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Code · REGISTER · 2007-12-31 · DEPARTMENT OF JUSTICE · Notices

Notices. Notice of meeting

78,630 words·~357 min read·/register/2007/12/31/07-6241

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

BILLING CODE 4410-11-M DEPARTMENT OF JUSTICE Drug Enforcement Administration Manufacturer of Controlled Substances; Notice of Application Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on December 10, 2007, Chattem Chemicals, Inc., 3801 St. Elmo Avenue, Building 18, Chattanooga, Tennessee 37409, made application by letter to the Drug Enforcement Administration
(DEA)to be registered as a bulk manufacturer of Oripavine (9330), a basic class of controlled substance listed in schedule II. The company plans to manufacture the listed controlled substance in bulk for sale to its customers. Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a). Any such comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537; or any being sent via express mail should be sent to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than February 29, 2008. Dated: December 20, 2007. Joseph T. Rannazzisi, Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration. [FR Doc. E7-25329 Filed 12-28-07; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF JUSTICE Drug Enforcement Administration Jon Karl Dively, D.D.S.; Denial of Application On December 14, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Jon Karl Dively, D.D.S. (Respondent), of Macomb, Illinois. The Show Cause Order proposed the denial of Respondent's pending application for a DEA Certificate of Registration as a practitioner, on the ground that he had committed acts which would render his registration “inconsistent with the public interest.” Show Cause Order at 1 (citing 21 U.S.C. 823(f)). The Show Cause Order specifically alleged that Respondent, while holding a DEA registration (which he had since surrendered), had “prescribed large amounts of hydrocodone, a schedule III controlled substance, to [his] wife, on many occasions,” and did so “with knowledge that she was addicted to” the drug. *Id.* The Show Cause Order alleged that “[t]he prescriptions were not written in the usual course of medical practice,” and thus violated Federal law and DEA regulations. *Id* . The Show Cause Order further alleged that “[f]rom at least mid-2003 to May 2005,” Respondent had “abused hydrocodone.” *Id* . Relatedly, the Show Cause Order alleged that Respondent had admitted to DEA investigators that he was “taking regularly Oxycontin and oxycodone,” notwithstanding that he was being treated for drug and alcohol abuse. *Id* . at 1-2. The Show Cause Order also alleged that during a December 6, 2005 interview with DEA investigators, Respondent appeared to be impaired but denied using controlled substances and refused to take a drug test. *Id* . at 2. Relatedly, the Show Cause Order alleged that in January 2006, DEA received a letter from an individual affiliated with Rush Behavioral Health, which indicated that Respondent “needed counseling, close supervision of [his] medications, verified attendance at Alcoholic Anonymous and monitoring by a physician's monitoring program.” *Id* . On December 27, 2006, the Show Cause Order was served on Respondent by certified mail as evidenced by the signed return-receipt card. Thereafter, on January 16, 2007, Respondent submitted a letter in which he expressly waived his right to a hearing. Respondent did, however, offer a response to each of the allegations of the Show Cause Order. *See* Ltr of Resp. to Hearing Clerk (dated Jan. 3, 2007). Based on Respondent's letter, I find that he has waived his right to a hearing. *See* 21 CFR 1301.43(c). However, in accordance with 21 CFR 1301.43(c), Respondent's letter is made a part of the record and will “be considered in light of the lack of opportunity for cross-examination in determining the weight to be attached to matters of fact asserted therein.” *Id* . Having considered the entire record, I issue this Decision and Final Order and make the following findings. Findings On December 28, 2005, Respondent, an Illinois licensed dentist, applied for a DEA registration to handle controlled substances in schedules II through V. Respondent had surrendered his DEA registration on December 6, 2005, upon the conclusion of an interview with a DEA Special Agent (SA), a DEA Diversion Investigator (DI), and an Inspector from the Illinois Department of Financial and Professional Regulation. Respondent first came to the attention of this Agency on September 26, 2005, when the state Inspector notified a DI that he had received information indicating that Respondent was prescribing schedule III controlled substances containing hydrocodone to his wife. 21 CFR 1308.13(e). Upon receipt of this information, the DI determined that several pharmacies had filled the prescriptions including DrugStore.com (whose prescriptions are filled by Rite Aid Pharmacy), Osco Drug, and Hy-Vee Pharmacy. The DI then contacted each entity and requested that it provide a list of the prescriptions it had filled which had been issued by Respondent. Subsequently, Rite Aid provided a spreadsheet listing thirty-seven controlled-substance prescriptions it filled which Respondent had issued in his wife's name. The prescriptions covered the period beginning on October 29, 2003, and ending on January 24, 2005. Osco Drug also provided a list of Respondent's controlled-substance prescriptions which it filled. This list included seven prescriptions which Respondent issued between September 21 and December 26, 2003. Thereafter, on December 6, 2005, DEA and State investigators visited Respondent and interviewed him. When asked about the prescriptions he had written for his wife, Respondent asserted that he had done so because she