” as having a chassis frame, attached to a tow point at the rear of a dump truck, and an accompanying open top body structure, comprised mainly of a front wall, two sidewalls, a floor, and a tailgate. The force of gravity unloads “Pony Trailers,” which are unloaded by lifting the front of the body, using an extendable hydraulic cylinder. Reliance states that it has been unable to successfully design or purchase an acceptable bumper that would both meet FMVSS No. 224 requirements and permit use of the “Pony Trailer” in conjunction with asphalt paving equipment. Reliance states its belief that developing and producing a compliant underride bumper is not the issue, but rather, that if a compliant bumper were to be installed on these “Pony Trailers,” the “Pony Trailers” would “be rendered virtually useless to the paving industry, the primary end user of this product.” Reliance states that asphalt lay-down equipment has a hopper, into which the “Pony Trailer” dumps hot mix. The “Pony Trailer” is a gravity feed dump trailer that dumps material into a hopper positioned directly behind the rear axle. This requires that Reliance's rear axle be set so that the back edge of the rear tire is 18 inches to 24 inches ahead of the rearmost point of the vehicle. Reliance states that anything behind the rear axle would interfere with the operation of the lay-down equipment. Reliance states that the area behind the rear axle is where the underride bumper would be placed. Any underride bumper would either have to be moved out of the way, or removed during the paving operation. Reliance states that it is unaware of any manufacturer of similar trailers that has been able to economically design or purchase a movable bumper that meets the requirements set forth by FMVSS No. 224. Reliance asks that the “Pony Trailer” receive a temporary exemption from FMVSS No. 224 for three years. II. Previous **Federal Register** Documents Addressing Reliance's Applications of Temporary Exemptions From FMVSS No. 224 On July 10, 2001 (66 FR 36032) (DOT Docket No. NHTSA-2001-10044), we published a notice of receipt of Reliance's application for temporary exemption from FMVSS No. 224 for its “dump body trailers.” We noted that Reliance's product appeared to be a horizontal discharge trailer that is used in the road construction industry to deliver asphalt and other road building materials to the construction site. However, the sole commenter on the notice, Dan Hill & Associates, stated that there is a “very substantial difference between controlled horizontal discharge semi-trailers and dumping-type semi-trailers.” Dan Hill stated that Reliance's trailer is a “dump body/gravity feed” trailer. Dan Hill distinguished this type of trailer as one that “can handle everything from 9-foot-plus slabs of concrete all the way down to sand, whereas the * * * controlled horizontal discharge products are limited to the transportation of hot-mix asphalt and, on occasion, other related processed road-building materials under 2″ in size.” Dan Hill stated that the horizontal discharge trailer manufacturers share a market of fewer than 400 unit sales per year. Dan Hill further stated that in contrast, the “dumping type trailer” manufacturers produce on average 7,451 units per year. Dan Hill cited as the source of its information, the U.S. Census Bureau, measurement period 1991 through 1997. In a **Federal Register** document published on October 21, 2001 (66 FR 53471) (DOT Docket No. NHTSA-2001-10044), we granted Reliance's application of temporary exemption from FMVSS No. 224 for “dump body trailers.” The basis of the grant was that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. Reliance was granted NHTSA Temporary Exemption No. 2001-6, which expired October 1, 2003. In a **Federal Register** document published on June 1, 2004 (69 FR 30989) (DOT Docket No. NHTSA-2001-10044), we granted Reliance's application of temporary exemption from FMVSS No. 224 for “dump body trailers.” The basis of the grant was that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. Reliance was granted NHTSA Temporary Exemption No. EX 04-01, which expired on June 1, 2006. III. 2004 Final Rule Excluding Horizontal Discharge Trailers From FMVSS No. 224 In a final rule published on November 19, 2004 (69 FR 67663) (DOT Docket No. NHTSA-2004-19033) we amended FMVSS No. 224 to exclude from its coverage, road construction controlled horizontal discharge trailers (RCC horizontal discharge trailers). RCC horizontal discharge trailers are used in the road construction industry to deliver asphalt to construction sites and gradually discharge asphalt mix into the paving machines overlaying the road surface. The agency decided to exclude RCC horizontal discharge trailers from FMVSS No. 224 after concluding that installation of rear impact guards would interfere with the RCC horizontal discharge trailers' intended function and is therefore impracticable due to the unique design and purpose of these vehicles. In public comments responding to a notice of proposed rulemaking
