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Code · REGISTER · 2007-09-11 · NUCLEAR REGULATORY COMMISSION · Notices

Notices. Notice of application (“Application”) for exemption, pursuant to section 6(c) of the Investment Company Act of 1940, as amended (the “1940 Act”), from the provisions of sections 9(a), 13(a), 15(a) and 15(b) of the Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder

39,667 words·~180 min read·/register/2007/09/11/07-4428

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 August 16, 2007 to August 29, 2007. The last biweekly notice was published on August 28, 2007 (72 FR 49568). 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 email to *pdr@nrc.gov* . Detroit Edison Company, Docket No. 50-341, Fermi 2, Monroe County, Michigan *Date of amendment request:* June 12, 2007. *Description of amendment request:* The proposed amendment would revise Technical Specification 3.7.4 to add an Action Statement for two inoperable control center air conditioning
(AC)subsystems. The proposed new Action Statement would allow a finite time to restore one control center AC subsystem to operable status and require verification that control room temperature remains < 90 °F every 4 hours. *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 by a reference to a generic analysis published in the **Federal Register** on December 18, 2006 (71 FR 75774), which 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 is described in Technical Specification Task Force
(TSTF)Standard TS Change Traveler TSTF-477 adds an action statement for two inoperable control room subsystems. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed changes add an action statement for two inoperable control room subsystems. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed changes add an action statement for two inoperable control room subsystems. The equipment qualification temperature of the control room equipment is not affected. Future changes to the Bases or licensee-controlled document will be evaluated pursuant to the requirements of 10 CFR 50.59, “Changes, test and experiments”, to ensure that such changes do not result in more than a minimal increase in the probability or consequences of an accident previously evaluated. The proposed changes do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, and configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not adversely affect the ability of structures, systems and components
(SSCs)to perform their intended safety function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed changes do not affect the source term, containment isolation, or radiological consequences of any accident previously evaluated. Further, the proposed changes do not increase the types and the amounts of radioactive effluent that may be released, nor significantly increase individual or cumulative occupation/public radiation exposures. Therefore, the changes do not involve a significant increase in the probability or 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 proposed changes add an action statement for two inoperable control room subsystems. The changes do not involve a physical altering of the plant (i.e., no new or different type of equipment will be installed) or a change in methods governing normal plant operation. The requirements in the TS continue to require maintaining the control room temperature within the design limits. Therefore, the changes do 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 proposed changes add an action statement for two inoperable control room subsystems. Instituting the proposed changes will continue to maintain the control room temperature within design limits. Changes to the Bases or license[e-] controlled document are performed in accordance with 10 CFR 50.59. This approach provides an effective level of regulatory control and ensures that the control room temperature will be maintained within design limits. The proposed changes maintain sufficient controls to preserve the current margins 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:* David G. Pettinari, Legal Department, 688 WCB, Detroit Edison Company, 2000 2nd Avenue, Detroit, Michigan 48226-1279. *NRC Acting Branch Chief:* Travis L. Tate. Entergy Nuclear Operations, Inc., Docket No. 50-333, James A. FitzPatrick Nuclear Power Plant, Oswego County, New York *Date of amendment request:* July 17, 2007. *Description of amendment request:* The proposed changes would modify Technical Specification
(TS)requirements related to control room envelope
(CRE)habitability in TS 3.7.3, “Control Room Emergency Ventilation Air Supply (CREVAS) System” and adds new TS 5.5.14, “Control Room Envelope Habitability Program.” These changes were proposed by the industry's TS Task Force
(TSTF)and is designated TSTF-448. The NRC staff issued a notice of opportunity for comment in the **Federal Register** on October 17, 2006 (71 FR 61075), on possible amendments concerning TSTF-448, including a model safety evaluation and model no significant hazards
(NSHC)determination, using the consolidated line item improvement process (CLIIP). The NRC staff subsequently issued a notice of availability of the models for referencing in license amendment applications in the **Federal Register** on January 17, 2007 (72 FR 2022). The licensee affirmed the applicability of the following NSHC determination in its application dated July 17, 2007. *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 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 a 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. Based on the above, the NRC staff concludes that the proposed change presents 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. *Attorney for licensee:* Mr. William C. Dennis, Assistant General Counsel, Entergy Nuclear Operations, Inc., 440 Hamilton Avenue, White Plains, NY 10601. *NRC Branch Chief:* Mark G. Kowal. Entergy Nuclear Operations, Inc., Docket No. 50-333, James A. FitzPatrick Nuclear Power Plant, Oswego County, New York *Date of amendment request:* July 25, 2007. *Description of amendment request:* The proposed amendment would modify the Technical Specifications
(TS)by adding an Action statement to the Limiting Condition for Operation
(LCO)for TS 3.7.4, Control Room Air Conditioning
(AC)System. The new Action statement allows a finite time to restore one control room AC subsystem to operable status (72 hours) and requires verification that control room temperature remains less than 104 °F every 4 hours. The licensing basis control room air temperature for the James A. FitzPatrick Nuclear Power Plant (JAFNPP) is 104 °F. This change was proposed by the industry's TS Task Force
(TSTF)and is designated TSTF-477. The NRC staff issued a notice of opportunity for comment in the **Federal Register** on December 18, 2006 (71 FR 75774), on possible amendments concerning TSTF-477, including a model safety evaluation and model no significant hazards
(NSHC)determination, using the consolidated line item improvement process (CLIIP). The NRC staff subsequently issued a notice of availability of the models for referencing in license amendment applications in the **Federal Register** on March 26, 2007 (72 FR 14143). The licensee affirmed the applicability of the following NSHC determination in its application dated July 25, 2007. *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 Changes Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated The proposed change as described in Technical Specification Task Force
(TSTF)Standard TS Change Traveler TSTF-477 adds an action statement for two inoperable control room subsystems. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed changes add an action statement for two inoperable control room subsystems. The equipment qualification temperature of the control room equipment is not affected. Future changes to the Bases or licensee controlled document will be evaluated pursuant to the requirements of 10 CFR 50.59, “Changes, test and experiments,” to ensure that such changes do not result in more than a minimal increase in the probability or consequences of an accident previously evaluated. The proposed changes do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, and configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not adversely affect the ability of structures, systems and components
(SSCs)to perform their intended safety function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed changes do not affect the source term, containment isolation, or radiological consequences of any accident previously evaluated. Further, the proposed changes do not increase the types and the amounts of radioactive effluent that may be released, nor significantly increase individual or cumulative occupation/public radiation exposures. Therefore, the changes do not involve a significant increase in the probability or 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 Accident Previously Evaluated The proposed changes add an action statement for two inoperable control room subsystems. The changes do not involve a physical altering of the plant (i.e., no new or different type of equipment will be installed) or a change in methods governing normal plant operation. The requirements in the TS continue to require maintaining the control room temperature within the design limits. Therefore, the changes do 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 a Margin of Safety The proposed changes add an action statement for two inoperable control room subsystems. Instituting the proposed changes will continue to maintain the control room temperature within design limits. Changes to the Bases or license controlled document are performed in accordance with 10 CFR 50.59. This approach provides an effective level of regulatory control and ensures that the control room temperature will be maintained within design limits. The proposed changes maintain sufficient controls to preserve the current margins of safety. Based on the above, the NRC staff concludes that the proposed change presents 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. *Attorney for licensee:* Mr. William C. Dennis, Assistant General Counsel, Entergy Nuclear Operations, Inc., 440 Hamilton Avenue, White Plains, NY 10601. *NRC Branch Chief:* Mark G. Kowal. Entergy Gulf States, Inc., and Entergy Operations, Inc., Docket No. 50-458, River Bend Station, Unit 1 (RBS), West Feliciana Parish, Louisiana *Date of amendment request:* July 2, 2007. *Description of amendment request:* The proposed amendment would modify RBS technical specification
(TS)requirements for MODE change limitations in limiting condition for operation
(LCO)3.0.4 and surveillance requirement
(SR)3.0.4. The proposed TS changes are consistent with Revision 9 of Nuclear Regulatory Commission
(NRC)approved Industry TS Task Force
(TSTF)Standard TS Change Traveler, TSTF-359, “Increase Flexibility in MODE Restraints.” In addition, the proposed amendment would also change TS section 1.4, Frequency, Example 1.4-1, “Surveillance Requirements,” to accurately reflect the changes made by TSTF-359, which is consistent with NRC-approved TSTF-485, Revision 0, “Correct Example 1.4-1.” The NRC staff issued a notice of opportunity for comment in the **Federal Register** on August 2, 2002 (67 FR 50475), as part of the Consolidated Line Item Improvement Process (CLIIP), on possible amendments to revise the plant-specific TS to modify requirements for MODE change limitations in LCO 3.0.4 and SR 3.0.4. The NRC staff subsequently issued a notice of availability of the models for Safety Evaluation and No Significant Hazards Consideration Determination for referencing in license amendment applications in the **Federal Register** on April 4, 2003 (68 FR 16579). The licensee affirmed the applicability of the CLIIP, including the model No Significant Hazards Consideration Determination, in its application dated February 8, 2007. The proposed TS changes are consistent with NRC-approved Industry TSTF Standard TS change, TSTF-359, Revision 8, as modified by 68 FR 16579. TSTF-359, Revision 8, was subsequently revised to incorporate the modifications discussed in the April 4, 2003, **Federal Register** notice and other minor changes. TSTF-359, Revision 9, was subsequently submitted to the NRC on April 28, 2003, and was approved by the NRC on May 9, 2003. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the NRC staff's analysis of the issue of no significant hazards consideration is presented below: Criterion 1—The Proposed Changes Do Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated The proposed changes in TS Section 1.4, Frequency, Example 1.4-1, would accurately reflect the changes made by TSTF-359 in LCO 3.0.4 and SR 3.0.4, which are consistent with NRC-approved TSTF-485, Revision 0. These changes are considered administrative in that they modify the example to demonstrate the proper application of LCO 3.0.4 and SR 3.0.4. The requirements of LCO 3.0.4 and SR 3.0.4 are clear and are clearly explained in the associated Bases. As a result, modifying the example will not result in a change in usage of the TS. The proposed changes in LCO 3.0.4 and SR 3.0.4 allow entry into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS. The proposed changes do not adversely affect accident initiators or precursors, the ability of structures, systems, and components to perform their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. Being in a TS condition and the associated required actions are not an initiator of any accident previously evaluated. Therefore, the probability of an accident previously evaluated is not significantly increased. The consequences of an accident while relying on required actions as allowed by proposed LCO 3.0.4, are no different than the consequences of an accident while entering and relying on the required actions while starting in a condition of applicability of the TS. Therefore, the consequences of an accident previously evaluated are not significantly affected by these changes. The addition of a requirement to assess and manage the risk introduced by these changes will further minimize possible concerns. Therefore, these changes do not involve a significant increase in the probability or consequences of an accident previously evaluated. Criterion 2—The Proposed Changes Do Not Create the Possibility of a New or Different Kind of Accident From Any Previously Evaluated No new or different accidents result from utilizing the proposed changes. The proposed changes do not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. In addition, the changes do not impose any new or different requirements or eliminate any existing requirements. The proposed changes do not alter assumptions made in the safety analysis and are consistent with the safety analysis assumptions and current plant operating practice. Entering into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS, will not introduce new failure modes or effects and will not, in the absence of other unrelated failures, lead to an accident whose consequences exceed the consequences of accidents previously evaluated. The addition of a requirement to assess and manage the risk introduced by these changes will further minimize possible concerns. Thus, these changes do not create the possibility of a new or different kind of accident from an accident previously evaluated. Criterion 3—The Proposed Changes Do Not Involve a Significant Reduction in the Margin of Safety The proposed changes in TS section 1.4, Example 1.4-1, are considered administrative and will have no effect on the application of the TS requirements. Therefore, the margin of safety provided by the TS requirements is unchanged. The proposed changes in TS LCO 3.0.4 and SR 3.0.4 allow entry into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS. The RBS TS allows operation of the plant without the full complement of equipment through the TS conditions for not meeting the TS LCO. The risk associated with this allowance is managed by the imposition of required actions that must be performed within the prescribed completion times. The net effect of being in a TS LCO condition on the margin of safety is not considered significant. The proposed changes do not alter the required actions or completion times of the TS. The proposed changes allow TS conditions to be entered, and the associated required actions and completion times to be used in new circumstances. This use is predicated upon the licensee's performance of a risk assessment and the management of plant risk. The changes also eliminate current allowances for utilizing required actions and completion times in similar circumstances, without assessing and managing risk. The net change to the margin of safety is insignificant. Therefore, these changes do not involve a significant reduction in a margin of safety. The NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Terence A. Burke, Associate General Council—Nuclear Entergy Services, Inc., 1340 Echelon Parkway, Jackson, Mississippi 39213. *NRC Branch Chief:* Thomas G. Hiltz. Entergy Gulf States, Inc., and Entergy Operations, Inc., Docket No. 50-458, River Bend Station, Unit 1 (RBS), West Feliciana Parish, Louisiana *Date of amendment request:* July 16, 2007, as supplemented by letter dated August 7, 2007. *Description of amendment request:* The proposed amendment would revise the facility operating license (FOL), Paragraph 2.C, and technical specifications
(TS)3.7.2 and TS 5.5. The NRC staff issued a notice of opportunity for comment in the **Federal Register** on October 17, 2006 (71 FR 61075), on possible amendments to revise the plant-specific TS, to strengthen requirements regarding control room envelope
(CRE)habitability by changing the action and surveillance requirements associated with the limiting condition for operability requirements for the CRE emergency ventilation system. A new TS administrative controls program on CRE habitability is being added, including a model safety evaluation and model no significant hazards consideration
(NSHC)determination, using the consolidated line-item improvement process. The NRC staff subsequently issued a notice of availability of the models for referencing in license amendment applications in the **Federal Register** on January 17, 2007 (72 FR 2022). The licensee affirmed the applicability of the model NSHC determination in its application dated July 16, 2007, as supplemented by letter dated August 7, 2007. *Basis for proposed NSHC 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 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 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 proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Terence A. Burke, Associate General Council—Nuclear Entergy Services, Inc., 1340 Echelon Parkway, Jackson, Mississippi 39213. *NRC Branch Chief:* Thomas G. Hiltz. Entergy Gulf States, Inc., and Entergy Operations, Inc., Docket No. 50-458, River Bend Station, Unit 1 (RBS), West Feliciana Parish, Louisiana *Date of amendment request:* August 17, 2007. *Description of amendment request:* The proposed amendment would revise the date for performing the “Type A test” in the RBS technical specification
(TS)5.5.13, “Primary Containment Leak Rate Testing Program,” from “prior to December 14, 2007” to “April 14, 2008.” *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 amendment to TS 5.5.13 allows a one-time extension to the current interval for the ILRT [integrated leak rate test]. The current interval of 15 years 4 months, based on past performance, would be extended on a one-time basis to 15 years and 8 months from the date of the last test. The proposed extension to the ILRT cannot increase the probability of an accident since there are no design or operating changes involved and the test is not an accident initiator. The proposed extension of the test interval does not involve a significant increase in the consequences since analysis has shown that, the proposed extension of the ILRT and DWBT [drywell bypass test] frequency has a minimal impact on plant risk. 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 extension to the interval for the ILRT does not involve any design or operational changes that could lead to a new or different kind of accident from any accidents previously evaluated. The tests are not being modified, but are only being performed after a longer interval. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. 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. An evaluation of extending the ILRT DWBT surveillance frequency from once in 10 years to once in 15 years and 8 months has been performed using methodologies based on the approved ILRT methodologies. This evaluation assumed that the DWBT frequency was being adjusted in conjunction with the ILRT frequency. This analysis used realistic, but still conservative, assumptions with regard to developing the frequency of leakage classes associated with the ILRT and DWBT. The results from this conservative analysis indicates that the proposed extension of the ILRT frequency has a minimal impact on plant risk and 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:* Terence A. Burke, Associate General Council—Nuclear Entergy Services, Inc., 1340 Echelon Parkway, Jackson, Mississippi 39213. *NRC Branch Chief:* Thomas G. Hiltz. Entergy Operations Inc., Docket No. 50-382, Waterford Steam Electric Station, Unit 3, St. Charles Parish, Louisiana *Date of amendment request:* August 2, 2007. *Description of amendment request:* The proposed changes to the technical specifications
(TSs)will add new analytical methods and modify the containment average air temperature and safety injection tank level to support the implementation of Combustion Engineering 16 x 16 Next Generation Fuel
(NGF)as defined in Westinghouse Topical Report WCAP-16500-P beginning in Cycle 16 commencing after the spring 2008 refueling outage. The fuel design is intended to provide improved fuel reliability by reducing grid-to-rod fretting issues, improved fuel performance for high duty operation, and enhanced operating margin. *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. Core Operating Limits Report
(COLR)The proposed changes to the COLR TS are administrative in nature and have no impact on any plant configuration or system performance relied upon to mitigate the consequences of an accident. Changes to the calculated core operating limits may only be made using NRC approved methodologies, must be consistent with all applicable safety analysis limits, and are controlled by the 10 CFR 50.59 process. The proposed change will add the following topical reports to the list of referenced core operating analytical methods. WCAP-16500-P and Final Safety Evaluation
(SE)Westinghouse topical report WCAP-16500-P describes the methods and models that will be used to evaluate the acceptability of CE 16 x 16 NGF at CE plants. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. Prior to implementation of NGF the new core design will be analyzed with applicable NRC staff approved codes and methods. WCAP-12610-P-A and CENPD-404-P-A Addendum 1-A The proposed change allows the use of methods required for the implementation of Optimized ZIRLOTM clad fuel rods. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. WCAP-16523-P and Final Safety Evaluation This topical report describes the departure from nucleate boiling correlations that will be used to account for the impact of the CE 16 x 16 NGF fuel assembly design. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. Prior to implementation of NGF the new core design will be analyzed with applicable NRC staff approved codes and methods. CENPD-387-P-A The proposed addition of this topical report provides the departure from nucleate boiling
(DNB)correlation that will be used to evaluate the DNB impact of non-mixing vane grid spans for CE 16 x 16 standard and NGF assemblies Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. CENPD-132, Supplement 4-P-A, Addendum 1-P and Final Safety Evaluation The addendum provides an optional steam cooling model that can be used for Emergency Core Cooling System
(ECCS)Performance analyses to support the implementation of the CE 16 x 16 NGF fuel assembly design. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. Assumptions used for accident initiators and/or safety analysis acceptance criteria are not altered by the addition of these topical reports. Safety Injection Tank Water Level and Containment Average Air Temperature These values are used as inputs to the LBLOCA and SBLOCA analyses. The new limits ensure that the analyzed LBLOCA remain acceptable. The limits have no impact to the SBLOCA analysis results. The changes do not cause an increase in the probability of an accident or an increase in the dose consequences associated with a LBLOCA. 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. Core Operating Limits Report