had herniated cervical discs. Respondent acknowledged, however, that he issued the prescriptions outside of the course of his professional practice as a dentist; he then admitted that he had supplied his wife because she was addicted to hydrocodone. Respondent further asserted that he had stopped writing the prescriptions six months earlier. Moreover, during the interview, Respondent's speech was slow and slurred, his thought process was disjointed, and he appeared to have trouble completing his thoughts. When the investigators expressed to Respondent their concern that he was then impaired, Respondent denied that this was so. The State Inspector then suggested that Respondent obtain a drug test to prove that he was not impaired. Respondent then told investigators that he had herniated lumbar discs and had been prescribed fentanyl patches, Ultracet, and Lidoderm for the condition by his prior physician. He further related that his new physician, whom he met at an Alcoholic Anonymous meeting, was prescribing Oxycontin for him. Respondent then agreed to voluntarily surrender his DEA registration. Two days later, Respondent telephoned the DI and left a voice mail message. In the message, Respondent questioned the need for a drug test, as well as why the DI could not have allowed Respondent to continue with his registration and watch him “like a hawk.” In the message, Respondent's speech was still slow and slurred. On January 9, 2006, Respondent again contacted the DI asking how long it would take to regain his DEA registration. In that conversation, Respondent asked the DI whether he had received a letter from Rush Behavioral Health, a Chicago-based clinic which treats drug and alcohol addiction. The DI related to Respondent that he had not received the letter. On January 17, 2006, the DI received a letter from an Intake Coordinator at Rush. According to the investigative report, in the letter, the Intake Coordinator noted that she had evaluated Respondent and had found that from mid-2003 through May 2005, Respondent had written Vicodin prescriptions in his wife's name for his personal use. 1 According to the report, the Intake Coordinator noted that Respondent “seem[ed] impaired,” and “very anxious.” The letter added, however, that “this could have been from this high dosage” of Provigil. The letter added that Respondent needed counseling, close supervision of his medications, accountable attendance at AA, and monitoring by a physician's monitoring program to get his controlled-substance prescribing authority back. 1 The letter was not submitted into the record. Rather, its contents were summarized in an investigative report. The report does not, however, establish what the Intake Coordinator's qualifications and duties are, the date she evaluated Respondent, and what the basis for this finding was. On February 6, 2006, Respondent again called the DI and asked whether he had received the letter from Rush. Respondent also told the DI that he was seeing a new psychiatrist. Finally, Respondent stated that while his wife's physician had attempted to get her off of narcotics, it just made matters worse. Respondent added that his wife had quit “cold turkey” and that “it was rough.” In his letter responding to the Show Cause Order, Respondent admitted that he had prescribed large amounts of schedule III drugs containing hydrocodone to his wife knowing that she was addicted to the drug, and that the prescriptions were not issued in the usual course of his professional practice. Resp. Ltr. at 2. Respondent denied, however, that he had abused hydrocodone between mid-2003 and May 2005. *Id* . He also denied that he was under treatment for drug and alcohol abuse during this period. *Id* . Respondent also asserted that he had been sober for twenty-five years. *Id* . Respondent further admitted that he appeared to be impaired during the December 6, 2005 interview. *Id* . Respondent asserted, however, that this was because of his use of Provigil pursuant to a prescription. *Id* . Respondent further admitted that during the interview, he denied abusing controlled substances and refused to take a drug test. *Id* . Respondent asserted, however, that “on December 7, 2005, I did submit to a drug analysis of urine.” *Id* . Finally, Respondent admitted that during the interview, he had admitted that he “was regularly taking Oxycontin and Oxycodone for a back injury” as prescribed by his physician. *Id* . Respondent further stated that he could neither admit nor deny the allegation regarding the letter from Rush Behavioral Health because he had not seen the letter. The record also contains a copy of a consent order which Respondent entered into with the Illinois Department of Financial and Professional Regulation. The consent order noted that “[t]he Department alleges that Respondent engaged in improper medication prescribing practice.” Consent Order at 1. Respondent pled no contest and agreed to various sanctions including the suspension of his dental license for two weeks followed by twenty-four months of probation. During the probation, Respondent is required to submit to monthly alcohol-drug testing on twenty-four hours notice, to complete ten hours of continuing education in jurisprudence, and to file quarterly reports with the State regarding his activities. Respondent was also fined $1,000. Discussion Section 303(f) provides that “[t]he Attorney General may deny an application for such registration if he determines that the issuance of such registration would be inconsistent with the public interest.” 21 U.S.C. 823(f). In making the public interest determination, the Act requires the consideration of the following factors:
(1)The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2)The applicant's experience in dispensing * * * controlled substances.