(NPRM)published on September 19, 2003, proposing to amend FMVSS No. 224 to exclude RCC horizontal discharge trailers, Reliance wrote to request that NHTSA amend the definition of an RCC horizontal discharge trailer to include gravity feed dump trailers. We declined Reliance's request for the following reasons: A RCC horizontal discharge trailer is a single-purpose vehicle designed to deliver and discharge asphalt materials into paving equipment in a controlled manner. Unlike the RCC horizontal discharge trailers, gravity feed dump trailers are versatile vehicles used for a multitude of tasks. Often, gravity feed dump trailers are used in a way that does not require controlled offloading or interaction with other equipment such as paving machines. Further, many gravity feed dump trailers fall under wheels back exception. Others can easily accommodate an underride guard. Because it is not impracticable for all gravity feed dump trailers to comply with FMVSS No. 224, the agency prefers to review the necessity of exempting gravity feed dump body trailers within the context of temporary exemptions pursuant to 49 CFR Part 555. In certain limited circumstances, the agency grants temporary exemptions to gravity feed dump trailer manufacturers based, in part, on impracticability of compliance. In fact, several gravity feed dump trailer manufacturers, including Reliance, have previously received exemptions from FMVSS No. 224.* * * The agency notes that gravity feed dump trailers are more common and represent a larger vehicle population compared to RCC horizontal discharge trailers. Accordingly, we are concerned that exempting a larger vehicle population from the requirements of the standard may lead to negative safety consequences exceeding those associated with exempting only the RCC horizontal discharge trailers. Because of a larger vehicle population and because of their versatility of use, the agency cannot conclude that a risk of an underride collision with a gravity feed dump trailer is negligible. Finally, we note that Reliance's request is outside the scope of the NPRM, and this rulemaking action cannot exempt other types of vehicles from the requirements of FMVSS No. 224 without further notice. (See 69 FR at 67666.)(Emphasis added.) Thus, in the November 2004 final rule, we declined to provide a blanket exemption from FMVSS No. 224 for gravity feed dump trailers. IV. Reliance's Current Application for a Temporary Exemption From FMVSS No. 224 The application, dated June 15, 2006, addressed in today's document is the third from Reliance requesting a temporary exemption from FMVSS No. 224. Pursuant to 49 CFR Part 555, *Temporary Exemption from Motor Vehicle Safety and Bumper Standards,* Reliance presents the following arguments in favor of its application. A. Reliance's Statement of Economic Hardship Reliance stated that during the past year, the “Pony Trailers” have accounted for 55 percent of its manufacturing profits. Reliance stated that if it must comply with FMVSS No. 224, the “Pony Trailers” would be “rendered inefficient” for the paving industry, the primary end user of the product, and Reliance would have no alternative than to discontinue production of the Sturdyweld product line. If Reliance discontinues production of the Sturdyweld product line, it will be forced to reduce its workforce, commensurate with the decline in overall sales and profits. This would cause approximately thirty employees to lose their jobs. With the discontinuation of the Sturdywell product line, and subsequent loss of profit, Reliance would fall well below profitability, and may ultimately be forced to cease operations. B. Reliance's Statement of Good Faith Efforts To Comply Reliance states that asphalt lay-down equipment has a hopper, into which the “Pony Trailer” dumps hot mix. Reliance states that the “Pony Trailer” is a gravity feed dump trailer that dumps material into a hopper positioned directly behind the rear axle. Reliance states that this requires that the “Pony Trailer's” rear axle be set so the back edge of the rear tire is 18 inches to 24 inches ahead of the rear most point of the trailer, and that anything behind the rear axle would interfere with the operation of the lay-down equipment. Reliance states that the area behind the rear axle is where the underride bumper would be, and provides an illustration. Reliance states that any underride bumper would either have to be moved out of the way, or removed during the paving operation. Reliance stated that it is unaware of any manufacturer of similar trailers that has been able to design economically or purchase a movable bumper that meets FMVSS No. 224 requirements. Reliance states that the 18 to 24 inches behind the rear tires required for paving is only slightly more than the 12 inches required to meet the axle back requirement. Reliance considers this to be a much safer position than the typical over the road freight hauling trailer, where the distance from the back of the tire to the end of the trailer can reach upwards of 110 inches if no rear impact guard were in