(COLR)The proposed change identifies changes in the codes used to confirm the values of selected cycle-specific reactor physics parameter limits. The proposed change allows the use of methods required for the implementation of CE 16 x 16 NGF. The proposed addition of the referenced topical reports has no impact on any plant configurations or on system performance that is relied upon to mitigate the consequences of an accident. The change to the COLR is administrative in nature and does not result in a change to the physical plant or to the modes of operation defined in the facility license. WCAP-16500-P and Final Safety Evaluation The proposed change adds Westinghouse topical report WCAP-16500-P, which describes the methods and models that will be used to evaluate the acceptability of CE 16 x 16 NGF at CE plants. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. Prior to implementation of NGF, the new core design will be analyzed with applicable NRC staff approved codes and methods. WCAP-12610-P-A and CENPD-404-P-A Addendum 1-A The proposed change allows the use of methods required for the implementation of Optimized ZIRLOTM clad fuel rods. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. WCAP-16523-P and Final Safety Evaluation This topical report describes the departure from nucleate boiling correlations that will be used to account for the impact of the CE 16 x 16 NGF fuel assembly design. Entergy has demonstrated that the Limitations and Conditions associated with the SE will be met. CENPD-387-P-A The proposed addition of this topical report provides the departure from nucleate boiling
(DNB)correlation that will be used to evaluate the DNB impact of non-mixing vane grid spans for CE 16 x 16 standard and NGF assemblies. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. CENPD-132, Supplement 4-P-A, Addendum 1-P and Final Safety Evaluation The addendum provides an optional steam cooling model that can be used for ECCS Performance analyses to support the implementation of the CE 16 x 16 NGF fuel assembly design. Entergy has demonstrated that the Limitations and Conditions associated with the NRC SE will be met. Safety Injection Tank Water Level and Containment Average Air Temperature The safety injection tank
(SIT)system provides a passive means of adding a large quantity of borated water to the reactor core in the event of a LBLOCA. The SIT system serves no other purpose. Reducing the maximum volume will not create any new or different accidents. The containment average air temperature ensures that the peak cladding temperature and cladding oxidation remain within limits during a LBLOCA. The change in the minimum allowable containment average temperature does not create any new or different accidents. 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. Core Operating Limits Report
(COLR)The addition of the following topical reports to the list of analytical methods referenced in the COLR is administrative in nature: • WCAP-16500-P and Final Safety Evaluation for Westinghouse Electric Company (Westinghouse) Topical Report
(TR)WCAP-16500-P, Revision 0, “CE [Combustion Engineering] 16x16 Next Generation Fuel [(NGF)] Core Reference Report” • WCAP-12610-P-A and CENPD-404-P-A Addendum 1-A • WCAP-16523-P and Final Safety Evaluation for Westinghouse Electric Company (Westinghouse) Topical Report (TR), WCAP-16523-P, “Westinghouse Correlations WSSV and WSSV-T for Predicting Critical Heat Flux in Rod Bundles with Side-Supported Mixing Vanes” • CENPD-387-P-A • CENPD-132, Supplement 4-P-A, Addendum 1-P and Final Safety Evaluation for Westinghouse Electric Company (Westinghouse) Topical Report
(TR)CENPD-132 Supplement 4-P-A, Addendum 1-P, “Calculative Methods for the CE [Combustion Engineering] Nuclear Power Large Break LOCA Evaluation Model—Improvement to 1999 Large Break LOCA EM Steam Cooling Model for Less Than 1 in/sec Core Reflood” Safety Injection Tank Water Level and Containment Average Air Temperature The change to the allowable range for these two parameters does not reduce a margin of safety. The changes add to the margin of safety and provide assurance that the peak cladding temperature and cladding oxidation remain within limits. 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:* Terence A. Burke, Associate General Council—Nuclear Entergy Services, Inc., 1340 Echelon Parkway, Jackson, Mississippi 39213. *NRC Branch Chief:* Thomas G. Hiltz. Exelon Generation Company, LLC, Docket Nos. STN 50-454 and STN 50-455, Byron Station, Unit Nos. 1 and 2, Ogle County, Illinois; Docket Nos. STN 50-456 and STN 50-457, Braidwood Station, Units 1 and 2, Will County, Illinois *Date of amendment request:* July 31, 2007. *Description of amendment request:* The proposed amendment would revise Technical Specification 5.5.2, “Primary Coolant Sources Outside Containment,” to clarify the intent of refueling cycle intervals (i.e., 18 month intervals) with respect to system integrated leak test requirements and to add a statement that the provisions of Surveillance Requirement 3.0.2 are applicable. *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 amendment affects only the interval at which integrated system leak tests are performed, not the effectiveness of the integrated system leak test requirements. Revising the integrated system leak test requirements from “at refueling cycle interval or less” to “at least once per 18 months” is considered to be an administrative change because Braidwood Station, Units 1 and 2, and Byron Station, Units 1 and 2, operate on 18-month fuel cycles. Incorporation of the allowance to extend the 18-month interval by 25%, as allowed by Surveillance Requirement
(SR)3.0.2, does not significantly degrade the reliability that results from performing the Surveillance at its specified Frequency. Test intervals are not considered as initiators of any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased by the proposed amendment. Technical Specification
(TS)5.5.2 continues to require the performance of periodic integrated system leak tests. Therefore, accident analysis assumptions will still be verified. As a result, the consequences of any accident previously evaluated are not significantly increased. Based on the above discussion, the proposed changes do not involve an 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 amendment affects only the interval at which integrated system leak tests are performed; they do not alter the design or physical configuration of the plant. No changes are being made to Braidwood Station, Units 1 and 2, and Byron Station, Units 1 and 2, that would introduce any new accident causal mechanisms. Based on this evaluation, the proposed 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 amendment does not change the design or function of plant equipment. The proposed amendment does not significantly reduce the level of assurance that any plant equipment will be available to perform its function. The proposed amendment provides operating flexibility without significantly affecting plant operation. Based on this evaluation, 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 requested amendments involve no significant hazards consideration. *Attorney for licensee:* Mr. Bradley J. Fewell, Associate General Counsel, Exelon Generation Company, LLC, 4300 Winfield Road, Warrenville, IL 60555. *NRC Branch Chief:* Russell Gibbs. Exelon Generation Company, LLC, Docket Nos. 50-373 and 50-374, LaSalle County Station, Units 1 and 2, LaSalle County, Illinois *Date of amendment request:* June 18, 2007. *Description of amendment request:* The proposed amendments would revise Technical Specification 3.7.5, “Control Room Area Ventilation Air Conditioning
(AC)System,” to add an Action Statement for two inoperable control room area ventilation AC subsystems. *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 proposed change is described in Technical Specification Task Force
(TSTF)Standard TS Change Traveler TSTF-477 adds an action statement for two inoperable control room subsystems. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed changes add an action statement for two inoperable control room subsystems. The equipment qualification temperature of the control room equipment is not affected. Future changes to the Bases or licensee-controlled document will be evaluated pursuant to the requirements of 10 CFR 50.59, “Changes, Test and Experiments,” to ensure that such changes do not result in more than a minimal increase in the probability or consequences of an accident previously evaluated. The proposed changes do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, and configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not adversely affect the ability of structures, systems and components to perform their intended safety function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed changes do not affect the source term, containment isolation, or radiological consequences of any accident previously evaluated. Further, the proposed changes do not increase the types and the amounts of radioactive effluent that may be released, nor significantly increase individual or cumulative occupation/public radiation exposures. Therefore, the changes do not involve a significant increase in the probability or 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 proposed changes add an action statement for two inoperable control room subsystems. The changes do not involve a physical altering of the plant (i.e., no new or different type of equipment will be installed) or a change in methods governing normal plant operation. The requirements in the TS continue to require maintaining the control room temperature within the design limits. Therefore, the changes do 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 proposed changes add an action statement for two inoperable control room subsystems. Instituting the proposed changes will continue to maintain the control room temperature within design limits. Changes to the Bases or license controlled document are performed in accordance with 10 CFR 50.59. This approach provides an effective level of regulatory control and ensures that the control room temperature will be maintained within design limits. The proposed changes maintain sufficient controls to preserve the current margins of safety. Based upon the reasoning above, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration. *Attorney for licensee:* Mr. Bradley J. Fewell, Associate General Counsel, Exelon Generation Company, LLC, 4300 Winfield Road, Warrenville, IL 60555. *NRC Branch Chief:* Russell Gibbs. 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:* June 27, 2007. *Description of amendment request:* The proposed amendment would remove the operability and surveillance requirements for the drywell air temperature and suppression chamber air temperature instrumentation from the Limerick Generating Station
(LGS)technical specifications. This will allow a relocation of these requirements to the LGS technical requirements manual, a licensee controlled document. *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 failure of the drywell air temperature or suppression chamber air temperature instrumentation is not assumed to be an initiator of any analyzed event in the UFSAR [Updated Final Safety Analysis Report]. The proposed changes do not alter the physical design of this instrumentation or any other plant structure, system, or component. The proposed changes relocate the drywell air temperature and suppression chamber air temperature instrumentation operability and surveillance requirements from the Limerick Generating Station
(LGS)Technical Specifications
(TS)to a licensee-controlled document under the control of 10 CFR 50.59 [Title 10 of the Code of Federal Regulations (10 CFR) Part 50, Section 50.59]. The proposed changes conform to NRC regulatory requirements regarding the content of plant TS as identified in 10 CFR 50.36, and also the guidance as approved by the NRC in NUREG-1433, “Standard Technical Specifications-General Electric Plants, BWR/4.” Therefore, the proposed changes do 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 changes relocate the drywell air temperature and suppression chamber air temperature instrumentation operability and surveillance requirements from the LGS TS to a licensee-controlled document under the control of 10 CFR 50.59. The proposed changes do not alter the physical design, safety limits, or safety analysis assumptions associated with the operation of the plant. Accordingly, the proposed changes do not introduce any new accident initiators, nor do they reduce or adversely affect the capabilities of any plant structure, system, or component in the performance of their safety function. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated. 3. Do the proposed changes involve a significant reduction in a margin of safety? Response: No. The subject instrumentation does not provide primary information required to permit operators to take specific manually controlled actions for which no automatic control is provided, and that are required for safety systems to accomplish their safety functions for design basis accident events. The instrumentation provides only drywell air temperature indication and suppression chamber air temperature indication, and does not provide an input to any automatic safety function. Operability and surveillance requirements will be established in a licensee-controlled document to ensure the reliability of drywell air temperature and suppression chamber air temperature instrumentation capability. Changes to these requirements will be subject to the controls of 10 CFR 50.59, providing the appropriate level of regulatory control. Therefore, the proposed changes do 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. FirstEnergy Nuclear Operating Company, *et. al.* , Docket No. 50-346, Davis-Besse Nuclear Power Station, Unit No. 1, Ottawa County, Ohio *Date of amendment request:* April 12, 2007. *Description of amendment request:* The proposed amendment request would make the operating license and technical specification changes necessary to allow an increase in the rated thermal power from 2772 megawatts thermal
(MWt)to 2817 MWt (approximately 1.63 percent), based on the use of Caldon, Inc. Leading Edge Flow Meter CheckPlus TM System instrumentation to improve the accuracy of the plant power calorimetric measurement. *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. Under contract to the FirstEnergy Nuclear Operating Company, AREVA NP Inc. performed evaluations of the Davis-Besse Nuclear Power Station (DBNPS) Nuclear Steam Supply System
(NSSS)and balance of plant systems, components, and analyses that could be affected by the proposed change to the licensed power level. A power uncertainty calculation was performed and the effect of increasing core thermal power by 1.63 percent to 2817 MWt on the DBNPS design and licensing basis was evaluated. The evaluations determined that all structures, systems and components will continue to be capable of performing their design function at the proposed uprated power level of 2817 MWt. An evaluation of the accident analyses demonstrates that the applicable analysis acceptance criteria continue to be met with the proposed changes. No accident initiators are affected by the power uprate and no challenges to any plant safety barriers are created by any of the proposed changes. The proposed change to the licensed power level does not affect the release paths, the frequency of release, or the analyzed source term for any accidents previously evaluated in the DBNPS Updated Final Safety Analysis Report (UFSAR). Systems, structures, and components required to mitigate transients will continue to be capable of performing their design functions with the proposed changes, and thus were found acceptable. The reduced uncertainty in the power calorimetric measurement ensures that applicable accident analyses acceptance criteria will continue to be met with operation at the proposed power level of 2817 MWt. Analyses performed to assess the effects of mass and energy remain valid. The source term used to assess radiological consequences has been reviewed and determined to bound operation at the proposed power level. The proposed change to the RPS high flux setpoint Allowable Value does not alter the typical manner in which systems or components are operated, and, therefore, will not result in an increase in the probability of an accident. The proposed High Flux Trip Allowable Values preserve assumptions of current accident analyses at the higher thermal power allowed by the proposed amendment, irrespective of the source of Heat Balance calculation input data. This proposed change does not alter any assumption previously made in the radiological consequence evaluations, nor does it affect mitigation of the radiological consequences of an accident previously evaluated. Therefore, this proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. The addition of references to Note 10 to Functional Unit 2, High Flux, in Table 4.3-1 is administrative and does not impact the probability or consequences of an accident previously evaluated because its inclusion does not involve an accident initiator or impact any radiological analyses. This change is made to incorporate NRC guidance in a manner previously determined to be acceptable in DBNPS License Amendment No. 274. The proposed change to the volume of the condensate storage tanks does not alter the typical manner in which the system or component is operated, and, therefore, will not result in a significant increase in the probability of an accident. The condensate storage tanks are not accident initiators. The proposed change preserves the assumptions previously made in the radiological consequence evaluations and the radiological consequences of accidents previously evaluated. Therefore, this proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed changes to the Core Operating Limits Report
(COLR)portion of the Administrative Controls Section of the TS are administrative and do not impact the probability or consequences of an accident previously evaluated because their inclusion do not involve accident initiators or impact any radiological analyses. These changes are made to include the NRC-approved documents pertaining to the Caldon Leading Edge Flow Meter. In summary, none of the proposed changes 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. No new accident scenarios, failure mechanisms, or single failures are introduced as a result of any of the proposed changes. Use of the Caldon CheckPlus TM System has been analyzed, and failures of the system will have no adverse effect on any safety-related system or any systems, structures, and components required for transient mitigation. Systems, structures, and components previously required for the mitigation of a transient continue to be capable of fulfilling their intended design functions. The proposed changes have no significant adverse affect on any safety-related structures, systems or components and do not significantly change the performance or integrity of any safety-related system. The proposed changes do not adversely affect any current system interfaces or create any new interfaces that could result in an accident or malfunction of a different kind than previously evaluated. Operating at a core power level of 2817 MWt does not create any new accident initiators or precursors. The reduced uncertainty in the power calorimetric measurement ensures that applicable accident analyses acceptance criteria continue to be met, to support operation at the proposed core power level of 2817 MWt. Credible malfunctions continue to be bounded by the current accident analyses of record or recent evaluations that demonstrate that applicable criteria will continue to be met with the proposed changes. The proposed change to the RPS high flux setpoint Allowable Value does not introduce new accident scenarios, failure mechanisms or single failures. The change does not alter the manner in which plant systems or components are operated. The proposed High Flux Trip Allowable Values preserve assumptions of current accident analyses at the higher thermal power allowed by the proposed amendment, irrespective of the source of Heat Balance calculation input data. Therefore, this proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated. The addition of a reference to Note 10 to Functional Unit 2, High Flux, in Table 4.3-1 is administrative and will not create the possibility of a new or different kind of accident from any accident previously evaluated because its inclusion will not change the manner in which any equipment is operated. The proposed change to the volume of the condensate storage tanks does not introduce new accident scenarios, failure mechanisms or single failures. Therefore, this proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed changes to the COLR portion of the Administrative Controls Section of the TS are administrative and will not create the possibility of a new or different kind of accident from any accident previously evaluated because their inclusion will not change the manner in which any equipment is operated. In summary, none of the proposed changes will 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 margins of safety associated with the power uprate are those pertaining to core thermal power. These include those associated with the fuel cladding, Reactor Coolant System pressure boundary, and containment barriers. An engineering evaluation of the proposed 1.63 percent increase in core thermal power was performed. The power uprate required revised NSSS design thermal and hydraulic parameters to be established to serve as the basis for all of the NSSS analyses and evaluations. This engineering review identified the design modifications necessary to accommodate the revised NSSS design conditions. Evaluations determined that the NSSS systems and components will continue to operate satisfactorily at the uprated power level with these modifications and the proposed changes. The NSSS accident analyses were evaluated at the uprated power level. In all cases, the evaluations demonstrate that the applicable analyses acceptance criteria will continue to be met with approval of the proposed changes. As such, the margins of safety will continue to be bounded by the analyses for all the changes being proposed. Therefore, none of the proposed changes will 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:* David W. Jenkins, Attorney, FirstEnergy Corporation, Mail Stop A-GO-15, 76 South Main Street, Akron, OH 44308. *NRC Branch Chief:* Russell Gibbs. Florida Power Corporation, et. al., Docket No. 50-302, Crystal River Unit 3 Nuclear Generating Plant (CR-3), Citrus County, Florida *Date of amendment request:* April 25, 2007, as supplemented by letter dated June 28, 2007. *Description of amendment request:* The proposed amendment would change the operating license and technical specifications to increase the maximum power level from 2568 megawatts thermal
(MWt)to 2609 MWt. The approximately 1.6 percent increase in power level would be achieved by use of the Caldon Leading Edge Flowmeter CheckPlus system to accurately measure power level. *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 not involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed change will increase the maximum core power level from 2568 MWt to 2609 MWt. This increase will only require adjustments and calibrations of existing plant instrumentation and control systems. The only equipment upgrades necessary for this uprate are spool pieces containing multiple ultrasonic flow instruments, which will be installed in each feedwater line, as well as more accurate instrumentation for feedwater pressure and steam pressure and temperature. Indication and control functions will continue to be performed by the currently installed feedwater instrumentation. Nuclear steam supply systems
(NSSS)and balance-of-plant
(BOP)systems and components that could be affected by the proposed change have been evaluated using revised NSSS design parameters based on a core power level of 2609 MWt. The results of these evaluations, which used well-defined analysis input assumptions/parameter values and currently approved analytical techniques, indicate that CR-3 systems and components will continue to function within their design parameters and remain capable of performing their required safety functions at 2609 MWt. Since the revised NSSS parameters remain within the design conditions of the Reactor Coolant System
(RCS)functional specification, the proposed change will not result in any new design transients or adversely affect the current CR-3 design transient analyses. The accidents analyzed in Chapter 14 of the CR-3 Final Safety Analysis Report
(FSAR)have been reviewed for the impact of the uprate. Based on the power levels assumed in the current safety analyses, it has been determined that all FSAR and supporting analyses bound the uprate. This includes the dose calculations for the design basis radiological accidents, which assume a power level of 2619 MWt (2568 MWt plus an assumed 2 percent measurement uncertainty). Since the proposed change relies on less than 0.4% uncertainty, the assumed power level of 100.4% of 2609 MWt remains 2619 MWt. Therefore, analyses performed at this power remain bounding.
(2)Does not create the possibility of a new or different kind of accident from any accident previously evaluated. As discussed above, the only equipment upgrades necessary for this uprate are spool pieces containing multiple ultrasonic flow instruments, which will be installed in each feedwater line, as well as more accurate instrumentation for feedwater pressure and steam pressure and temperature. All CR-3 systems and components will continue to function within their design parameters and remain capable of performing their required safety functions. The proposed change does not impact current CR-3 design transients or introduce any new transients. Equipment failure modes are expected to be the same as for existing instruments. Protective and control functions will continue to be performed by the currently installed feedwater instrumentation. Therefore, the proposed change will not create the possibility of a new or different kind of accident from any accident previously evaluated.
(3)Does not involve a significant reduction in a margin of safety Challenges to the fuel, RCS pressure boundary and containment were evaluated for uprate conditions. Core analyses show that the implementation of the power uprate will continue to meet the current nuclear design basis. Impacts to components associated with RCS pressure boundary structural integrity, and factors such as pressure/temperature limits, vessel fluence, and pressurized thermal shock
(PTS)were determined to be bounded by current analyses. As discussed above, all systems will continue to operate within their design parameters and remain capable of performing their intended safety functions following implementation of the proposed change. Finally, the current CR-3 safety analyses, including the design basis radiological accident dose calculations, bound the uprate. Therefore, this change does not involve a significant reduction in the margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* David T. Conley, Associate General Counsel II—Legal Department, Progress Energy Service Company, LLC, Post Office Box 1551, Raleigh, North Carolina 27602. *NRC Branch Chief:* Thomas H. Boyce. Nine Mile Point Nuclear Station (NMPNS), LLC, Docket No. 50-220, Nine Mile Point Nuclear Station Unit No. 1 (NMP1), Oswego County, New York *Date of amendment request:* July 12, 2007. *Description of amendment request:* The proposed amendment would modify Technical Specification
(TS)requirements related to control room envelope
(CRE)habitability in TS 3.4.5, “Control Room Air Treatment System,” and TS 6.5, “Programs and Manuals.” The proposed changes are consistent with TS Task Force
(TSTF)change 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 line item improvement process. The licensee affirmed the applicability of the model no significant hazards consideration determination in its application. *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 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 [a] 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 proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Mark J. Wetterhahn, Esquire, Winston & Strawn, 1700 K Street, NW., Washington, DC 20006. *NRC Branch Chief:* Mark G. Kowal. Nine Mile Point Nuclear Station (NMPNS), LLC, Docket No. 50-220, Nine Mile Point Nuclear Station Unit No. 1 (NMP1), Oswego County, New York *Date of amendment request:* July 23, 2007. *Description of amendment request:* The proposed amendment would revise Technical Specification
(TS)section 3.1.1, “Control Rod System,” to incorporate a provision that should the rod worth minimizer
(RWM)become inoperable before a reactor startup is commenced or before the first 12 control rods have been withdrawn, startup would be allowed to continue. This provision would rely on the RWM function being performed manually and would require a double check of compliance with the control rod program by a second licensed operator or other qualified member of the technical staff. The use of this allowance would be limited to one startup in the last calendar year. *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 allows plant startup to proceed if the RWM becomes inoperable prior to withdrawing the first 12 control rods. The relevant design basis accident is the control rod drop accident (CRDA), which involves multiple failures to initiate the event. This change does not increase the probability of occurrence of any of the failures that are necessary for a CRDA to occur. Use of the RWM or the alternate use of a second qualified individual to ensure the correct control rod withdrawal sequence is not in itself an accident initiator, and adding the new startup allowance does not involve any plant hardware changes or new operator actions that could serve to initiate a CRDA. The proposed change will have no adverse effect on plant operation, or the availability or operation of any accident mitigation equipment. Also, since the control rod program will continue to be enforced by either the RWM or verification by a second qualified individual, the initial conditions of the CRDA radiological consequence analysis presented in the Updated Final Safety Analysis Report are not affected. Therefore, there will be no 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 introduce any new modes of plant operation and will not result in a change to the design function or operation of any structure, system, or component that is used for accident mitigation. The proposed change allows plant startup to proceed if the RWM becomes inoperable prior to withdrawing the first 12 control rods, with verification of control rod movement in the correct sequence performed by a second qualified individual. This change does not result in any credible new failure mechanisms, malfunctions, or accident initiators not considered in the design and licensing basis. This change does not affect the ability of safety-related systems and components to perform their intended safety functions. Therefore, the proposed change will 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 allows plant startup to proceed if the RWM becomes inoperable prior to withdrawing the first 12 control rods. The proposed change will have no adverse effect on plant operation or equipment important to safety. The relevant design basis accident is the [CRDA], which involves multiple failures to initiate the event. The CRDA analysis consequences and related initial conditions remain unchanged when invoking the proposed change. The plant response to the CRDA will not be affected and the accident mitigation equipment will continue to function as assumed in the accident analysis. Therefore, there will be no significant reduction in a 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 request involves no significant hazards consideration. *Attorney for licensee:* Mark J. Wetterhahn, Esquire, Winston & Strawn, 1700 K Street, NW., Washington, DC 20006. *NRC Branch Chief:* Mark G. Kowal. Nine Mile Point Nuclear Station (NMPNS), LLC, Docket No. 50-410, Nine Mile Point Nuclear Station Unit No. 2 (NMP2), Oswego County, New York *Date of amendment request:* July 12, 2007. *Description of amendment request:* The proposed amendment would modify Technical Specification
(TS)requirements related to control room envelope
(CRE)habitability in TS 3.7.2, “Control Room Envelope Filtration
(CREF)System,” and TS 5.5, “Programs and Manuals.” The proposed changes are consistent with TS Task Force
(TSTF)change 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 line item improvement process. The licensee affirmed the applicability of the model no significant hazards consideration determination in its application. *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 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 [a] 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 proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* Mark J. Wetterhahn, Esquire, Winston & Strawn, 1700 K Street, NW., Washington, DC 20006. *NRC Branch Chief:* Mark G. Kowal. Nine Mile Point Nuclear Station (NMPNS), LLC, Docket No. 50-410, Nine Mile Point Nuclear Station Unit No. 2 (NMP2), Oswego County, New York *Date of amendment request:* July 30, 2007. *Description of amendment request:* The proposed amendment would revise the technical specifications
(TSs)by changing the testing frequency for drywell spray nozzles specified in TS Surveillance Requirement
(SR)3.6.1.6.3 from “10 years” to “following maintenance that could result in nozzle blockage.” *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 modifies the surveillance requirement
(SR)to verify that the drywell spray nozzles are unobstructed after maintenance that could introduce material that could result in nozzle blockage. The spray nozzles are not assumed to be initiators of any previously analyzed accident. Therefore, the proposed change does not increase the probability of any accident previously evaluated. The spray nozzles are used in the accident analyses to mitigate design basis accidents. The revised SR to verify system operability following maintenance is considered adequate to ensure operability of the Residual Heat Removal
(RHR)Drywell Spray System. Since the system will still be able to perform its accident mitigation function, the consequences of accidents 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. 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 revises the SR to verify that the RHR Drywell Spray System nozzles are unobstructed after maintenance that could result in nozzle blockage. The change does not introduce a new mode of plant operation and does not involve physical modification to the plant. The change will not introduce new accident initiators or impact the assumptions made in the safety analysis. Therefore, the proposed 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 revises the frequency for performance of the SR to verify that the RHR Drywell Spray System nozzles are unobstructed. The frequency is changed from every 10 years to following maintenance that could result in nozzle blockage. This requirement, along with the foreign material exclusion program, the normal environmental conditions for the system, and the remote physical location of the spray nozzles, provide assurance that the spray nozzles will remain unobstructed. As the spray nozzles are expected to remain unobstructed and able to perform their post-accident mitigation function, plant safety is not significantly affected. Therefore, the proposed change does not involve a significant reduction in a 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 request involves no significant hazards consideration. *Attorney for licensee:* Mark J. Wetterhahn, Esquire, Winston & Strawn, 1700 K Street, NW., Washington, DC 20006. *NRC Branch Chief:* Mark G. Kowal. Nuclear Management Company, LLC, Docket Nos. 50-266 and 50-301, Point Beach Nuclear Plant (PBNP), Units 1 and 2, Town of Two Rivers, Manitowoc County, Wisconsin *Date of amendment request:* June 29, 2007. *Description of amendment request:* The proposed amendments would modify the Technical Specifications
(TSs)3.7.2, by removing the specific isolation time for the main steam isolation valves from the associated TS Surveillance Requirements
(SRs)and by replacing it with the requirement to verify the valve isolation time is within limits. The changes are consistent with Nuclear Regulatory Commission
(NRC)approved Industry/Technical Specification Task Force (TSTF)-491, “Removal of the Main Steam and Main Feedwater Valve Isolation Time from Technical Specifications,” Revision 2. The proposed amendments deviate from TSTF-491 in that the current PBNP TS 3.7.3, and associated SRs do not include the main feedwater valve closure times, and thus TSTF-491 changes to TS 3.7.3 are not applicable to the PBNP TSs. The NRC staff issued a notice of opportunity for comment in the **Federal Register** on October 5, 2006 (71 FR 58884), on possible amendments concerning the Consolidated Line Item Improvement Process (CLIIP), including a model safety evaluation and a model no significant hazards consideration determination. The NRC staff subsequently issued a notice of availability of the models for referencing in license amendment applications in the **Federal Register** on December 29, 2006 (71 FR 78472) as part of the CLIIP. In its application dated June 29, 2007, the licensee affirmed the applicability of the following determination. *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 proposed change allows relocating main steam [ ] valve isolation times to the Licensee Controlled Document that is referenced in the Bases. The proposed change is described in Technical Specification Task Force
(TSTF)Standard TS Change Traveler TSTF-491 related to relocating the main steam [ ] valve isolation times to the Licensee Controlled Document that is referenced in the Bases and replacing the isolation time with the ph[r]ase, “within limits.” The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed changes relocate the main steam [ ] isolation valve times to the Licensee Controlled Document that is referenced in the Bases. The requirements to perform the testing of these isolation valves are retained in the TS. Future changes to the Bases or licensee-controlled document will be evaluated pursuant to the requirements of 10 CFR 50.59, “Changes, test and experiments,” to ensure that such changes do not result in more than minimal increase in the probability or consequences of an accident previously evaluated. The proposed changes do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, and configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not adversely affect the ability of structures, systems and components
(SSCs)to perform their intended safety function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed changes do not affect the source term, containment isolation, or radiological consequences of any accident previously evaluated. Further, the proposed changes do not increase the types and the amounts of radioactive effluent that may be released, nor significantly increase individual or cumulative occupation/public radiation exposures. Therefore, the changes do not involve a significant increase in the probability or 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 proposed changes relocate the main steam [ ] valve isolation times to the Licensee Controlled Document that is referenced in the Bases. In addition, the valve isolation times are replaced in the TS with the ph[r]ase “within limits.” The changes do not involve a physical altering of the plant (i.e., no new or different type of equipment will be installed) or a change in methods governing normal p[l]ant operation. The requirements in the TS continue to require testing of the main steam [ ] isolation valves to ensure the proper functioning of these isolation valves. Therefore, the changes do 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 proposed changes relocate the main steam [ ] valve isolation times to the Licensee Controlled Document that is referenced in the Bases. In addition, the valve isolation times are replaced in the TS with the ph[r]ase “within limits.” Instituting the proposed changes will continue to ensure the testing of main steam [ ] isolation valves. Changes to the Bases or license controlled document are performed in accordance with 10 CFR 50.59. This approach provides an effective level of regulatory control and ensures that main steam [ ] isolation valve testing is conducted such that there is no significant reduction in the margin of safety. The margin of safety provided by the isolation valves is unaffected by the proposed changes since there continue to be TS requirements to ensure the testing of main steam [ ] isolation valves. The proposed changes maintain sufficient controls to preserve the current margins 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:* Jonathan Rogoff, Esquire, Vice President, Counsel & Secretary, Nuclear Management Company, LLC, 700 First Street, Hudson, WI 54016. *NRC Acting Branch Chief:* Travis L. Tate. PSEG Nuclear LLC, Docket Nos. 50-272 and 50-311, Salem Nuclear Generating Station, Unit Nos. 1 and 2, Salem County, New Jersey *Date of amendment request:* August 15, 2007. *Description of amendment request:* The proposed amendment would revise the licensing basis, as described in Appendix 3A of the Salem Updated Final Safety Analysis Report (UFSAR), regarding the method of calculating the net positive suction head available (NPSHa) for the emergency core cooling system
(ECCS)and containment heat removal system pumps. The proposed change relates to issues associated with Generic Letter 2004-02, “Potential Impact of Debris Blockage on Emergency Recirculation During Design Basis Accidents at Pressurized-Water Reactors.” *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 change in NPSH methodology for ECCS pumps allows the use of initial containment air pressure in calculating NPSHa. Although this change is a non-conservative change in the Salem methodology for calculation of RHR [residual heat removal] pump NPSHa during post LOCA [loss-of-coolant accident] recirculation (per 10 CFR 50.59(c)(1)(viii) [Title 10 of the Code of Federal Regulations, Part 50, Section 50.59(c)(1)(viii)]), the proposed new methodology is in accordance with NPSHa calculation methodologies provided in Safety Guide 1, Regulatory Guides [RG] 1.1, and 1.82, and the guidance of NEI [Nuclear Energy Institute] 04-07, [“]Pressurized Water Reactor Sump Performance Evaluation Methodology[,”] (GSI [generic safety issue]—191) and accompanying SER [safety evaluation report]. The containment air pressure value used in the NPSHa calculation is based on the containment conditions prior to the accident only and does not include any credit for accident pressure conditions, is conservatively determined based on minimum containment initial pressure, and maximum temperature and relative humidity conditions. In addition, the vapor pressure term for the sump water being pumped is also included in the NPSHa equation, and the value chosen for the NPSHa calculation is based on the highest temperature of the sump fluid for the condition being evaluated. This, in conjunction with the more rigorous GSI-191 analyses, provides assurance that the ECCS pumps can perform their design function. Consequently, the ECCS pumps will continue to perform their design function and there is no 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 ECCS pumps take suction from the containment sump during the recirculation phase of the LOCA to provide long term core cooling. This system is not utilized during normal operation of the plant. Therefore, it does not cause initiation of any accident. However, the ECCS pumps will continue to perform their design function during the recirculation phase. Crediting initial containment air pressure in the NPSH methodology does not create any new or different kind of accident from any accident previously evaluated. This change removes an additional conservatism built into the original methodology. By changing the UFSAR described methodology to credit the containment initial air pressure in the RHR pump NPSHa calculation, a more realistic methodology is established. The sole purpose of the additional conservatism was to ensure credit was not taken for post-LOCA pressure. The revised methodology continues to meet this requirement. 3. Does the proposed change involve a significant reduction in a margin of safety? Response: No. The proposed change removes conservatism from the existing UFSAR methodology. However, the purpose of the conservatism (equating containment pressure to sump vapor pressure) was solely to ensure that no credit was taken for transient (post-LOCA) pressure in the NPSHa calculation. The purpose was not to deny credit for initial containment air pressure. Consequently, removing the conservatism does not alter the basic intent of the NPSH methodology per RG 1.1 requirements, and is consistent with the requirements of RG 1.82, Revision 1 and NEI 04-07. This change to include a containment air pressure value establishes a more realistic methodology that still encompasses adequate conservatisms; no credit is given for the higher accident pressure conditions, and the value is conservatively determined based on minimum initial containment air pressure and maximum temperature and relative humidity conditions. In addition, the vapor pressure term for the sump water being pumped is also added to the NPSHa equation, and the value chosen for the NPSHa calculation is based on the highest temperature of the sump fluid for the condition being evaluated. Consequently, this 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:* Jeffrie J. Keenan, Esquire, Nuclear Business Unit—N21, P.O. Box 236, Hancocks Bridge, NJ 08038. *NRC Branch Chief:* Harold K. Chernoff. Union Electric Company, Docket No. 50-483, Callaway Plant, Unit 1, Callaway County, Missouri *Date of amendment request:* August 20, 2007. *Description of amendment request:* The amendment would increase the minimum volume of fuel required for the emergency diesel generators
(EDGs)in Technical Specification
(TS)3.8.3, “Diesel Fuel Oil, Lube Oil, and Starting Air.” *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 changes to the minimum required fuel oil volume required in the EDG storage tanks have no impact on the frequency of occurrence of any of the accidents evaluated in the FSAR [Final Safety Analysis Report for Callaway]. Changing the minimum required fuel oil volume in the EDG fuel oil storage tank has no impact on the likelihood of occurrence of a loss of coolant accident (LOCA), line break, plant transient, loss of offsite power, or any such accident because the precursors for such accidents do not involve the fuel oil storage tanks. The EDGs are designed to provide [alternating current] electrical power to systems required for mitigating the effects of accidents in the event of a loss of the preferred (offsite) power source (i.e., from the grid). However, the failure or malfunction of an EDG (due, for example, to a loss or interruption of [the] fuel oil supply) is not itself an initiator of any accident previously evaluated. Based on these considerations, the proposed changes have no impact on the probability of occurrence of any accident evaluated in the FSAR, and therefore the proposed changes do not involve a significant increase in the probability of an accident previously evaluated. With respect to the consequences of postulated accidents addressed in [the] FSAR, the support function provided by the EDGs for accident mitigation is not affected by the proposed TS changes. [The proposed changes are to provide additional margin for precluding adverse effects that could result from air entrapment caused by a vortex condition during fuel oil transfer pump operation and, thus, to ensure that the EDG has sufficient fuel oil to provide its support function when needed.] Each of the diesel fuel oil storage tanks has adequate excess capacity to more than accommodate a slight increase in the usable volume of fuel oil contained therein. Thus, even with this increase, the tanks will still be fully capable of storing the required fuel oil volume needed to ensure EDG operation throughout the assumed duration of an accident. At the same time, the proposed changes to TS 3.8.3 will serve to ensure that the unusable volume in the tanks provides adequate margin against potentially adverse vortex effects (by precluding the potential for air ingestion into the fuel oil transfer pumps). On this basis, the proposed changes have no impact on the capability of the EDGs to perform their required mitigation/support function for accidents involving a loss of offsite power. Since the proposed changes have no impact on accident mitigation capability, they involve no increase in the consequences of any accident evaluated in the FSAR. Based on the above, the proposed changes do 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 changes involve a slight change to the minimum fuel oil volume required for the EDGs, but they do not involve hardware changes or changes to EDG operation or testing that would create any new failure modes for the EDGs or any other [safety-related] system or component, or that would adversely affect plant operation. The changes do not involve the addition of any new equipment. No changes to accident assumptions, including any new limiting single failures, are involved. With respect to the proposed changes, the plant will continue to be operated within the envelope of the existing safety analyses. Therefore, based on the above, the proposed changes do 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 margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The proposed changes do not directly affect these barriers, nor do they involve or cause any adverse impact on the EDGs which serve to support these barriers in the event of an accident concurrent with a loss of offsite power. [The margin of safety is also related to the ability of the safety-related systems to perform their safety function as described in the safety analyses in the FSAR. The proposed changes are to provide additional margin for precluding adverse effects that could result from air entrapment caused by a vortex condition during fuel oil transfer pump operation and, thus, to ensure that the EDG has sufficient fuel oil to provide its support function when needed. Therefore, the proposed changes are to increase margin for the EDGs.] The proposed changes do not alter the manner in which safety limits or limiting safety system settings are determined, nor is [the] basis of any limiting condition for operation changed or affected. The safety analysis acceptance criteria are not impacted by these changes. The proposed changes will not result in plant operation in a configuration outside the design basis. Therefore, the proposed changes do 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© are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* John O'Neill, Esq., Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, NW., Washington, DC 20037. *NRC Branch Chief:* Thomas G. Hiltz. 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 51.22(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.* Entergy Operations, Inc., System Energy Resources, Inc., South Mississippi Electric Power Association, and Entergy Mississippi, Inc., Docket No. 50-416, Grand Gulf Nuclear Station, Unit 1, Claiborne County, Mississippi *Date of application for amendment:* March 1, 2007. *Brief description of amendment:* The amendment revised the Grand Gulf Nuclear Station, Unit 1
(GGNS)Technical Specification