place. Reliance states that it has continued to explore any options that the company believes would permit compliance with FMVSS No. 224 and allow operation of the “Pony Trailers” in conjunction with paving equipment. Reliance states that it has exhausted “all known possibilities.” Reliance stated that it will continue to work with its customers to look for a “viable solution” to this issue. C. Reliance's Statement of Public Interest Reliance states that it anticipates building fewer than 100 units of the “Pony Trailer” per year, and concludes that the quantity of “Pony Trailers” produced is very small in comparison to over the road type units. Reliance states that the typical hauls for “Pony Trailers” are short with a minimal amount of time spent traveling on highways, compared with most freight trailers. Reliance states that asphalt batch plants are typically set up close to the paving site, so that the asphalt can remain hot enough to flow from the trailer into the paver and spread effectively. Reliance states that the vehicles spend very little time traveling on busy roads to the job location. Reliance states that special access is often provided to the job site, reducing exposure to other vehicles, and that “at this time” it is unaware of any collisions or subsequent injuries related to the “Pony Trailer.” Reliance states that it is in the public interest to grant the temporary exemption so that it can continue as a profitable company, can allow Reliance to retain and expand its current workforce, thus stimulating the economy, and so that Reliance can continue to “produce a quality product” to serve the paving industry, and the needs of the American people by continuing safe and effective operation of paving equipment, to produce, new, as well as maintain existing roads for transportation needs. Authority: 49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and 501.8. Issued on: August 8, 2007. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E7-15836 Filed 8-13-07; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration Office of Hazardous Materials Safety; Notice of Delays in Processing Special Permits Applications AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: List of applications delayed more than 180 days. SUMMARY: In accordance with the requirements of 49 U.S.C. 5117(c), PHMSA is publishing the following list of special permit applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application. FOR FURTHER INFORMATION CONTACT: Delmer F. Billings, Director, Office of Hazardous Materials Special Permits and Approvals, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001,
(202)366-4535. Key to “Reason for Delay” 1. Awaiting additional information from applicant. 2. Extensive public comment under review. 3. Application is technically complex and is of significant impact or precedent-setting and requires extensive analysis. 4. Staff review delayed by other priority issues or volume of special permit applications. Meaning of Application Number Suffixes N—New application. M—Modification request. PM—Party to application with modification request. Issued in Washington, DC, on August 8, 2007. Delmer F. Billings, Director, Office of Hazardous Materials, Special Permits and Approvals. Modification to Special Permits Application number Applicant Reason for delay Estimated date of completion 10481-M M-1 Engineering Limited, Bradfrod, West Yorkshire 4 09-30-2007 14167-M Trinityrail, Dallas, TX 1,3,4 09-30-2007 8915-M Matheson Tri Gas, East Rutherford, NJ 4 08-31-2007 New Special Permit Applications Application number Applicant Reason for delay Estimated date of completion 14385-N Kansas City Southern Railway Company, Kansas City, MO 4 09-30-2007 14442-N Trinityrail, Dallas, TX 4 09-30-2007 14482-N Classic Helicopters, Woods Cross, UT 1 08-31-2007 14483-N WEW Westerwaelder Eisenwerk, Weitefeld Germany 4 10-31-2007 14470-N Marsulex, Inc., Springfield, OR 4 08-31-2007 14457-N Amtrol Alfa Metalomecanica SA, Portugal 4 09-30-2007 14436-N BNSF Railway Company, Topeka, KS 4 09-30-2007 14402-N Lincoln Composites, Lincoln, NE 1 12-31-2007 [FR Doc. 07-3974 Filed 8-13-07; 8:45 am]
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24 references not yet in our index
  • 10 CFR 2
  • 10 CFR 50
  • 39 CFR 3001.191(b)
  • 39 CFR 3001.192(b)
  • 39 CFR 3001.196(a)(6)
  • 39 CFR 3001.196(b)
  • 39 CFR 3001.196
  • 39 CFR 3001.9(a)
  • 39 CFR 3001.2
  • Pub. L. 91-190
  • 17 CFR 240.19
  • 17 CFR 270.2
  • 17 CFR 240.10
  • Pub. L. 109-59
  • 49 CFR 391.41
  • 49 CFR 391.41(b)(3)
  • 49 CFR 391.41(b)(10)
  • 49 CFR 240
  • 49 CFR 240.117(e)(1)
  • 49 CFR 240.305(a)(1)
  • 49 CFR 240.307
  • 49 CFR 593.8
  • 49 CFR 1.50
  • 49 CFR 555
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cites case law
Notices
Notice of Availability
C.F.R.§ 50.92
C.F.R.§ 2.309
C.F.R.§ 50.91
C.F.R.§ 50.44
C.F.R.§ 50.2
C.F.R.§ 51.22
C.F.R.§ 51.12
U.S.C.§ 4321
U.S.C.§ 78s
Cite10 CFR 2
Cite10 CFR 50
Cite39 CFR 3001.191(b)
Cites 44 · showing 12Cited by 0 across 0 sources
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