(TS)to add a note to the Required Actions of TS 3.6.1.3, “Primary Containment Isolation Valves (PCIVs)”. GGNS TS 3.6.1.3 requires specific actions to be taken for inoperable PCIVs. The TS Required Actions include isolating the affected penetration by use of a closed and deactivated automatic valve, closed manual valve, blind flange, or check valve with flow through the valve secured. The new note would allow a relief valve to be used to comply with TS 3.6.1.3, Actions A.1 and B.1 without being deactivated provided it has a relief setpoint of at least 1.5 times containment design pressure (i.e., at least 23 pounds per square inch gauge) and meets one of the following criteria: 1. The relief valve is one-inch nominal size or less, or 2. The flow path is into a closed system whose piping pressure rating exceeds the containment design pressure rating. *Date of issuance:* August 24, 2007. *Effective date:* As of the date of issuance and shall be implemented within 90 days of issuance. *Amendment No:* 176. *Facility Operating License No. NPF-29:* The amendment revised the Facility Operating License and Technical Specifications. *Date of initial notice in Federal Register:* April 24, 2007 (72 FR 20382). The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 24, 2007. No significant hazards consideration comments received: No. Entergy Nuclear Operations, Inc., Docket Nos. 50-247 and 50-286, Indian Point Nuclear Generating Unit Nos. 2 and 3, Westchester County, New York *Date of application for amendment:* September 25, 2006, as supplemented March 12, 2007. *Brief description of amendment:* Entergy Nuclear Operations, Inc., requested an amendment to make editorial changes to the Technical Specifications of Indian Point Nuclear Generating Unit Nos. 2 and 3. The editorial changes consist of typographical corrections, update of references, and deletion of obsolete notes. *Date of issuance:* August 16, 2007. *Effective date:* As of the date of issuance, and shall be implemented within 30 days. *Amendment No.:* 252 and 234. *Facility Operating License Nos. DPR-26 and DPR-64* : The amendment revised the License and the Technical Specifications. *Date of initial notice in* Federal Register: November 7, 2006 (71 FR 65142). The March 12, 2007, supplement provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the NRC 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 August 16, 2007. No significant hazards consideration comments received: No. FPL Energy Seabrook, LLC, Docket No. 50-443, Seabrook Station, Unit No. 1, Rockingham County, New Hampshire *Date of amendment request:* August 7, 2006, as supplemented by letters dated January 22, May 14, and August 7, 2007. *Description of amendment request:* The amendment revises the Seabrook Technical Specifications
(TSs)to correct a joint-owner name in the operating license, remove a license condition from Appendix C to the FOL, and remove the list of Bases sections from the TS Index. Additionally, the amendment removes two manual valves from TS table 3.3-9, “Remote Shutdown System,” adds the requirement that only one charging pump is permitted to be aligned for injection into the reactor coolant system in Modes 4, 5, and 6, removes a 1-hour reporting requirement for portable makeup pump system storage from TS 3.7.4, “Service Water System/Ultimate Heat Sink,” deletes a footnote from TS 3.7.6.2, “Air Conditioning,” and modifies TS 6.7.6, “Radioactive Effluent Controls Program.” *Date of issuance:* August 23, 2007. *Effective date:* As of its date of issuance, and shall be implemented within 90 days. *Amendment No.:* 116. *Facility Operating License No. NPF 86:* The amendment revised the License and Technical Specification. *Date of initial notice in* Federal Register: June 5, 2007 (72 FR 31101). The licensee's January 22, May 14, and August 7, 2007, supplements provided clarifying information that did not change the scope of the proposed amendment as described in the original notice of proposed action published in the **Federal Register** , and did not change the initial proposed no significant hazards consideration determination. The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 23, 2007. No significant hazards consideration comments received: No. Nuclear Management Company, LLC, Docket Nos. 50-282 and 50-306, Prairie Island Nuclear Generating Plant, Units 1 and 2, Goodhue County, Minnesota *Date of application for amendments:* August 14, 2006, as supplemented by letter dated July 16, 2007. *Brief description of amendments:* The amendments make miscellaneous improvements to the Technical Specifications
(TSs)for Prairie Island Nuclear Generating Plant, Units 1 and 2. The amendments revise the wording in the section headers in TS 1.3, “Completion Times”; remove an unnecessary Note in TS 3.1.4, “Rod Group Alignment Limits”; remove applicable modes in TS 3.3.7, “Spent Fuel Pool Special Ventilation System (SFPSVS) Actuation Instrumentation”; add reference to a TS Condition to clarify the requirements of TS 3.7.10, “Control Room Special Ventilation System (CRSVS)”; and update a reference in TS 4.0, “Design Features.” *Date of issuance:* August 10, 2007. *Effective date:* As of the date of issuance and shall be implemented within 90 days. *Amendment Nos.:* 180 & 170. *Facility Operating License Nos. DPR-42 and DPR-60:* Amendments revised the TSs. *Date of initial notice in* Federal Register: November 21, 2006 (71 FR 67397). The supplemental letter 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 August 10, 2007. No significant hazards consideration comments received: No. PSEG Nuclear LLC, Docket Nos. 50-272 and 50-311, Salem Nuclear Generating Station, Unit Nos. 1 and 2, Salem County, New Jersey *Date of application for amendments:* September 26, 2006, as supplemented on May 14, 2007. *Brief description of amendments:* The amendments revise Technical Specification
(TS)6.9.1.9, “Core Operating Limits Report (COLR),” to remove the revision numbers and dates from the list of topical reports that contain the analytical methods used in the COLR. The Salem Unit 2 amendment also adds a new topical report to the list of COLR methods referenced in TS 6.9.1.9. *Date of issuance:* August 23, 2007. *Effective date:* The license amendments are effective as of the date of issuance. The Salem Unit 1 amendment shall be implemented prior to restart from the 19th refueling outage in fall 2008. The Salem Unit 2 amendment shall be implemented prior to restart from the 16th refueling outage in spring 2008. *Amendment Nos.:* 284 and 267. *Facility Operating License Nos. DPR 70 and DPR-75:* The amendments revised the TSs and the License. *Date of initial notice in* Federal Register: November 7, 2006 (71 FR 65143). The supplement dated May 14, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the NRC staff's original proposed no significant hazards consideration determination as published in the **Federal Register** on November 7, 2006 (71 FR 65143). The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated August 23, 2007. No significant hazards consideration comments received: No. PSEG Nuclear LLC, Docket No. 50-354, Hope Creek Generating Station, Salem County, New Jersey *Date of application for amendment:* November 15, 2006, as supplemented by letters dated June 21, and August 23, 2007. *Brief description of amendment:* The amendment deletes Technical Specification
(TS)Table 3.6.3-1, “Primary Containment Isolation Valves,” and relocates the information to the Hope Creek Generating Station Technical Requirements Manual (TRM). The amendment also revises other TS sections that reference TS Table 3.6.3-1. *Date of issuance:* August 27, 2007. *Effective date:* As of the date of issuance, to be implemented within 90 days. Implementation shall include the relocation of information from the TSs to the TRM as described in the licensee's application dated November 15, 2006, and letters dated June 21, and August 23, 2007. *Amendment No.:* 171. *Facility Operating License No. NPF-57:* The amendment revised the TSs and the License. *Date of initial notice in* Federal Register: February 13, 2007 (72 FR 6789). The supplements dated June 21, and August 23, 2007, provided clarifying information that did not change the initial proposed no significant hazards consideration determination or expand the application beyond the scope of the original **Federal Register** notice. The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 27, 2007. No significant hazards consideration comments received: No. Dated at Rockville, Maryland, this 5th day of September, 2007. For the Nuclear Regulatory Commission. Catherine Haney, Director, Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation. [FR Doc. E7-17864 Filed 9-10-07; 8:45 am] BILLING CODE 7590-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. IC-27965; File No. 812-13359] Financial Investors Variable Insurance Trust et al., Notice of Application September 4, 2007 AGENCY: Securities and Exchange Commission (“SEC” or the “Commission”). ACTION: Notice of application (“Application”) for exemption, pursuant to section 6(c) of the Investment Company Act of 1940, as amended (the “1940 Act”), from the provisions of sections 9(a), 13(a), 15(a) and 15(b) of the Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder. *Applicants:* Ibbotson Conservative ETF Asset Allocation Portfolio, Ibbotson Income and Growth ETF Asset Allocation Portfolio, Ibbotson Balanced ETF Asset Allocation Portfolio, Ibbotson Growth ETF Asset Allocation Portfolio, Ibbotson Aggressive Growth ETF Asset Allocation Portfolio (collectively, the “Existing Funds”), each a series of Financial Investors Variable Insurance Trust (the “Trust”), any other series established from time to time under the Trust (collectively with the Existing Funds, the “Insurance Funds”), and any future investment company that is designed to fund insurance products and for which ALPS Advisers, Inc. (the “Investment Adviser”), any successor in interest (collectively with the Investment Adviser, the “Investment Advisers”), or any affiliates of the Investment Advisers may serve as investment manager, investment adviser, subadviser, administrator, principal underwriter or sponsor (funds advised by such Investment Advisers herein also referred to collectively as the “Insurance Funds”) (the Trust, the Existing Funds, the Insurance Funds, the Investment Adviser, and the Investment Advisers, referred to collectively as the “Applicants”). *Summary of Application:* The Applicants request an order exempting certain life insurance companies on behalf of their separate accounts that currently invest or may hereafter invest in the Insurance Funds to the extent necessary to permit shares of the Existing Funds (the “Shares”) and the Insurance Funds to be sold to and held by:
(i)Separate accounts funding variable annuity contracts and variable life insurance policies (collectively “Variable Contracts”) issued by both affiliated life insurance companies and unaffiliated life insurance companies;
(ii)trustees of qualified group pension and group retirement plans outside of the separate account context (“Qualified Plans”);
(iii)separate accounts that are not registered as investment companies under the 1940 Act pursuant to exemptions from registration under section 3(c) of the 1940 Act;
(iv)any Adviser to an Insurance Fund that is permitted to hold shares in an Insurance Fund consistent with the requirements of regulations issued by the Treasury Department (individually a “Treasury Regulation” and collectively the “Treasury Regulations”), specifically Treasury Regulation Section 1.817-5 for the purpose of providing seed capital to an Insurance Fund; and
(v)any other Participating Insurance Company permitted to hold shares of an Insurance Fund (“General Accounts”). *Filing Date:* The Application was filed on January 26, 2007, and amended and restated on May 21, 2007. *Hearing or Notification of Hearing:* An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 26, 2007, and should be accompanied by proof of service on Applicants in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the requester's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary of the Commission. ADDRESSES: The Commission: Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants: c/o Jeffrey T. Pike, Esq., Secretary, Financial Investors Variable Insurance Trust, 1290 Broadway, Suite 1100, Denver, Colorado 80203. FOR FURTHER INFORMATION CONTACT: Jeffrey A. Foor, Senior Counsel, or Zandra Y. Bailes, Branch Chief, Office of Insurance Products, Division of Investment Management, at
(202)551-6795. SUPPLEMENTARY INFORMATION: The following is a summary of the Application. The complete Application is available for a fee from the SEC's Public Reference Branch, 100 F Street, NE., Room 1580, Washington, DC 20549 (telephone
(202)551-8090). Applicants' Representations 1. Each Insurance Fund is, or will be, registered under the 1940 Act as an open-end management investment company. The Trust (File No. 811-21987) is registered under the 1940 Act as a non-diversified management investment company. Applicants state that the Trust's shares are registered under the Securities Act of 1933, as amended (the “1933 Act”) (File No. 333-139186) and the investment adviser to the Trust, ALPS Advisers, Inc. is registered with the Commission as an investment adviser under the Investment Advisers Act of 1940, as amended. 2. Applicants state that the Existing Funds intend to, and other Insurance Funds may in the future, offer Shares to separate accounts of affiliated and unaffiliated insurance companies funding variable annuity or variable life products. Applicants state that these separate accounts are, or will be, registered as investment companies under the 1940 Act or will be exempt from such registration (individually a “Separate Account” and collectively the “Separate Accounts”). Insurance companies whose Separate Account(s) may now or in the future own Shares are referred to herein as “Participating Insurance Companies.” 3. Applicants propose that the Funds be permitted to offer and/or sell shares to Separate Accounts funding Variable Contracts issued by Participating Insurance Companies. Applicants represent that the Participating Insurance Companies at the time of their investment in the Insurance Funds either have established or will establish their own Separate Accounts and design their own Variable Contracts. Each Participating Insurance Company has or will have the legal obligation of satisfying all applicable requirements under both state and federal law. Applicants represent that each Participating Insurance Company on behalf of its Separate Accounts has entered or will enter into an agreement with each Insurance Fund in which it invests concerning participation by the Participating Insurance Company in such Insurance Fund (a “Participation Agreement”). The role of the Insurance Funds under this agreement, insofar as the federal securities laws are applicable, will consist of, among other things, offering shares to the Separate Accounts and complying with any conditions that the Commission may impose. 4. Applicants propose that the Insurance Funds also be permitted to offer and/or sell Shares to Qualified Plans administered by a Trustee. Section 817(h) of the Internal Revenue Code of 1986, as amended (the “Code”), imposes certain diversification standards on the underlying assets of Separate Accounts funding Variable Contracts. The Code provides that Variable Contracts shall not be treated as an annuity contract or life insurance policy for any period (or any subsequent period) for which the underlying assets are not, in accordance with regulations prescribed by the Treasury Department, (individually, a “Treasury Regulation” and collectively the “Treasury Regulations”), adequately diversified. On March 2, 1989, the Treasury Department issued Treasury Regulations (Treas. Reg. Section 1.817-5) that established diversification requirements for Variable Contracts, which require the Separate Accounts upon which these contracts or policies are based to be diversified as provided in the Treasury Regulations. In the case of Separate Accounts that invest in underlying investment companies, the Treasury Regulations provide a “look through” rule that permits the Separate Account to look to the underlying investment company for purposes of meeting the diversification requirements, provided that the beneficial interests in the investment company are held only by the segregated asset accounts of one or more insurance companies. However, the Treasury Regulations also contain certain exceptions to this requirement, one of which allows shares in an investment company to be held by the trustee of a qualified pension or retirement plan without adversely affecting the tax status of Variable Contracts (Treas. Reg. Section 1.817-5(f)(3)(iii)). Another exception allows the investment manager of the investment company and certain companies related to the investment manager to hold shares of the investment company, an exception that is often used to provide the capital required by section 14(a) of the 1940 Act. 5. Applicants also propose that the Funds be permitted to offer and/or sell shares to an Adviser for the purpose of providing initial capital to an Insurance Fund and to General Accounts. The Regulations permit such sales to an Adviser and to General Accounts so long as the return on shares held by each is computed in the same manner as for shares held by the Separate Accounts, and the Adviser and the General Accounts do not intend to sell shares of the Portfolio held by it to the public. The Treasury Regulations impose an additional restriction on sales to investment advisers, who may hold shares only in connection with the creation of an Insurance Fund. Applicants anticipate that sales in reliance on these provisions of the Treasury Regulations will be made to an Adviser for the purpose of providing the initial capital for a Fund and that any Shares purchased by an Adviser will be redeemed immediately if and when the Adviser's investment advisory agreement terminates. Applicants' Legal Analysis 1. In connection with the funding of scheduled premium variable life insurance contracts issued through a Separate Account registered as a unit investment trust (“UIT”) under the 1940 Act, Rule 6e-2(b)(15) provides partial exemptions from sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act. Section 9(a)(2) of the 1940 Act makes it unlawful for any company to serve as an investment adviser or principal underwriter of any UIT, if an affiliated person of that company is subject to a disqualification enumerated in section 9(a)(1) or
(2)of the 1940 Act. Sections 13(a), 15(a) and 15(b) of the 1940 Act have been deemed by the Commission to require “pass-through” voting with respect to an underlying investment company's shares. Rule 6e-2(b)(15) provides these exemptions apply only where all of the assets of the UIT are shares of management investment companies “which offer their shares exclusively to variable life insurance separate accounts of the life insurer or of any affiliated life insurance company.” Therefore, the relief granted by Rule 6e-2(b)(15) is not available with respect to a scheduled premium life insurance Separate Account that owns shares of an underlying fund that also offers its shares to a variable annuity Separate Account or flexible premium variable life insurance Separate Account of the same company or any other affiliated insurance company. The use of a common management investment company as the underlying investment vehicle for both variable annuity and variable life insurance separate accounts of the same life insurance company or of any affiliated life insurance company is referred to herein as “mixed funding.” 2. The relief granted by Rule 6e-2(b)(15) also is not available with respect to a scheduled premium variable life insurance Separate Account that owns shares of an underlying fund that also offers its shares to Separate Accounts funding Variable Contracts of one or more unaffiliated life insurance companies. The use of a common management investment company as the underlying investment vehicle for variable annuity and/or variable life insurance Separate Accounts of unaffiliated life insurance companies is referred to herein as “shared funding.” 3. Moreover, because the relief under Rule 6e-2(b)(15) is available only where shares are offered exclusively to variable life insurance Separate Accounts of a life insurer or any affiliated life insurance company, additional exemptive relief is necessary if the Shares are also to be sold to Qualified Plans, an Adviser and General Accounts (collectively, “Eligible Purchasers”). Applicants note that if the Shares were sold only to Separate Accounts funding variable annuity contracts and/or Eligible Purchasers, exemptive relief under Rule 6e-2(b)(15) would not be necessary. The relief provided for under this section does not relate to Eligible Purchasers or to a registered investment company's ability to sell its shares to Eligible Purchasers. The use of a common management investment company as the underlying investment vehicle for Separate Accounts funding Variable Contracts issued by affiliated and unaffiliated insurance companies, and for Eligible Purchasers, is referred to herein as “extended mixed and shared funding.” 4. In connection with flexible premium variable life insurance contracts issued through a separate account registered under the 1940 Act as a UIT, Rule 6e-3(T)(b)(15) provides partial exemptions from sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act. The exemptions granted by Rule 6e-3(T)(b)(15) are available only where all the assets of the Separate Account consist of the shares of one or more registered management investment companies that offer to sell their shares “exclusively to separate accounts of the life insurer, or of any affiliated life insurance companies, offering either scheduled contracts or flexible contracts, or both; or which also offer their shares to variable annuity separate accounts of the life insurer or of an affiliated life insurance company or which offer their shares to any such life insurance company in consideration solely for advances made by the life insurer in connection with the operation of the separate account.” Therefore, Rule 6e-3(T)(b)(15) permits mixed funding but does not permit shared funding. 5. Moreover, because the relief under Rule 6e-3(T) is available only where shares are offered exclusively to variable life insurance separate accounts of a life insurer or any affiliated life insurance company, additional exemptive relief is necessary if the shares of the Portfolios are also to be sold to Eligible Purchasers, as described above. Applicants note that if the Shares were sold only to Separate Accounts funding variable annuity contracts and/or Eligible Purchasers, exemptive relief under Rule 6e-3(T)(b)(15) would not be necessary. The relief provided for under this section does not relate to Eligible Purchasers or to a registered investment company's ability to sell its shares to Eligible Purchasers. 6. Applicants maintain, as discussed below, that there is no policy reason for the sale of the Portfolios' shares to Eligible Purchasers to result in a prohibition against, or otherwise limit a Participating Insurance Company from relying on the relief provided by Rules 6e-2(b)(15) and 6e-3(T)(b)(15). However, because the relief under Rules 6e-2(b)(15) and 6e-3(T)(b)(15) is available only when shares are offered exclusively to Separate Accounts, additional exemptive relief may be necessary if the shares of the Portfolios are also to be sold to Eligible Purchasers. Applicants therefore request relief in order to have the Participating Insurance Companies enjoy the benefits of the relief granted in Rules 6e-2(b)(15) and 6e-3(T)(b)(15) even where Eligible Purchasers are investing in the relevant Insurance Fund. Applicants note that if the Shares were to be sold only to Eligible Purchasers, and/or Separate Accounts funding variable annuity contracts, exemptive relief under Rule 6e-2(b)(15) and Rule 6e-3(T)(b)(15) would be unnecessary. The relief provided for under Rules 6e-2(b)(15) and 6e-3(T)(b)(15) does not relate to Eligible Purchasers, or to a registered investment company's ability to sell its shares to Eligible Purchasers. 7. Consistent with the Commission's authority under section 6(c) of the 1940 Act to grant exemptive orders to a class or classes of persons and transactions, the Application requests relief for the class consisting of Participating Insurance Companies and their Separate Accounts (and to the extent necessary, investment advisers, principal underwriters and depositors of such Separate Accounts). 8. In effect, the partial relief granted in Rules 6e-2(b)(15) and 6e-3(T)(b)(15) under the 1940 Act from the requirements of section 9 of the 1940 Act limits the amount of monitoring necessary to ensure compliance with section 9 to that which is appropriate in light of the policy and purposes of section 9. Those rules recognize that it is not necessary for the protection of investors or the purposes fairly intended by the policy and provisions of the 1940 Act to apply the provisions of section 9(a) to individuals in a large insurance complex, most of whom will have no involvement in matters pertaining to investment companies in that organization. Applicants assert that it is also unnecessary to apply section 9(a) of the 1940 Act to the many individuals in various unaffiliated insurance companies (or affiliated companies of Participating Insurance Companies) that may utilize the Insurance Funds as investment vehicles for Variable Contracts. Applicants argue that there is no regulatory purpose in extending the monitoring requirements to embrace a full application of section 9(a)'s eligibility restrictions because of mixed funding or shared funding and sales to Qualified Plans, an Adviser or General Accounts. Applicants represent that the Participating Insurance Companies and Qualified Plans are not expected to play any role in the management of the Insurance Funds. Applicants argue that those individuals who participate in the management of the Insurance Funds will remain the same regardless of which Separate Accounts or Qualified Plans invest in the Insurance Funds. Applying the monitoring requirements of section 9(a) of the 1940 Act because of investment by Separate Accounts of Participating Insurance Companies or Qualified Plans would be unjustified and would not serve any regulatory purpose. Furthermore, the increased monitoring costs could reduce the net rates of return realized by contract owners and Qualified Plan holders. 9. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) under the 1940 Act provide exemptions from the pass-through voting requirement with respect to several significant matters, assuming the limitations on mixed and shared funding are observed. Rules 6e-2(b)(15)(iii)(A) and 6e-3(T)(b)(15)(iii)(A) provide that the insurance company may disregard the voting instructions of its contract owners with respect to the investments of an underlying fund, or any contract between such a fund and its investment adviser, when required to do so by an insurance regulatory authority (subject to the provisions of paragraphs (b)(5)(i) and (b)(7)(ii)(A) of Rules 6e-2 and 6e-3(T), respectively, under the 1940 Act). Rules 6e-2(b)(15)(iii)(B) and 6e-3(T)(b)(15)(iii)(A)(2) provide that the insurance company may disregard the voting instructions of its contract owners if the contract owners initiate any change in an underlying fund's investment policies, principal underwriter, or any investment adviser (provided that disregarding such voting instructions is reasonable and subject to the other provisions of paragraphs (b)(5)(ii), (b)(7)(ii)(B), and (b)(7)(ii)(C), respectively, of Rules 6e-2 and 6e-3(T) under the 1940 Act). 10. Rule 6e-2 under the 1940 Act recognizes that a variable life insurance contract, as an insurance contract, has important elements unique to insurance contracts and is subject to extensive state regulation of insurance. In adopting Rule 6e-2(b)(15)(iii), the Commission expressly recognized that state insurance regulators have authority, pursuant to state insurance laws or regulations, to disapprove or require changes in investment policies, investment advisers, or principal underwriters. The Commission also expressly recognized that state insurance regulators have authority to require an insurer to draw from its general account to cover costs imposed upon the insurer by a change approved by contract owners over the insurer's objection. The Commission, therefore, deemed such exemptions necessary “to assure the solvency of the life insurer and performance of its contractual obligations by enabling an insurance regulatory authority or the life insurer to act when certain proposals reasonably could be expected to increase the risks undertaken by the life insurer.” In this respect, flexible premium variable life insurance contracts are identical to scheduled premium variable life insurance contracts. Applicants, therefore, assert that the corresponding provisions of Rule 6e-3(T) under the 1940 Act undoubtedly were adopted in recognition of the same factors. 11. Applicants also assert that the sale of Shares to Qualified Plans, an Adviser and General Accounts will not have any impact on the relief requested herein. With respect to the Qualified Plans, which are not registered as investment companies under the 1940 Act, shares of a portfolio of an investment company sold to a Qualified Plan must be held by the trustees of the Qualified Plan pursuant to section 403(a) of the Employee Retirement Income Security Act, as amended (“ERISA”). Applicants note that
(1)Section 403(a) of ERISA endows Qualified Plan trustees with the exclusive authority and responsibility for voting proxies provided neither of two enumerated exceptions to that provision applies;
(2)some of the Qualified Plans may provide for the trustee(s), an investment adviser (or advisers), or another named fiduciary to exercise voting rights in accordance with instructions from participants; and
(3)there is no requirement to pass through voting rights to Qualified Plan participants. 12. Applicants argue that an Investment Manager and General Accounts are similar in that they are not subject to any pass-through voting requirements. Applicants therefore conclude that, unlike the case with insurance company Separate Accounts, the issue of resolution of material irreconcilable conflicts with respect to voting is not present with Eligible Purchasers. 13. Applicants represent that where a Qualified Plan does not provide participants with the right to give voting instructions, the trustee or named fiduciary has responsibility to vote the shares held by the Qualified Plan. In this circumstance, the trustee has a fiduciary duty to vote the shares in the best interest of the Qualified Plan participants. Accordingly, even if an Adviser or an affiliate of an Adviser were to serve in the capacity of trustee or named fiduciary with voting responsibilities, an Adviser or its affiliates would have a fiduciary duty to vote relevant Shares in the best interest of the Qualified Plan participants. 14. Further, Applicants assert that even if a Qualified Plan were to hold a controlling interest in a Portfolio, Applicants do not believe that such control would disadvantage other investors in such Portfolio to any greater extent than is the case when any institutional shareholder holds a majority of the voting securities of any open-end management investment company. In this regard, Applicants submit that investment in a Portfolio by a Qualified Plan will not create any of the voting complications occasioned by mixed funding or shared funding. Unlike mixed funding or shared funding, Applicants argue that Qualified Plan investor voting rights cannot be frustrated by veto rights of insurers or state regulators. 15. Where a Qualified Plan provides participants with the right to give voting instructions, Applicants see no reason to believe that participants in Qualified Plans generally or those in a particular Qualified Plan, either as a single group or in combination with participants in other Qualified Plans, would vote in a manner that would disadvantage Variable Contract holders. Applicants assert that the purchase of Shares by Qualified Plans that provide voting rights does not present any complications not otherwise occasioned by mixed or shared funding. 16. Applicants do not believe that sale of the Shares to Qualified Plans will increase the potential for material irreconcilable conflicts of interest between or among different types of investors. In particular, Applicants see very little potential for such conflicts beyond those which would otherwise exist between Variable Contract owners. 17. Applicants assert that permitting an Insurance Fund to sell its shares to an Adviser or to the General Account of a Participating Insurance Company will enhance management of each Insurance Fund without raising significant concerns regarding material irreconcilable conflicts. Unlike the circumstances of many investment companies that serve as underlying investment media for variable insurance products, the Fund may be deemed to lack an insurance company “promoter” for purposes of Rule 14a-2 under the 1940 Act. Accordingly, the Fund and any other such Future Funds or Portfolios that are established as new registrants will be subject to the requirements of section 14(a) of the 1940 Act, which generally requires that an investment company have a net worth of $100,000 upon making a public offering of its shares. Portfolios also will require more limited amounts of initial capital in connection with the creation of new series and the voting of initial shares of such series on matters requiring the approval of shareholders. A potential source of the requisite initial capital is a Portfolio's adviser or a Participating Insurance Company. Either of these parties may have an interest in making the requisite capital investments and in participating with an Insurance Fund in its organization. Applicants note, however, that the provision of seed capital or the purchase of shares in connection with the management of an Insurance Fund by its investment adviser or by a Participating Insurance Company may be deemed to violate the exclusivity requirement of Rule 6e-2(b)(15) and/or Rule 6e-3(T)(b)(15). 18. Given the conditions of Treas. Reg. Section 1.817-5(f)(3) and the harmony of interest between an Insurance Fund, on the one hand, and an Adviser or a Participating Insurance Company, on the other, Applicants assert that little incentive for overreaching exists. Furthermore, Applicants assert such investment should not implicate the concerns discussed above regarding the creation of material irreconcilable conflicts. Instead, Applicants argue that permitting investments by an Adviser, or by General Accounts, will permit the orderly and efficient creation of an Insurance Fund, and reduce the expense and uncertainty of using outside parties at the early stages of the Insurance Fund's operations. Applicants' Conditions Applicants agree that the order granting the requested relief shall be subject to the following conditions: 1. A majority of the Board of Trustees (the “Board”) of each Insurance Fund will consist of persons who are not “interested persons” of the Insurance Fund, as defined by section 2(a)(19) of the 1940 Act, and the rules thereunder, and as modified by any applicable orders of the Commission, except that if this condition is not met by reason of the death, disqualification, or bona-fide resignation of any trustee or trustees, then the operation of this condition will be suspended:
(a)For a period of 90 days if the vacancy or vacancies may be filled by the Board;
(b)for a period of 150 days if a vote of shareholders is required to fill the vacancy or vacancies; or
(c)for such longer period as the Commission may prescribe by order upon application or by future rule. 2. The Board of each Insurance Fund will monitor the Insurance Fund for the existence of any material irreconcilable conflict between the interests of the contract owners of all Separate Accounts and participants of all Qualified Plans investing in the Insurance Fund, and determine what action, if any, should be taken in response to such conflicts. A material irreconcilable conflict may arise for a variety of reasons, including:
(a)An action by any state insurance regulatory authority;
(b)a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or any similar action by insurance, tax, or securities regulatory authorities;
(c)an administrative or judicial decision in any relevant proceeding;
(d)the manner in which the investments of the Insurance Fund are being managed;
(e)a difference in voting instructions given by variable annuity contract owners, variable life insurance contract owners, and trustees of the Qualified Plans;
(f)a decision by a Participating Insurance Company to disregard the voting instructions of contract owners; or
(g)if applicable, a decision by a Qualified Plan to disregard the voting instructions of Qualified Plan participants. 3. Participating Insurance Companies (on their own behalf, as well as by virtue of any investment of General Account assets in an Insurance Fund), an Adviser, and any trustee on behalf of a Qualified Plan that executes a Participation Agreement upon becoming an owner of 10 percent or more of the assets of an Insurance Fund (collectively, “Participants”) will report any potential or existing conflicts to the Board of the relevant Insurance Fund. Participants will be responsible for assisting the Board in carrying out the Board's responsibilities under these conditions by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This responsibility includes, but is not limited to, an obligation of each Participating Insurance Company to inform the Board whenever contract owner voting instructions are disregarded, and, if pass-through voting is applicable, an obligation by each Trustee for a Qualified Plan to inform the Board whenever it has determined to disregard Qualified Plan participant voting instructions. The responsibility to report such information and conflicts, and to assist the Board, will be a contractual obligation of all Participating Insurance Companies under their Participation Agreements with the relevant Insurance Fund, and these responsibilities will be carried out with a view only to the interests of the contract owners. The responsibility to report such information and conflicts, and to assist the Board, also will be contractual obligations of all Qualified Plans under their Participation Agreements, and such agreements will provide that these responsibilities will be carried out with a view only to the interests of Qualified Plan participants. 4. If it is determined by a majority of the Board of an Insurance Fund, or a majority of the disinterested directors/trustees of such Board, that a material irreconcilable conflict exists, then the relevant Participant will, at its expense and to the extent reasonably practicable (as determined by a majority of the disinterested directors/trustees), take whatever steps are necessary to remedy or eliminate the material irreconcilable conflict, up to and including:
(a)Withdrawing the assets allocable to some or all of the Separate Accounts from the relevant Insurance Fund and reinvesting such assets in a different investment vehicle including another Insurance Fund, submitting the question as to whether such segregation should be implemented to a vote of all affected contract or policy owners and, as appropriate, segregating the assets of any appropriate group ( *i.e.* , variable annuity contract owners or variable life insurance contract owners of one or more Participating Insurance Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and
(b)establishing a new registered management investment company or managed separate account. If a material irreconcilable conflict arises because of a decision by a Participating Insurance Company to disregard contract or policy owner voting instructions, and that decision represents a minority position or would preclude a majority vote, then the Participating Insurance Company may be required, at the election of the relevant Insurance Fund, to withdraw such Participating Insurance Company's Separate Account investment in the Insurance Fund, and no charge or penalty will be imposed as a result of such withdrawal. The responsibility to take remedial action in the event of a Board determination of a material irreconcilable conflict and to bear the cost of such remedial action will be a contractual obligation of all Participants under their Participation Agreement with the relevant Insurance Fund, and these responsibilities will be carried out with a view only to the interests of contract owners and Qualified Plan participants. For purposes of this Condition 4, a majority of the disinterested directors/ trustees of the Board of each Insurance Fund will determine whether or not any proposed action adequately remedies any material irreconcilable conflict, but in no event will the Insurance Fund or an Adviser, as relevant, be required to establish a new funding vehicle for any Variable Contract. No Participating Insurance Company will be required by this Condition 4 to establish a new funding vehicle for any Variable Contract if any offer to do so has been declined by vote of a majority of the contract or policy owners materially and adversely affected by the material irreconcilable conflict. Further, no Qualified Plan will be required by this Condition 4 to establish a new funding vehicle for the Qualified Plan if:
(a)A majority of the Qualified Plan participants materially and adversely affected by the irreconcilable material conflict vote to decline such offer; or
(b)pursuant to documents governing the Qualified Plan, the Qualified Plan makes such decision without a Qualified Plan participant vote. 5. The Board of each Insurance Fund's determination of the existence of a material irreconcilable conflict and its implications will be made known in writing promptly to all Participants. 6. As to Variable Contracts issued by Separate Accounts registered under the 1940 Act, Participating Insurance Companies will provide pass-through voting privileges to all Variable Contract owners as required by the 1940 Act as interpreted by the Commission. However, as to Variable Contracts issued by unregistered Separate Accounts, pass-through voting privileges will be extended to contract owners to the extent granted by the issuing insurance company. Accordingly, such Participants, where applicable, will vote the Shares held in their Separate Accounts in a manner consistent with voting instructions timely received from Variable Contract owners. Participating Insurance Companies will be responsible for assuring that each Separate Account investing in the relevant Insurance Fund calculates voting privileges in a manner consistent with other Participants. The obligation to calculate voting privileges as provided in the Application will be a contractual obligation of all Participating Insurance Companies under their Participation Agreement with the relevant Insurance Fund. Each Participating Insurance Company will vote shares for which it has not received timely voting instructions, as well as shares held in its General Account or otherwise attributed to it, in the same proportion as it votes those shares for which it has received voting instructions. Each Qualified Plan will vote as required by applicable law and governing Qualified Plan documents. 7. As long as the 1940 Act requires pass-through voting privileges to be provided to Variable Contract owners, an Adviser, who has provided seed capital for the Insurance Fund, and any General Account will vote their respective Shares in the same proportion as all variable contract owners having voting rights with respect to that Insurance Fund; provided, however, that an Adviser or any General Account shall vote its Shares in such other manner as may be required by the Commission or its staff. 8. Each Insurance Fund will comply with all provisions of the 1940 Act requiring voting by shareholders, which, for these purposes, shall be the persons having a voting interest in the Shares, and, in particular, the Insurance Fund will either provide for annual meetings (except to the extent that the Commission may interpret section 16 of the 1940 Act not to require such meetings) or comply with section 16(c) of the 1940 Act (although each Insurance Fund is not, or will not be, one of those trusts of the type described in section 16(c) of the 1940 Act), as well as with section 16(a) of the 1940 Act and, if and when applicable, section 16(b) of the 1940 Act. Further, each Insurance Fund will act in accordance with the Commission's interpretations of the requirements of section 16(a) with respect to periodic elections of directors/trustees and with whatever rules the Commission may promulgate thereto. 9. An Insurance Fund will make its Shares available to the Separate Accounts and Qualified Plans at or about the time it accepts any seed capital from an Adviser or General Account of a Participating Insurance Company. 10. Each Insurance Fund has notified, or will notify, all Participants that Separate Account prospectus disclosure or Qualified Plan prospectuses or other Qualified Plan disclosure documents regarding potential risks of mixed and shared funding may be appropriate. Each Insurance Fund will disclose, in its prospectus that:
(a)Shares of the Existing Funds may be offered to Separate Accounts funding both variable annuity contracts and variable life insurance policies and, if applicable, to Qualified Plans;
(b)due to differences in tax treatment and other considerations, the interests of various contract owners participating in the Insurance Fund and the interests of Qualified Plans investing in the Insurance Fund, if applicable, may conflict; and
(c)the Insurance Fund's Board will monitor events in order to identify the existence of any material irreconcilable conflicts and to determine what action, if any, should be taken in response to any such conflict. 11. If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are amended, or proposed Rule 6e-3 under the 1940 Act is adopted, to provide exemptive relief from any provision of the 1940 Act, or the rules promulgated thereunder, with respect to mixed or shared funding, on terms and conditions materially different from any exemptions granted in the order requested in the Application, then each Insurance Fund and/or Participating Insurance Companies, as appropriate, shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), or Rule 6e-3, as such rules are applicable. 12. Each Participant, at least annually, will submit to the Board of Each Insurance Fund such reports, materials, or data as a Board reasonably may request so that the directors/trustees of the Board may fully carry out the obligations imposed upon the Board by the conditions contained in the Application. Such reports, materials, and data will be submitted more frequently if deemed appropriate by the Board of an Insurance Fund. The obligations of the Participants to provide these reports, materials, and data to the Board, when it so reasonably requests, will be a contractual obligation of all Participants under their Participation Agreements with the relevant Insurance Fund. 13. All reports of potential or existing conflicts received by the Board of each Insurance Fund, and all Board action with regard to determining the existence of a conflict, notifying Participants of a conflict and determining whether any proposed action adequately remedies a conflict, will be properly recorded in the minutes of the Board or other appropriate records, and such minutes or other records shall be made available to the Commission upon request. 14. Each Insurance Fund will not accept a purchase order from a Qualified Plan if such purchase would make the Qualified Plan an owner of 10 percent or more of the assets of the Insurance Fund unless the Trustee for such Qualified Plan executes an agreement with the Insurance Fund governing participation in the Insurance Fund that includes the conditions set forth herein to the extent applicable. A Trustee for a Qualified Plan will execute an application containing an acknowledgement of this condition at the time of its initial purchase of Shares. Conclusions Applicants submit that, for the reasons summarized above and to the extent necessary or appropriate to provide for the transactions described herein, the requested exemptions from sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, in accordance with the standards of section 6(c) of the 1940 Act, are in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E7-17786 Filed 9-10-07; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56351; File No. SR-Amex-2007-81] Self-Regulatory Organizations; American Stock Exchange, LLC; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change as Modified by Amendment No. 1 Thereto To Eliminate Position and Exercise Limits for Options on the Russell 2000 Index, and To Specify That Certain Reduced-Value Options on Broad-Based Security Indexes Have No Position and Exercise Limits Pursuant to Section September 4, 2007. 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on August 2, 2007, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. On August 21, 2007, the Exchange filed Amendment No. 1 to the proposed rule change. This order provides notice of the proposed rule change, as modified by Amendment No. 1, and approves the proposal on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to eliminate position and exercise limits for options on the Russell 2000 Index (“RUT”), and to specify that reduced-value options on broad-based security indexes for which full-value options have no position and exercise limits will similarly have no position and exercise limits. The text of the proposed rule change is available at Amex, the Commission's Public Reference Room, and *http://www.amex.com.* II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend Amex Rule 904C to eliminate position and exercise limits for options on RUT, a broad-based securities index that is multiply-listed and heavily traded. 3 The Exchange further proposes to amend Rule 904C to specify that reduced-value options on broad-based security indexes for which full-value options have no position and exercise limits will similarly have no position and exercise limits. Currently, options on the Full Size Nasdaq-100 Index (“NDX”) have no position and exercise limits. In this regard, the Exchange also proposes to eliminate position and exercise limits for options on the Mini Nasdaq-100 Index (“MNX”). 3 The current position and exercise limits for RUT options are 50,000 contracts, with no more than 30,000 of such contracts in a series in the nearest expiration month. *See* Securities Exchange Act Release No. 53191 (January 30, 2006), 71 FR 6111 (February 6, 2006) (SR-Amex-2005-061). Eliminate Position and Exercise Limits for RUT Options The Exchange believes that the circumstances and considerations relied upon in approving the elimination of position and exercise limits for other heavily traded broad-based index options ( *e.g.* , options on NDX, the Major Market Index (“XMI”), and the Institutional Index (“XII”)) equally apply to the current proposal relating to position and exercise limits for RUT options. 4 4 *See* Securities Exchange Act Release No. 52649 (October 21, 2005), 70 FR 62146 (October 28, 2005) (SR-Amex-2005-063) (“NDX Approval Order”); *see also* Securities Exchange Act Release No. 46393 (August 21, 2002), 67 FR 55289 (August 28, 2002) (SR-Amex-2002-31) (“XMI/XII Permanent Approval Order”). In approving the elimination of position and exercise limits for NDX, XMI, and XII options, the Commission considered the capitalization of the each of these indexes and the deep and liquid markets for the securities underlying each index significantly reduced concerns of market manipulation or disruption in the underlying markets. The Commission also noted the active trading volume for options on those indexes. Amex believes that RUT shares these factors in common with the NDX and XMI. As of July 31, 2007, the approximate market capitalization of the NDX and XMI 5 were $2.28 and $2.82 trillion, respectively, the average daily trading volume (“ADTV”) for the components of the indexes were 572 million and 171 million shares, respectively, and the ADTV for options on the indexes were 64,003 contracts per day, and 1,338 contracts per day, respectively. Amex believes that RUT has very comparable characteristics. The market capitalization for RUT is $1.73 trillion dollars, the ADTV for the underlying securities is 535 million shares, and the ADTV for RUT options is 79,000 contracts. 5 Options on XII are no longer listed and traded on the Exchange. In approving the elimination of position and exercise limits for NDX, XMI, and XII, the Commission also noted the financial requirements imposed by both the Exchange and the Commission serve to address any concerns that an Exchange member or its customer(s) may try to maintain an inordinately large unhedged position in options on the indexes. These financial requirements also apply to RUT options. Under Amex rules, the Exchange also has the authority to impose additional margin upon accounts maintaining underhedged positions, and is further able to monitor accounts to determine when such action is warranted. As noted in the Exchange's rules, the clearing firm carrying such an account would be subject to capital charges under Rule 15c3-1 under the Act 6 to the extent of any resulting margin deficiency. 7 6 17 CFR 240.15c3-1. 7 *See* Commentary .03 to Amex Rule 904C. In approving the elimination of position and exercise limits for NDX, XMI, and XII the Commission relied heavily on the Exchange's ability to provide surveillance and reporting safeguards to detect and deter trading abuses arising from the elimination of position and exercise limits in options on those indexes. The Exchange represents that it monitors the trading in RUT options in the same manner as trading in NDX and XMI options and that the current Amex surveillance procedures are adequate to continue monitoring RUT options. In addition, the Exchange intends to impose a reporting requirement on Amex members or member organizations (other than Amex specialists and registered options traders) who trade RUT options. This reporting requirement, which is currently imposed on members who trade NDX and XMI options, will require members or member organizations who maintain in excess of 100,000 RUT option contracts on the same side of the market, for their own accounts or for the account of customers, to report information as to whether the positions are hedged and provide documentation as to how such contracts are hedged, in a manner and form required by the Exchange's Regulation Department. The Exchange may also specify other reporting requirements, as well as the limit at which the reporting requirement may be triggered. The Exchange proposes to delete the reference to XII options in Rule 904C(b), Commentary .03 to Rule 904C, Rule 906C(b), and Rule 906G, as XII options are no longer listed and traded on the Exchange. For consistency, the Exchange also proposes to amend Rule 906G(a)(i), (iv), and
(v)relating to the trading of FLEX broad-based index options to reflect that there shall be no position or exercise limits on RUT options and to adopt the 100,000 contract reporting requirement for FLEX RUT options. All other FLEX rules applicable to NDX and XMI options shall also apply, where applicable, to RUT options. The Exchange believes that eliminating position and exercise limits for RUT options and FLEX RUT options is consistent with Amex rules relating to similar broad-based indexes and also allows Amex members and their customers greater hedging and investment opportunities. Elimination of Position Limits for Reduced-Value Options on Broad-Based-Indexes for Which There Are Not Position and Exercise Limits for Full-Value Options The Exchange lists and trades reduced-value options on broad-based indexes for which the Exchange also lists and trades full-value options ( *e.g.* , MNX options). When the exchange received approval to list and trade MNX options, the proscribed position and exercise limits were equivalent to the reduced-value contract factor ( *e.g.* , 10) multiplied by the applicable position and exercise limits for the full-value options on the same broad-based index. 8 For example, when the Exchange received approval to list and trade NDX and MNX options, 9 the position and exercise limits for MNX ( 1/10th NDX value) options were 750,000 contracts, which was equal to the applicable factor
(10)multiplied by the position limit for NDX options (75,000 contracts). In the NDX Approval Order, the Exchange noted that NDX contracts would be aggregated with MNX contracts to determine compliance with applicable position and exercise limits. Since position and exercise limits were eliminated for NDX options, 10 the Exchange now proposes to eliminate position and exercise limits for MNX options. The Exchange further proposes to amend Rule 904C(b) to state that reduced-value options on broad-based security indexes for which full-value options have no position and exercise limits, would similarly have no position and exercise limits. 8 *See* Securities Exchange Act Release No. 51884 (June 20, 2005), 70 FR 36973 (June 27, 2005) (SR-Amex-2005-038). 9 *See* NDX Approval Order, *supra* note 4. 10 *Id.* In addition, because position and exercise limits for reduced-value options are aggregated with full-value options for purposes of determining compliance with position and exercise limits, the Exchange proposes to amend Rule 906C to reflect that such aggregation would apply when calculating reporting requirements ( *e.g.* , 10 MNX options equal 1 NDX full-value contract). 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act, 11 in general, and Section 6(b)(5) of the Act, 12 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. 11 15 U.S.C. 78f(b). 12 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition 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 No written comments were solicited or received with respect to the proposed rule change. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change 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-2007-81 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-2007-81. 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, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Amex-2007-81 and should be submitted on or before October 2, 2007. IV. Commission's Findings and Order Granting Accelerated Approval of the Proposed Rule Change After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange. 13 In particular, the Commission believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act, which requires that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. 14 13 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 14 15 U.S.C. 78f(b)(5). Since the inception of standardized options trading, the options exchanges have had rules imposing limits on the aggregate number of options contracts that a member or customer could hold or exercise. These rules are intended to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market so as to benefit the options position. The Commission notes that it continues to believe that the fundamental purposes of position and exercise limits remain valid. Nevertheless, the Commission believes that experience with the trading of index options as well as enhanced reporting requirements and the Exchange's surveillance capabilities have made it possible to approve the elimination of position and exercise limits on certain broad-based index options. Thus, in 2002, the Commission approved an Amex proposal to eliminate permanently position and exercise limits for options on XMI and XII, 15 and, in 2005, the Commission approved an Amex proposal to eliminate permanently the position and exercise limits for options on NDX. 16 The Commission believes that the considerations upon which it relied in approving the elimination of position and exercise limits for XMI, XII, and NDX options equally apply with respect to options on RUT. 15 *See* XMI/XII Permanent Approval Order, *supra* note 4. 16 *See* NDX Approval Order, *supra* note 4. As noted by Amex, the market capitalization of the RUT as of July 31, 2007, was $1.73 trillion. The ADTV for all underlying components of the index was 535 million shares. The Commission believes that the enormous market capitalization of RUT and the deep, liquid market for the underlying component securities significantly reduce concerns regarding market manipulation or disruption in the underlying market. Removing position and exercise limits for RUT options may also bring additional depth and liquidity, in terms of both volume and open interest, to RUT options without significantly increasing concerns regarding intermarket manipulation or disruption of the options or the underlying securities. In addition, the Commission believes that financial requirements imposed by both the Exchange and the Commission adequately address concerns that an Amex member or its customer may try to maintain an inordinately large unhedged position in RUT options. Current risk-based haircut and margin methodologies serve to limit the size of positions maintained by any one account by increasing the margin and/or capital that a member must maintain for a large position held by itself or by its customer. 17 Under the proposal, Amex also would have the authority under its rules to impose a higher margin requirement upon an account maintaining an under-hedged position when it determines a higher requirement is warranted. As noted in the Amex rules, the clearing firm carrying the account would be subject to capital charges under Rule 15c3-1 under the Act to the extent of any margin deficiency resulting from the higher margin requirement. 17 *See* Securities Exchange Act Release No. 41011 (February 1, 1999), 64 FR 6405 (February 9, 1999) (SR-Amex-98-38) (“XMI/XII Pilot Approval Order”). In approving the elimination of position and exercise limits for options on XMI, XII, and NDX, the Commission took note of the enhanced surveillance and reporting safeguards that Amex had adopted to allow it to detect and deter trading abuses that might arise as a result. 18 Amex represents that it monitors trading in RUT options in much the same manner as trading in XMI and NDX options. These safeguards, including the 100,000-contract reporting requirement described above, would allow Amex to monitor large positions in order to identify instances of potential risk and to assess and respond to any market concerns at an early stage. In this regard, the Commission expects Amex to take prompt action, including timely communication with the Commission and other marketplace self-regulatory organizations responsible for oversight of trading in component stocks, should any unanticipated adverse market effects develop. Moreover, as previously noted, the Exchange has the flexibility to specify other reporting requirements, as well as to vary the limit at which the reporting requirements may be triggered. 18 *See id.* and NDX Approval Order, *supra* note 4. The Commission further notes that in eliminating position and exercise limits for FLEX RUT options, Amex is adopting the same additional rules for these options that currently exist for FLEX XMI and NDX options. In addition, the Commission notes that the Exchange's existing rules applicable to position and exercise limits for full-value broad-based index options are used to calculate the position and exercise limits for reduced-value options. The Exchange proposes to amend its rules for those specified broad-based index options that do not have position and exercise limits to specifically state that there will not be position and exercise limits on the reduced-value options on those same broad-based index options. The Exchange also proposes to amend its rules to state that reduced-value options will be aggregated with full-value options when calculating reporting requirements. The Commission finds good cause, consistent with Section 19(b)(2) of the Act, to grant accelerated approval of the proposed rule change prior to the thirtieth day after the date of publication of notice thereof in the **Federal Register.** The Commission notes that it recently approved a substantially similar proposal filed by the Chicago Board Options Exchange, Incorporated (“CBOE”). 19 The Commission received no comments regarding the CBOE proposal. 20 The Commission believes that Amex's proposal to eliminate position and exercise limits for RUT options raises no new regulatory issues. Moreover, accelerating approval of the proposed rule change will allow Amex members and their customers greater hedging and investment opportunities in RUT options without further delay. 19 *See* Securities Exchange Act Release No. 56350 (September 4, 2007) (SR-CBOE-2007-79). 20 *See* Securities Exchange Act Release No. 56191 (August 2, 2007), 72 FR 44894 (August 9, 2007) (SR-CBOE-2007-79). V. Conclusion *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 21 that the proposed rule change (SR-Amex-2007-81), as modified by Amendment No. 1, be, and it hereby is, approved on an accelerated basis. 21 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 22 Florence E. Harmon, Deputy Secretary. 22 17 CFR 200.30-3(a)(12). [FR Doc. E7-17785 Filed 9-10-07; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56350; File No. SR-CBOE-2007-79] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Order Granting Accelerated Approval of Proposed Rule Change and Amendment No. 1 Thereto To Eliminate Position and Exercise Limits for Options on the Russell 2000 Index, and To Specify That Certain Reduced-Value Options on Broad-Based Security Indexes Have No Position and Exercise Limits September 4, 2007. I. Introduction On July 17, 2007, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to eliminate position and exercise limits for options on the Russell 2000 Index (“RUT”) and to specify that reduced-value options on broad-based security indexes for which full-value options have no position and exercise limits similarly have no position and exercise limits. On August 2, 2007, the Exchange filed Amendment No. 1 to the proposed rule change. The proposed rule change was published for comment in the **Federal Register** on August 9, 2007 for a 15-day comment period. 3 The Commission received no comments on the proposed rule change. This order approves the proposed rule change, as modified by Amendment No. 1, on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 56191 (August 2, 2007), 72 FR 44894. II. Description of the Proposal CBOE proposes to amend Rules 24.4 and 24.5 to eliminate position and exercise limits for options on RUT, a broad-based security index. In connection with this change, RUT options would be subject to specific reporting requirements and additional margin provisions imposed by CBOE with respect to options on the Standard & Poor's 500 Index (“SPX”), the Standard & Poor's 100 Index (“OEX”), the Dow Jones Industrial Average (“DJX”), and the Nasdaq-100 Index (“NDX”), other broad-based index options that, under the Exchange's current rules, are not subject to position and exercise limits. The Exchange notes that in approving the elimination of position and exercise limits for SPX, OEX, DJX, and NDX options, the Commission considered the enormous capitalization of each of these indexes and the deep and liquid markets for the securities underlying each index that significantly reduced concerns of market manipulation or disruption in the underlying markets. 4 CBOE noted that the market capitalization of RUT, as of the date of filing of the proposed rule change, was $1.73 trillion and the average daily trading volume (“ADTV”), in the aggregate, for the component securities of RUT, for the period as of three months prior to the date of filing of the proposed rule change, was 535 million shares. For the same period, the ADTV for options on RUT was 79,000 contracts. 4 *See* Securities Exchange Act Release Nos. 44994 (October 26, 2001), 66 FR 55722 (November 2, 2001) (SR-CBOE-2001-22) (“SPX/OEX/DJX Permanent Approval Order”); and 52650 (October 21, 2005), 70 FR 62147 (October 28, 2005) (SR-CBOE-2005-41) (“NDX Approval Order”) (collectively, “SPX/OEX/DJX/NDX Approval Orders”). *See also* Securities Exchange Act Release No. 40969 (January 22, 1999), 64 FR 4911 (February 1, 1999) (SR-CBOE-98-23) (“SPX/OEX/DJX Pilot Approval Order”). The Exchange also states that in the SPX/OEX/DJX/NDX Approval Orders, the Commission noted that the financial requirements imposed by both the Exchange and the Commission serve to address any concerns that an Exchange member or its customer(s) may try to maintain an inordinately large unhedged position in the index options. CBOE notes that these same financial requirements would apply equally to RUT options. The Exchange further notes that it has the authority to impose additional margin upon accounts maintaining underhedged positions and is able to monitor accounts to determine when such action is warranted. As noted in the Exchange's rules, the clearing firm carrying such an account would be subject to capital charges under Rule 15c3-1 under the Act 5 to the extent of any resulting margin deficiency. 6 5 17 CFR 240.15c3-1. 6 *See* Interpretation and Policy .04 to CBOE Rule 24.4. CBOE indicates that the Commission, in the SPX/OEX/DJX/NDX Approval Orders, relied substantially on the Exchange's ability to provide surveillance and reporting safeguards to detect and deter trading abuses arising from the elimination of position and exercise limits on SPX, OEX, DJX, and NDX options. The Exchange represents that it monitors the trading in RUT options in the same manner as trading in SPX, OEX, DJX, and NDX options and that the current CBOE surveillance procedures are adequate to continue monitoring RUT options. In addition, the Exchange intends to impose a reporting requirement on CBOE members or member organizations (other than CBOE market-makers) that trade RUT options. This reporting requirement, which is currently imposed on members who trade SPX, OEX, and NDX options, would require members or member organizations who maintain in excess of 100,000 RUT option contracts on the same side of the market, for their own accounts or for the account of customers, to report information as to whether the positions are hedged and provide documentation as to how such contracts are hedged, in a manner and form required by the Exchange's Department of Market Regulation. 7 The Exchange also would be permitted to specify other reporting requirements, as well as the limit at which the reporting requirement may be triggered. 8 7 *See* Interpretation and Policy .03 to CBOE Rule 24.4. The reporting requirement for DJX options is triggered at 1 million contracts. 8 *Id.* In addition, CBOE proposes to amend Rule 24A.7 relating to the trading of FLEX broad-based index options to eliminate position and exercise limits on FLEX RUT options, and to adopt for FLEX RUT options the same 100,000 contract reporting requirement and the additional margin provisions that currently apply to FLEX SPX, OEX, and NDX options. The Exchange believes that eliminating position and exercise limits for RUT options and FLEX RUT options is consistent with CBOE rules relating to similar broad-based indexes and also would allow CBOE members and their customers greater hedging and investment opportunities. The Exchange notes that it lists and trades several reduced-value options on broad-based indexes for which the Exchange also lists and trades full-value options ( *e.g.* , Mini-SPX Index (“XSP”) options, Mini-Russell 2000 Index (“RMN”) options, and Mini-Nasdaq-100 Index (“MNX”) options). The Exchange states that when it received approval to list and trade reduced-value options on broad-based indexes, the proscribed position and exercise limits were equivalent to the reduced-value contract factor ( *e.g.* , 10) multiplied by the applicable position and exercise limits for the full-value option on the same broad-based index. In other words, the Exchange's existing rules applicable to position and exercise limits for full-value broad-based index options are used to calculate the position and exercise limits for reduced-value options. Conversely, when the Exchange's rules specifically state that certain full-value broad-based index options have no position and exercise limits, the same equally applies to reduced-value options on those same broad-based indexes. The Exchange proposes to amend Rules 24.4 and 24.5 in order to codify this provision. In addition, because position and exercise limits for reduced-value options are aggregated with full-value options for purposes of determining compliance with position and exercise limits, the Exchange proposes to amend Rules 24.4 and 24A.7 to reflect that such aggregation will apply when calculating reporting requirements. Finally, the Exchange proposes to make technical changes to Rules 24.4, 24.5, and 24A.7 to specify that there are no position and exercise limits for European-Style Exercise S&P 100 Index options (“XEO”) and FLEX XEO options, and to add XEO options to the position reporting and margin rules. 9 The Exchange notes that the only difference between OEX and XEO options is the manner in which the respective contracts are exercised ( *i.e.* American-style versus European-style). 9 *See* Securities Exchange Act Release No. 44556 (July 16, 2001), 66 FR 38046 (July 20, 2001) (SR-CBOE-2001-39) (“XEO Approval Order”). III. Discussion After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange. 10 In particular, the Commission believes the proposed rule change is consistent with the requirements of section 6(b)(5) of the Act, which requires that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principals of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. 11 10 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 11 15 U.S.C. 78f(b)(5). Since the inception of standardized options trading, the options exchanges have had rules imposing limits on the aggregate number of options contracts that a member or customer could hold or exercise. These rules are intended to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market so as to benefit the holder of the options position. The Commission notes that it continues to believe that the fundamental purposes of position and exercise limits remain valid. Nevertheless, the Commission believes that experience with the trading of index options as well as enhanced reporting requirements and the Exchange's surveillance capabilities have made it possible to approve the elimination of position and exercise limits on certain broad-based index options. Thus, in 2001, the Commission approved a CBOE proposal to eliminate permanently position and exercise limits for options on SPX, OEX, and DJX, 12 and, in 2005, the Commission approved a CBOE proposal to eliminate permanently position and exercise limits for options on NDX. 13 The Commission believes that the considerations upon which it relied in approving the elimination of position and exercise limits for SPX, OEX, DJX, and NDX options equally apply with respect to options on RUT. 12 *See* SPX/OEX/DJX Permanent Approval Order, *supra* note 4. 13 *See* NDX Approval Order, *supra* note 4. As noted by CBOE, the market capitalization of RUT as of the date of filing of the proposal was $1.73 trillion. The ADTV for the period as of three months prior to the date of filing of the proposed rule change for all underlying components of the index was 535 million shares. The Commission believes that the enormous market capitalization of RUT and the deep, liquid market for the underlying component securities significantly reduce concerns regarding market manipulation or disruption in the underlying market. Removing position and exercise limits for RUT options may also bring additional depth and liquidity, in terms of both volume and open interest, to RUT options without significantly increasing concerns regarding intermarket manipulation or disruption of the options or the underlying securities. In addition, the Commission believes that financial requirements imposed by both the Exchange and the Commission adequately address concerns that a CBOE member or its customer may try to maintain an inordinately large unhedged position in RUT options. Current risk-based haircut and margin methodologies serve to limit the size of positions maintained by any one account by increasing the margin and/or capital that a member must maintain for a large position held by itself or by its customer. 14 Under the proposal, CBOE also would have the authority under its rules to impose a higher margin requirement upon an account maintaining an under-hedged position when it determines a higher requirement is warranted. As noted in the CBOE rules, the clearing firm carrying the account would be subject to capital charges under Rule 15c3-1 under the Act to the extent of any margin deficiency resulting from the higher margin requirement. 14 *See* SPX/OEX/DJX Pilot Approval Order, *supra* note 4. In approving the elimination of position and exercise limits for options on the SPX, OEX, DJX, and NDX, the Commission took note of the enhanced surveillance and reporting safeguards that CBOE had adopted to allow it to detect and deter trading abuses that might arise as a result. 15 CBOE represents that it monitors trading in RUT options in much the same manner as trading in SPX, OEX, DJX, and NDX options. These safeguards, including the 100,000-contract reporting requirement described above, would allow CBOE to monitor large positions in order to identify instances of potential risk and to assess and respond to any market concerns at an early stage. In this regard, the Commission expects CBOE to take prompt action, including timely communication with the Commission and other marketplace self-regulatory organizations responsible for oversight of trading in component stocks, should any unanticipated adverse market effects develop. Moreover, as previously noted, the Exchange has the flexibility to specify other reporting requirements, as well as to vary the limit at which the reporting requirements may be triggered. 15 *See id.* and NDX Approval Order, *supra* note 4. The Commission further notes that in eliminating position and exercise limits for FLEX RUT options, CBOE is adopting the same additional rules for these options that currently exist for FLEX SPX, OEX, and NDX options. In addition, the Commission notes that the Exchange's existing rules applicable to position and exercise limits for full-value broad-based index options are used to calculate the position and exercise limits for reduced-value options. The Exchange proposes to amend its rules for those specified broad-based index options that do not have position and exercise limits to specifically state that there will not be position and exercise limits on the reduced-value options on those same broad-based index options. The Exchange also proposes to amend its rules to state that reduced-value options will be aggregated with full-value options when calculating reporting requirements. The Exchange also is making technical corrections to its rules to reflect that there are no position and exercise limits for XEO options. The Commission notes that position and exercise limits for XEO options were previously eliminated and CBOE is simply updating its rules to reflect this fact. 16 16 *See* XEO Approval Order, *supra* note 9; *see also* SPX/OEX/DJX Permanent Approval Order, *supra* note 4. The Commission finds good cause, consistent with section 19(b)(2) of the Act, 17 to grant accelerated approval of the proposed rule change prior to the thirtieth day after the date of publication of notice thereof in the **Federal Register** . The Commission notes, as stated above, that RUT has similar characteristics to the other broad-based indexes for which position and exercise limits have been eliminated for options on those indexes. Specifically, the Commission believes that the enormous market capitalization of RUT and the deep, liquid market for the underlying component securities significantly reduce concerns regarding market manipulation or disruption in the underlying market. The Commission received no comments regarding the proposed rule change and the Commission believes that the proposed rule change raises no new regulatory issues of material concern. The Commission believes that accelerating approval of the proposed rule change will allow CBOE members and their customers greater hedging and investment opportunities with respect to RUT options without further delay. 17 15 U.S.C. 78s(b)(2). IV. Conclusion *It is therefore ordered,* pursuant to section 19(b)(2) of the Act, 18 that the proposed rule change (SR-CBOE-2007-79), as modified by Amendment No. 1, be, and it hereby is, approved on an accelerated basis. 18 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 19 19 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-17784 Filed 9-10-07; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-56345; File No. SR-NASDAQ-2007-058] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Step-Outs and Transfers of Sales Fees August 31, 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 June 7, 2007, The NASDAQ Stock Market LLC (“Nasdaq”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared primarily by Nasdaq. Nasdaq filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act 3 and Rule 19b-4(f)(6) 4 thereunder so that the proposal was effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Nasdaq proposes to offer functionality to allow Nasdaq members to process
(i)step-outs and
(ii)transferals of Rule 7002 Sales Fees and similar fees of other self-regulatory organizations (“SROs”) and proposes to establish fees for these services. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Nasdaq 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. Nasdaq 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 Nasdaq is proposing to allow Nasdaq members to process step-outs and transferals of Rule 7002 Sales Fees and similar fees of other self-regulatory organizations (“SROs”) through the Nasdaq Exchange and is proposing to establish fees for these services. Step-Outs A step-out is a mechanism for transferring a broker's position in a security in a manner that does not constitute a trade. In one form of a step-out, a party to a previously executed trade transfers its position in the trade to one or more other parties. For example, a broker that buys a large block of stock on behalf of several broker-dealer customers may “step-out” of the trade to transfer and allocate its position to the customers. Thus, under this form of a step-out, there is a single trade on a securities market, coupled with an arrangement between one of the trade counterparties and one or more additional parties to shift the settlement obligations for the trade to the additional parties. In another form of step-out, a broker uses a clearing-only report to transfer its position from an account at one clearing broker to an account at another clearing broker for its own internal accounting purposes. Historically, when The Nasdaq Stock Market, Inc. (“Nasdaq Inc.”) operated as a facility of the National Association of Securities Dealers (“NASD”), step-outs were effected through non-tape, clearing-only trade report entries into the Automated Confirmation Transaction Service (“ACT”). Now that Nasdaq is fully operational as a national securities exchange, ACT serves both as the mechanism for reporting trades that are automatically executed through the Nasdaq Market Center to the tape and has also been licensed for use by the NASD/NASDAQ Trade Reporting Facility (“NASD/NASDAQ TRF”) as a technology platform for collecting over-the-counter (“OTC”) trade reports and reporting them to the tape. In this dual role, ACT continues to accept step-out entries regardless of whether the underlying trade occurred on the Nasdaq Market Center or was an OTC trade reported to the NASD/NASDAQ TRF. Since step-outs are not trades, they are not an inherent OTC activity. Rather, an exchange may appropriately offer step-out capability to its members as a value-added service. Nasdaq notes that the New York Stock Exchange (“NYSE”) and the American Stock Exchange offer step-out functionality to their members. Nasdaq is proposing to allow step-out capability under its rules with respect to any trade to which a Nasdaq member is a party regardless of the market on which the trade was executed. 5 However, the parties to a step-out under Nasdaq rules must all be Nasdaq members and must be parties to an agreement such as the NASD's new Uniform Trade Reporting Facility Service Bureau/Executing Broker Agreement under which the broker transferring the position has received authorization from the transferee broker to act on its behalf. Each party to a step-out under Nasdaq rules will pay $0.029. If the parties to the step-out also transfer the obligation to pay a Sales Fee or similar fee, the party transferring the fee will also pay the fee transfer charge discussed below. 5 The report of a step-out submitted to ACT pursuant to the proposed rule will be marked as a Nasdaq Exchange entry so as to clearly distinguish it from an NASD/Nasdaq TRF entry, which also is reported through ACT. The rule further stipulates that a non-tape, clearing-only submission may not be used for the purpose of reporting a trade execution. Step-out reporting would also continue to be permitted by NASD under the NASD/NASDAQ TRF framework. However, it is Nasdaq's understanding that NASD expects to submit a proposed rule change to the Commission in the near future under which the NASD/NASDAQ TRF would be available for step-outs only when the original trade was reported to it. By contrast, Nasdaq members could use the Nasdaq exchange to effect step-outs from trades executed in any venue, including trades reported to a trade reporting facility. Transfers of Sales Fees Under Rule 7002, Nasdaq charges a sales fee to its members to defray the costs of the fees that it must pay to the Commission under Section 31(b) of the Act. 6 Other self-regulatory organizations charge similar fees. Nasdaq is proposing to adopt rules under which a member may transfer the obligation to pay a sales fee or similar fee associated with a particular trade to another member either at the time of the step-out or at some other time. 7 ACT has historically been used for transfers of the obligation to pay the fees of other SROs, including NASD's transaction fee under Schedule A, Section 3 of the NASD By-Laws. 8 Since Nasdaq became operational as an exchange, ACT has also been used for transfers of sales fee obligations but under the framework of the NASD/ NASDAQ TRF. Nasdaq believes that transfers of obligations to pay sales fees and similar fees may appropriately be conducted pursuant to Nasdaq's rules as an exchange since they are not inherently an OTC function. Accordingly, the proposed rule recognizes that ACT may be used to transfer the obligation to pay sales fees and similar fees if the clearing firms for the trades to which the fees relate are party to an agreement authorizing such transfers between themselves and/or the firms on whose behalf they clear trades. Nasdaq will impose a charge equal to 10% of the transferred fee with a minimum charge of $0.025 and a maximum charge of $0.25. The fee would be paid by the transferring party. An NASD member may continue to use ACT to transfer the obligation to pay an NASD transaction fee under the NASD/NASDAQ TRF framework. However, such action would have to be performed pursuant to NASD rules. NASD has informed Nasdaq that it expects to file a proposed rule change to permit the transfer of the obligation to pay NASD fees under that framework. 6 15 U.S.C. 78ee(b). 7 For example, a fee transfer may occur independent of a step-out in a situation where a party to a riskless principal transaction transfers the obligation to pay the resulting Sales Fee to its customer. 8 Such transfers are indirect. Thus, if Broker A sold shares on Exchange B, Broker A would pay the resulting fee to Exchange B but could impose an offsetting obligation on Broker C for reimbursement. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act 9 and in particular with Sections 6(b)(4) of the Act 10 because the proposal provides for the equitable allocation of reasonable dues, fees, and other charges among members and issuers and other persons using any facility or system which Nasdaq operates or controls. Nasdaq believes that offering step-out and fee transfer functionality benefits its members by enhancing the efficiency of their post-trade operations. Nasdaq's proposed fees are reasonable and are comparable to Nasdaq Inc.'s prior fees for non-tape submissions to ACT. Nasdaq also notes that its proposed fee step-out fee of $0.029 per side compares favorably to NYSE's published step-out fee of $0.25 per trade. 9 15 U.S.C. 78f. 10 15 U.S.C. 78f(b)(4). B. Self-Regulatory Organization's Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments on the proposed rule change were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing proposed rule change has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act 11 and Rule 19b-4(f)(6) thereunder 12 because it does not:
(i)Significantly affect the protection of investors or the public interest;
(ii)impose any significant burden on competition; and
(iii)become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate. Nasdaq believes that the filing may appropriately be designated as “non-controversial” because Nasdaq is proposing a clearer framework for offering value-added services that have consistently been offered through Nasdaq's ACT system. Nasdaq also notes that the NYSE and Amex currently offer their members comparable capabilities for conducting step-outs. At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b-4(f)(6). 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-NASDAQ-2007-058 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-NASDAQ-2007-058. 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 Section, 100 F Street, NE., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at Nasdaq's principal office and on Nasdaq's Web site at *http://nasdaq.complinet.com/file_store/pdf/rulebooks/NASDAQ_SR-NASDAQ-2007-058.pdf* . 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-NASDAQ-2007-058 and should be submitted on or before October 2, 2007. For the Commission by the Division of Market Regulation, pursuant to delegated authority. 13 13 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-17783 Filed 9-10-07; 8:45 am] BILLING CODE 8010-01-P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts AGENCY: United States Sentencing Commission. ACTION: Notice of final action regarding technical and conforming amendments to federal sentencing guidelines effective November 1, 2007. SUMMARY: On May 1, 2007, the Commission submitted to Congress amendments to the federal sentencing guidelines and published these amendments in the **Federal Register** on May 21, 2007. *See* 72 FR 28558. The Commission has made technical and conforming amendments, set forth in this notice, to commentary provisions related to those amendments. DATES: The Commission has specified an effective date of November 1, 2007, for the amendments set forth in this notice. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone:
(202)502-4590. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an independent commission in the judicial branch of the United States government, is authorized by 28 U.S.C. 994(a) to promulgate sentencing guidelines and policy statements for federal courts. Section 994 also directs the Commission to review and revise periodically promulgated guidelines and authorizes it to submit guideline amendments to Congress not later than the first day of May each year. *See* 28 U.S.C. 994(o), (p). Absent an affirmative disapproval by Congress within 180 days after the Commission submits its amendments, the amendments become effective on the date specified by the Commission (typically November 1 of the same calendar year). *See* 28 U.S.C. 994(p). Unlike amendments made to sentencing guidelines, amendments to commentary may be made at any time and are not subject to congressional review. To the extent practicable, the Commission endeavors to include amendments to commentary in any submission of guideline amendments to Congress. Occasionally, however, the Commission determines that technical and conforming changes to commentary are necessary in order to execute correctly the amendments submitted to Congress. This notice sets forth technical and conforming amendments to commentary related to the amendments submitted to Congress on May 1, 2007, that will become effective on November 1, 2007, absent congressional action to the contrary. Authority: USSC Rules of Practice and Procedure 4.1. Ricardo H. Hinojosa, Chair. Retroactive Application of Amendment 5 Submitted to Congress on May 1, 2007 ( see 72 FR 28558; USSG App. C (Amendment 702)) 1. Amendment: Section 1B1.10(c) is amended by striking “and” and by inserting “, and 702” before the period. Reason for Amendment: Amendment 5 submitted to Congress on May 1, 2007 ( *see* 72 FR 28558; USSG App. C (Amendment 702)) corrects typographical errors in subsection (b)(13)(C) of § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) and subsection (b)(1) of § 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien). As stated in the reason for amendment accompanying Amendment 5, this amendment adds Amendment 5 to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range) as an amendment that the court may consider for retroactive application. Technical and Conforming Amendments 2. Amendment: The Commentary to § 2A3.4 captioned “Statutory Provisions” is amended by striking “Provisions” and inserting “Provision”. Section 2A3.5(b)(1)(A), as added by Amendment 4 submitted to Congress on May 1, 2007 ( *see* FR 72 28558; USSG App. C (Amendment 701)), is amended by inserting a comma after “minor”. Chapter Two, Part D is amended in the heading by inserting “AND NARCO-TERRORISM” after “DRUGS”. The Commentary to § 2D1.1 captioned “Application Notes”, as amended by Amendment 9 submitted to Congress on May 1, 2007 ( *see* 72 FR 28558; USSG App. C (Amendment 706)), is further amended by striking subdivision
(D)of Note 10 and inserting the following: “(D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances.—
(i)In General.—If the offense involves cocaine base (`crack') and one or more other controlled substance, determine the base offense level as follows:
(I)Determine the base offense level for the quantity of cocaine base involved in the offense.
(II)Using the marihuana equivalency obtained from the table in this subdivision, convert the quantity of cocaine base involved in the offense to its equivalent quantity of marihuana. Base offense level Marihuana equivalency 38 6.7 kg of marihuana per g of cocaine base. 36 6.7 kg of marihuana per g of cocaine base. 34 6 kg of marihuana per g of cocaine base. 32 6.7 kg of marihuana per g of cocaine base. 30 14 kg of marihuana per g of cocaine base. 28 11.4 kg of marihuana per g of cocaine base. 26 5 kg of marihuana per g of cocaine base. 24 16 kg of marihuana per g of cocaine base. 22 15 kg of marihuana per g of cocaine base. 20 13.3 kg of marihuana per g of cocaine base. 18 10 kg of marihuana per g of cocaine base. 16 10 kg of marihuana per g of cocaine base. 14 10 kg of marihuana per g of cocaine base. 12 10 kg of marihuana per g of cocaine base.
(III)Determine the combined marihuana equivalency for the other controlled substance or controlled substances involved in the offense as provided in subdivision
(B)of this note.
(IV)Add the quantity of marihuana determined under subdivisions
(II)and (III), and look up the total in the Drug Quantity Table to obtain the combined base offense level for all the controlled substances involved in the offense.
(ii)Example.—The case involves 1.5 kg of cocaine, 10 kg of marihuana, and 20 g of cocaine base. Under the Drug Quantity Table, 20 g of cocaine base corresponds to a base offense level of 26. Pursuant to the table in subdivision (II), the base offense level of 26 corresponds to a marihuana equivalency of 5 kg per gram of cocaine base. Therefore, the equivalent quantity of marihuana for the cocaine base is 100 kg (20 g × 5 kg = 100 kg). Pursuant to subdivision (B), the equivalent quantity of marihuana for the cocaine and marihuana is 310 kg. (The cocaine converts to an equivalent of 300 kg of marihuana (1.5 kg × 200 g = 300 kg), which, when added to the 10 kg of marihuana, results in an equivalent quantity of 310 kg of marihuana.) Adding the equivalent quantities of marihuana of all three drug types results in a combined quantity of 410 kg of marihuana (100 kg + 310 kg = 410 kg), which corresponds to a combined base offense level of 28 in the Drug Quantity Table.”. The Commentary to § 2N2.1 captioned “Application Notes” is amended in Note 4 by inserting “and Narco-Terrorism” after “Drugs”. The Commentary to § 5B1.3 captioned “Application Note”, as added by Amendment 4 submitted to Congress on May 1, 2007 ( *see* 72 FR 28558; USSG App. C (Amendment 701)), is amended by striking “(b)” each place it appears and inserting “(a)”. The Commentary to § 5D1.3 captioned “Application Note”, as added by Amendment 4 submitted to Congress on May 1, 2007 ( *see* 72 FR 28558; USSG App. C (Amendment 701)), is amended by striking “(b)” each place it appears and inserting “(a)”. Appendix A (Statutory Index) is amended by striking the lines referenced to “50 U.S.C. 421” and “50 U.S.C. 783(b)” the first place they appear. *Reason for Amendment:* This amendment makes various technical and conforming amendments in order to execute properly amendments submitted to Congress on May 1, 2007, and that will become effective on November 1, 2007. Specifically, the amendment corrects grammatical errors in the commentary to § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact); amends the commentary to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy); changes the heading in Chapter Two, Part D and makes the conforming change to § 2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product); corrects typographical errors in §§ 5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release); and amends Appendix A to remove duplicate listings. [FR Doc. E7-17796 Filed 9-10-07; 8:45 am] BILLING CODE 2211-01-P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts AGENCY: United States Sentencing Commission. ACTION: Notice of extension of the deadline for application to the Victims Advisory Group SUMMARY: The United States Sentencing Commission is issuing this notice to advise the public that the application period for membership in the Victims Advisory Group has been extended to November 13, 2007. The deadline was originally July 30, 2007. This comment period is extended to ensure full dissemination of the information surrounding this group's inception to all appropriate parties and sufficient time for those parties to apply for membership. SUPPLEMENTARY INFORMATION: After considering the request of the Judicial Conference of the United States regarding the formation of a victims advisory group, the United States Sentencing Commission has decided to establish a standing victims advisory group pursuant to 28 U.S.C. 995 and Rule 5.4 of the Commission's Rules of Practice and Procedure. The purpose of the advisory group is
(1)To assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. 994(o);
(2)to provide the Commission its views on the Commission's activities as they relate to victims of crime;
(3)to disseminate information regarding sentencing issues to organizations represented by the advisory group and to other victims of crime and victims advocacy groups, as appropriate; and
(4)to perform any other functions related to victims of crime as the Commission requests. The victims advisory group will consist of not more than 9 members, each of whom may serve not more than two consecutive 3-year terms. The Commission issued an invitation to apply for membership of the victims advisory group on June 19, 2007 (72 FR 33798). Applications were initially due to the Commission on July 30, 2007. The Commission hereby invites additional applications from any person or group who has knowledge, expertise, or experience in the area of federal crime victimization. Requests to be considered for the initial membership of the victims advisory group must be received by the Commission not later than November 13, 2007. Applications may be sent to Michael Courlander at the address listed below. DATES: Applications should be received not later than November 13, 2007. ADDRESSES: Send applications to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Affairs-Victims Advisory Group Application. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone:
(202)502-4590. Authority: USSC Rules of Practice and Procedure 5.4. Ricardo H. Hinojosa, Chair. [FR Doc. E7-17798 Filed 9-10-07; 8:45 am] BILLING CODE 2211-01-P UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts AGENCY: United States Sentencing Commission. ACTION: Notice of final priorities. SUMMARY: In July 2007, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2008. See 72 FR 41795 (July 31, 2007). After reviewing public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these policy priorities. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone:
(202)502-4590. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p). As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, the Commission has identified its policy priorities for the amendment cycle ending May 1, 2008, and possibly continuing into the amendment cycle ending May 1, 2009. The Commission recognizes, however, that other factors, such as the enactment of any legislation requiring Commission action, may affect the Commission's ability to complete work on any or all of its identified priorities by the statutory deadline of May 1, 2008. Accordingly, it may be necessary to continue work on any or all of these issues beyond the amendment cycle ending on May 1, 2008. As so prefaced, the Commission has identified the following priorities:
(1)Implementation of crime legislation enacted during the 110th Congress warranting a Commission response, including
(A)the Animal Fighting Prohibition Enforcement Act of 2007, Public Law 110-22 ; and
(B)any other legislation authorizing statutory penalties or creating new offenses that requires incorporation into the guidelines;
(2)Continuation of its work with Congress and other interested parties on cocaine sentencing policy to implement the recommendations set forth in the Commission's 2002 and 2007 reports to Congress, both entitled *Cocaine and Federal Sentencing Policy* , and to develop appropriate guideline amendments in response to any related legislation;
(3)Continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on appropriate responses to *United States* v. *Booker* and *United States* v. *Rita,* including any appropriate amendments to the guidelines or other changes to the *Guidelines Manual* with respect to those decisions and other cases that may be adjudicated during this amendment cycle, as well as continuation of its monitoring and analysis of post- *Booker* federal sentencing practices, data, case law, and other feedback, including reasons for departures and variances stated by sentencing courts;
(4)Continuation of its policy work regarding immigration offenses, specifically, offenses sentenced under §§ 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) and 2L1.2 (Unlawfully Entering or Remaining in the United States) and implementation of any immigration legislation that may be enacted;
(5)Continuation of its policy work, in light of the Commission's prior and ongoing research on criminal history, to develop and consider possible options that might improve the operation of Chapter Four (Criminal History).
(6)Continuation of guideline simplification efforts with consideration and possible development of options for guideline amendments that might improve the operation of the sentencing guidelines;
(7)Resolution of a number of circuit conflicts, pursuant to the Commission's continuing authority and responsibility, under 28 U.S.C. 991(b)(1)(B) and *Braxton* v. *United States* , 500 U.S. 344 (1991), to resolve conflicting interpretations of the guidelines by the federal courts;
(8)Consideration of a limited number of miscellaneous guideline application issues, including issues concerning the determination of harm and the definition of “victim” in certain types of cases; the treatment under the guidelines of counterfeit controlled substances, human growth hormone (HGH), Prescription Drug Marketing Act of 1987 (Pub. L. 100-293) offenses, and other food and drug violations; specific concerns regarding application of the Chapter Three enhancements for abuse of trust and obstruction; and other miscellaneous priority issues coming to the Commission's attention; and
(9)Preparation and dissemination, pursuant to the Commission's authority under 28 U.S.C. 995(a)(12)-(16), of research reports on various aspects of federal sentencing policy and practice, such as updating the Commission's 1991 report to Congress entitled *Mandatory Minimum Penalties in the Federal Criminal Justice System* and studying alternatives to incarceration, including information on and possible development of any guideline amendments that might be appropriate in response to any research reports. Authority: 28 U.S.C. 994(a), (o); USSC Rules of Practice and Procedure 5.2. Ricardo H. Hinojosa, Chair. [FR Doc. E7-17799 Filed 9-10-07; 8:45 am] BILLING CODE 2211-01-P DEPARTMENT OF STATE [Public Notice 5932] Reinstatement of Statutory Debarment Under the International Traffic in Arms Regulations ACTION: Notice. SUMMARY: Notice is hereby given that the Department of State has lifted the statutory debarment against Equipment & Supply, Inc.
(ESI)pursuant to Section 38 (g)(4) of the Arms Export Control Act
(AECA)(22 U.S.C. 2778). DATES: *Effective Date:* Effective July 30, 2007. FOR FURTHER INFORMATION CONTACT: David Trimble, Director, Office of Defense Trade Controls Compliance, Bureau of Political-Military Affairs, Department of State
(202)663-2477. SUPPLEMENTARY INFORMATION: Section 38(g)(4) of the AECA (22 U.S.C. 2778) and Section 127.11 of the ITAR prohibit the issuance of export licenses or other approvals to a person, or any party to the export, who has been convicted of violating the AECA and certain other U.S. criminal statutes enumerated at Section 38(g)(1)(A) of the AECA and Section 120.27 of the ITAR. A person convicted of violating the AECA is also subject to statutory debarment under Section 127.7 of the ITAR. In August 2004, ESI was convicted of one count of violating Section 38 of the AECA and the ITAR. Mr. Andrew Adams, then president of ESI, separately pled guilty to one count of violating 18 U.S.C. Section 1361 by attempting to commit depredation against property manufactured for the United States. Count one of Mr. Adams' indictment (02-CR-262) alleges that he attempted to export a defense article specifically designed or modified for use in the S-65 Sikorsky military helicopter. Subsequently, the Department of State statutorily debarred ESI (see 70 FR 189, September 30, 2005). Because Mr. Adams is affiliated with the debarred entity, the presumption of denial for licenses or other State authorizations was applied to him as well. Section 38(g)(4) of the AECA permits termination of debarment after consultation with the other appropriate U.S. agencies and after a thorough review of the circumstances surrounding the conviction and a finding that appropriate steps have been taken to mitigate any law enforcement concerns. The Department of State has determined that ESI has taken appropriate steps to address the causes of the violations and to mitigate any law enforcement concerns. Therefore, in accordance with Section 38(g)(4) of the AECA, the debarment against ESI was rescinded, effective July 30, 2007. The presumption of denial for licenses or other State authorizations applied to Mr. Adams has also been lifted. The effect of this notice is that ESI and Mr. Adams may participate without prejudice in the export of defense articles and defense services subject to Section 38 of the AECA and the ITAR. Dated: August 22, 2007. Stephen D. Mull, Acting Assistant Secretary of State, Bureau of Political-Military Affairs Department of State. [FR Doc. E7-17902 Filed 9-10-07; 8:45 am] BILLING CODE 4710-25-P DEPARTMENT OF STATE [Public Notice 5931] Bureau of Political-Military Affairs; Statutory Debarment Under the Arms Export Control Act and the International Traffic in Arms Regulations ACTION: Notice. SUMMARY: Notice is hereby given that the Department of State has imposed statutory debarment pursuant to § 127.7(c) of the International Traffic in Arms Regulations (“ITAR”) (22 CFR Parts 120 to 130) on persons convicted of violating or conspiring to violate Section 38 of the Arms Export Control Act, as amended, (“AECA”) (22 U.S.C. 2778). DATES: *Effective Date:* Date of conviction as specified for each person. FOR FURTHER INFORMATION CONTACT: David Trimble, Director, Office of Defense Trade Controls Compliance, Bureau of Political-Military Affairs, Department of State
(202)663-2980. SUPPLEMENTARY INFORMATION: Section 38(g)(4) of the AECA, 22 U.S.C. 2778(g)(4), prohibits the Department of State from issuing licenses or other approvals for the export of defense articles or defense services where the applicant, or any party to the export, has been convicted of violating certain statutes, including the AECA. In implementing this provision, Section 127.7 of the ITAR provides for “statutory debarment” of any person who has been convicted of violating or conspiring to violate the AECA. Persons subject to statutory debarment are prohibited from participating directly or indirectly in the export of defense articles, including technical data, or in the furnishing of defense services for which a license or other approval is required. Statutory debarment is based solely upon conviction in a criminal proceeding, conducted by a United States Court, and as such the administrative debarment procedures outlined in Part 128 of the ITAR are not applicable. The period for debarment will be determined by the Assistant Secretary for Political-Military Affairs based on the underlying nature of the violations, but will generally be for three years from the date of conviction. At the end of the debarment period, export privileges may be reinstated only at the request of the debarred person followed by the necessary interagency consultations, after a thorough review of the circumstances surrounding the conviction, and a finding that appropriate steps have been taken to mitigate any law enforcement concerns, as required by Section 38(g)(4) of the AECA. Unless export privileges are reinstated, however, the person remains debarred. Department of State policy permits debarred persons to apply to the Director, Office of Defense Trade Controls Compliance, for reinstatement beginning one year after the date of the debarment. Any decision to grant reinstatement can be made only after the statutory requirements under Section 38(g)
(4)of the AECA have been satisfied. Exceptions, also known as transaction exceptions, may be made to this debarment determination on a case-by-case basis at the discretion of the Assistant Secretary of State for Political-Military Affairs, after consulting with the appropriate U.S. agencies. However, such an exception would be granted only after a full review of all circumstances, paying particular attention to the following factors: Whether an exception is warranted by overriding U.S. foreign policy or national security interests; whether an exception would further law enforcement concerns that are consistent with the foreign policy or national security interests of the United States; or whether other compelling circumstances exist that are consistent with the foreign policy or national security interests of the United States, and that do not conflict with law enforcement concerns. Even if exceptions are granted, the debarment continues until subsequent reinstatement. Pursuant to Section 38(g)(4) of the AECA and Section 127.7(c) of the ITAR, the following persons are statutorily debarred as of the date of their AECA conviction:
(1)Leib Kohn, May 22, 2007, U.S. District Court, District of Connecticut, Case # 3:04CR125.
(2)Electro-Glass Products, July 13, 2007, U.S. District Court, District of Pennsylvania, Case# 06-00117-001. As noted above, at the end of the three-year period following the date of conviction, the above named persons/entities remain debarred unless export privileges are reinstated. Debarred persons are generally ineligible to participate in activity regulated under the ITAR (see e.g., sections 120.1(c) and (d), and 127.11(a)). Also, under Section 127.1(c) of the ITAR, any person who has knowledge that another person is subject to debarment or is otherwise ineligible may not, without disclosure to and written approval from the Directorate of Defense Trade Controls, participate, directly or indirectly, in any export in which such ineligible person may benefit therefrom, or have a direct or indirect interest therein. This notice is provided for purposes of making the public aware that the persons listed above are prohibited from participating directly or indirectly in activities regulated by the ITAR, including any brokering activities, and in any export from or temporary import into the United States of defense articles, related technical data, or defense services in all situations covered by the ITAR. Specific case information may be obtained from the Office of the Clerk for the U.S. District Courts mentioned above, and by citing the court case number provided. Dated: August 27, 2007. Michael W. Coulter, Acting Assistant Secretary, Bureau of Political-Military Affairs, Department of State. [FR Doc. E7-17905 Filed 9-10-07; 8:45 am] BILLING CODE 4710-25-P DEPARTMENT OF STATE [Public Notice 5906] Notice of Meeting of the Cultural Property Advisory Committee In accordance with the provisions of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601 *et seq.* ) (the Act) there will be a meeting of the Cultural Property Advisory Committee on Thursday, October 4, 2007, from approximately 9 a.m. to 5 p.m., and on Friday, October 5, from approximately 9 a.m. to 1 p.m., at the Department of State, Annex 44, Room 840, 301 4th St., SW., Washington, DC. At this meeting the Committee will conduct its ongoing review function with respect to the Memorandum of Understanding Between the Government of the United States of America and the Government of the Kingdom of Cambodia Concerning the Imposition of Import Restrictions on Khmer Archaeological Material; and, with respect to the Memorandum of Understanding with the Government of the Republic of Honduras Concerning the Imposition of Import Restrictions on Archaeological Material from the Pre-Columbian Cultures of Honduras. This meeting is for the Committee to satisfy its ongoing review responsibility of the effectiveness of agreements pursuant to the Act and will focus its attention on Article II of the MOUs. This is not a meeting to consider extension of the MOUs. Such a meeting will be scheduled in the future at which time a public session will be held. The Committee's responsibilities are carried out in accordance with provisions of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601 *et seq.* ). The U.S.-Cambodia MOU, the U.S.-Honduras MOU, the designated lists of restricted categories, the text of the Act, and related information may be found at *http://exchanges.state.gov/culprop.* The meeting on October 4-5 will be closed pursuant to 5 U.S.C. 552b(c)(9)(B) and 19 U.S.C. 2605(h). Dated: August 31, 2007. C. Miller Crouch, Acting Assistant Secretary for Educational and Cultural Affairs, Department of State. [FR Doc. E7-17871 Filed 9-10-07; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF STATE [Public Notice 5930] Advisory Panel to the United States Section of the North Pacific Anadromous Fish Commission; Notice of Public Meeting The Advisory Panel to the United States Section of the North Pacific Anadromous Fish Commission will meet on September 27, 2007, via conference call. This session will involve discussion of the Fifteenth Annual Meeting of the North Pacific Anadromous Fish Commission, to be held on October 8-12, 2007 in Valdivostok, Russia. The discussion will begin at 3:30 p.m. EST and is open to the public. Requests for the conference call-in phone number or for further information on the meeting should be directed to Ms. Nicole M. Ricci, Office of Marine Conservation (OES/OMC), Room 2758, U.S. Department of State, Washington, DC 20520-7818. Ms. Ricci can be reached by telephone at
(202)647-1073 or by Fax
(202)736-7350. Dated: August 28, 2007. David A. Balton, Deputy Assistant Secretary for Oceans and Fisheries, Department of State. [FR Doc. E7-17879 Filed 9-10-07; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF TRANSPORTATION Office of the Secretary Aviation Proceedings; Agreements Filed the Week Ending July 6, 2007 The following Agreements were filed with the Department of Transportation under the sections 412 and 414 of the Federal Aviation Act, as amended (49 U.S.C. 1383 and 1384) and procedures governing proceedings to enforce these provisions. Answers may be filed within 21 days after the filing of the application. *Docket Number:* OST-2007-28672. *Date Filed:* July 3, 2007. *Parties:* Members of the International Air Transport Association. *Subject:* TC12 North Atlantic, Canada, USA-Europe, Expedited Composite Resolutions, Intended effective date: July 1, 2007. Renee V. Wright, Program Manager, Docket Operations, Federal Register Liaison. [FR Doc. E7-17847 Filed 9-10-07; 8:45 am] BILLING CODE 4910-9X-P DEPARTMENT OF TRANSPORTATION Office of the Secretary Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (Formerly Subpart Q) During the Week Ending July 6, 2007 The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 *et seq.* ). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings. *Docket Number:* OST-2007-28657. *Date Filed:* July 2, 2007. *Due Date for Answers, Conforming Applications, or Motion to Modify Scope:* July 23, 2007. *Description:* Application of McCall Aviation, Inc., requesting authority to operate scheduled passenger service as a commuter air carrier. *Docket Number:* OST-2007-28675. *Date Filed:* July 3, 2007. *Due Date for Answers, Conforming Applications, or Motion to Modify Scope:* July 24, 2007. *Description:* Application of Thomas Cook Airlines UK Limited, (“Thomas Cook UK”) requesting a foreign air carrier permit so that Thomas Cook UK will be able to exercise new rights made available to European air carriers pursuant to the Air Transport Agreement between the United States and the European Community and the Member States of the European Union (US-EC Agreement). Thomas Cook UK also requests an amendment to its existing exemption to the extent necessary to enable it to provide the services covered by this application while the Department evaluates Thomas Cook UK's application for a foreign air carrier permit. *Docket Number:* OST-2007-27060. *Date Filed:* July 5, 2007. *Due Date for Answers, Conforming Applications, or Motion to Modify Scope:* July 25, 2007. *Description:* Application of Zoom Airlines Limited (“Zoom”), requesting amendment no. 2 to its application for a foreign air carrier permit and an exemption to conduct:
(i)Foreign scheduled and charter air transportation of persons, property and mail from any point(s) behind any Member State(s) of the European Community via any point(s) in any Member State(s) and intermediate points to any point(s) in the United States and beyond;
(ii)foreign scheduled and charter air transportation of persons, property and mail between any point(s) in the United States and any point(s) in any member of the European Common Aviation Area;
(iii)foreign scheduled and charter cargo air transportation between any point(s) in the United States and any other points(s);
(iv)other charters pursuant Part 212; and
(v)transportation authorized by any additional route or other right(s) made available to European Community carriers in the future. *Docket Number:* OST-2007-28705. *Date Filed:* July 6, 2007. *Due Date for Answers, Conforming Applications, or Motion to Modify Scope:* July 27, 2007. *Description:* Application of Virgin Blue International Airlines Pty Ltd (“VBIA”), requesting a foreign air carrier permit and an exemption in order to engage in scheduled foreign air transportation of persons, property and mail between the United States and Australia to the full extent authorized by the Air Transport Agreement between the United States of the America and the Government of the Commonwealth of Australia (“the US-Australia Agreement”). VBIA also requests authority to engage in charter trips in foreign air transportation and other charters. Renee V. Wright, Program Manager, Docket Operations, Federal Register Liaison. [FR Doc. E7-17848 Filed 9-10-07; 8:45 am] BILLING CODE 4910-9X-P DEPARTMENT OF TRANSPORTATION Office of the Secretary Informational Notice Regarding Certain Substituted Specimens AGENCY: Office of the Secretary, U.S. Department of Transportation. SUMMARY: The Office of Drug and Alcohol Policy and Compliance (ODAPC) is taking action to rectify what may be a mischaracterization of some test results as being substituted specimens. In appropriate cases, ODAPC will reconsider the employee's original refusal result, when reported from September 1998 through May 2003, and based upon a “substitution” finding in a given numerical range. FOR FURTHER INFORMATION CONTACT: Mark Snider, U.S. Department of Transportation, Office of the Secretary, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue, SE., Washington, DC 20590; or Telephone
(202)366-3784; or E-mail *mark.snider@dot.gov.* SUPPLEMENTARY INFORMATION: In September 1998, Department of Health and Human Services
(HHS)issued guidance (Program Document 035; September 28, 1998), for laboratories to determine when to report a urine specimen to the Medical Review Officer
(MRO)as substituted. Under this guidance, a substituted specimen must have had a creatinine level of 5 mg/dL or less *and* a specific gravity less than or equal to 1.001 or greater than or equal to 1.020. On the same date—September 28, 1998—ODAPC issued a memorandum to MROs as a companion piece to HHS's PD 035. In its memorandum, ODAPC instructed MROs to consider laboratory reported substituted results as refusals to test. There were no provisions for MRO review of substituted laboratory results. The Department of Transportation amended part 40 (65 FR 79462), effective January 18, 2001, to put into practice, among other things, procedures for MRO review of substituted specimens. The amendment held that employees could show MROs that they had medical reasons for producing the result and present evidence that they could naturally produce specimens meeting the HHS criteria for substituted specimens. MROs could cancel a “substituted” result in these circumstances. In May 2003, in response to scientific information that suggested that some people could naturally produce urine with creatinine in the 2 to 5 mg/dL range, the Department of Transportation issued an interim final rule (68 FR 31624; May 28, 2003) directing MROs not to treat these results as substituted, but as negative-dilute. Unlike part 40 procedures with other negative-dilute results however, MROs were instructed to direct the employer to have the employee return to the collection site for a directly observed collection with no prior notice. The result of the observed collection would be the result of the record for the entire testing event. HHS revised its Mandatory Guidelines with an effective date of November 1, 2004 (69 FR 19659; April 13, 2004). Among the revisions contained in the HHS Guidelines was the requirement that laboratories modify substituted specimen criteria. Under the revised HHS Guidelines, there were, and are, no specimens with creatinine levels greater than or equal to 2 mg/dL being reported by laboratories as substituted. Substituted results with creatinine in the 2 to 5 mg/dL range occurring between September 1998 and May 2003 were, according to the valid regulations in effect at that time, properly interpreted as refusals to test. However, in the interest of fairness the Department of Transportation is providing to individuals with such results the opportunity to have their drug test result reconsidered. If an employee's substituted drug test result is reconsidered, employers will be instructed not to report the substituted result to other DOT regulated employers requesting the employee's drug and alcohol testing history as required in 49 CFR part 40.25. The Department of Transportation is issuing this notice to set forth the procedures for such reconsideration. According to the notice, we intend to grant reconsideration only to those employees who present credible medical documentation that demonstrates their ability to naturally produce urine specimens with creatinine concentrations equal to or greater than 2, but less than or equal to 5 mg/dL *and* a specific gravity less than or equal to 1.001 or greater than or equal to 1.020. Employers who discover that an employee was reported to have a refusal to test as the result of a laboratory finding of creatinine concentration equal to or greater than 2, but less than or equal to 5 mg/dL, prior to May 28, 2003, should inform the employee that he or she may submit documentation to ODAPC for reconsideration. To be viewed by ODAPC as credible medical documentation, the employee would have to submit information from a licensed physician or a MRO which documents that the employee can physiologically produce urine meeting the creatinine and specific gravity criteria. ODAPC will also accept an MRO verified drug result from the employee which resulted from a Department of Transportation required drug testing event that demonstrates the employee's ability to produce a creatinine level equal to or greater than 2, but less than or equal to 5 mg/dL. This verified result must have been reported by the MRO to the employer after May 28, 2003. The notice also provides the address that employees should send their documentation. ODAPC will carefully review every submission and will respond in writing to each employee who seeks to have his or her original refusal to test result reviewed. Issued this 5th day of September 2007, at Washington, DC. Jim L. Swart, Acting Director, Office of Drug and Alcohol Policy and Compliance. EN11SE07.007 EN11SE07.008 EN11SE07.009 [FR Doc. 07-4428 Filed 9-10-07; 8:45 am]
Connectionstraces to 22
Traces to 22 documents
9 references not yet in our index
  • 10 CFR 2
  • 17 CFR 240.19
  • 17 CFR 240.15
  • Pub. L. 110-22
  • 500 U.S. 344
  • Pub. L. 100-293
  • 49 USC 1383
  • 14 CFR 301.201
  • 49 CFR 40.25
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Notices
Notice of application (“Application”) for exemption, pursuant to section 6(c) of the Investment Company Act of 1940, as amended (the “1940 Act”), from the provisions of sections 9(a), 13(a), 15(a) and 15(b) of the Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder
C.F.R.§ 50.92
C.F.R.§ 2.309
C.F.R.§ 50.91
C.F.R.§ 50.59
C.F.R.§ 50.36
C.F.R.§ 51.22
U.S.C.§ 78s
U.S.C.§ 78f
U.S.C.§ 552
SCOTUS500 U.S. 344
Cite10 CFR 2
Cite17 CFR 240.19
Cites 31 · showing 12Cited by 0 across 0 sources
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