(3)The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4)Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5)Such other conduct which may threaten the public health and safety. *Id.* “[T]hese factors are considered in the disjunctive.” *Robert A. Leslie, M.D.* , 68 FR 15227, 15230 (2003). I may rely on any one or a combination of factors, and may give each factor the weight I deem appropriate in determining whether an application for a registration should be denied. *Id.* Moreover, I am “not required to make findings as to all of the factors.” *Hoxie* v. *DEA,* 419 F.3d 477, 482 (6th Cir. 2005); *see also Morall* v. *DEA,* 412 F.3d 165, 173-74 (D.C. Cir. 2005). While I have considered all of the factors, I conclude that the Government has made out a *prima facie* case under Factors Two and Four to deny Respondent's application based on his prescribing of controlled substances to his wife. While I am mindful that the State has allowed Respondent to maintain his dental license, Respondent has not presented sufficient evidence to establish that he should be entrusted with a new DEA registration. I therefore conclude that Respondent's application should be denied. Factors Two and Four—Respondent's Experience in Dispensing Controlled Substances and Record of Compliance With Applicable Laws Under DEA regulations, “[a] prescription for a controlled substance * * * must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice* * * . An order purporting to be a prescription issued not in the usual course of professional treatment * * * is not a prescription within the meaning and intent of [the CSA] and * * * the person issuing it, shall be subject to the penalties provided for violations of the provisions of law related to controlled substances.” 21 CFR 1306.04(a). As the Supreme Court recently explained, “the prescription requirement * * * ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse.” *Gonzales* v. *Oregon,* 126 S.Ct. 904, 925
(2006)(citing *United States* v. *Moore,* 423 U.S. 122, 135 (1975)). The record in this case establishes that Respondent issued numerous prescriptions for controlled substances in the name of his wife. While Respondent initially maintained that he wrote the prescriptions because his wife had herniated cervical discs, Respondent subsequently admitted that in doing so, he acted outside of the course of his professional practice as a dentist. Respondent later admitted that he had written the prescriptions because his wife was addicted to hydrocodone. Respondent thus violated Federal law. The Government also alleged that Respondent was personally abusing controlled substances. More specifically, the Government alleged that Respondent was impaired during the December 2005 interview and that he had admitted to taking Oxycontin and oxycodone “despite the fact that [he was] under treatment for addiction.” Show Cause Order at 2. It is true that the evidence indicates that Respondent slurred his speech during the interview (and in phone calls thereafter) and that he had trouble completing his thoughts. The Government, however, has not proved that Respondent's symptoms were caused by his abuse of a controlled substance or that either of the controlled substances he was then taking was not lawfully prescribed to him to treat a legitimate medical condition. Indeed, the letter from the Intake Coordinator at Rush supported Respondent's contention that his symptoms could have been caused by the Provigil, and the Government produced no evidence establishing that this drug was not lawfully prescribed to him, or that he was taking in excess of the dosage prescribed by his physician. Nor did the Government offer any evidence rebutting Respondent's contention that the Oxycontin that he admitted to “regularly taking” had been lawfully prescribed to him. Finally, while the Government alleged in the Show Cause Order that Respondent had refused to take a drug test upon being challenged to do so by the State inspector, Respondent asserts that he did so. Here again, the Government offered no evidence to rebut Respondent's contention. Indeed, the Government produced no evidence showing that it demanded that Respondent produce the test results and that he failed to do so. I therefore conclude that the allegations that Respondent was personally abusing controlled substances at the time of the December 2005 interview and thereafter are not proved by substantial evidence. 2 2 There is also some evidence suggesting that Respondent admitted to the Intake Coordinator at Rush that some of the prescriptions he wrote for his wife were for his personal use. This conduct would also violate Federal law. *See* 21 U.S.C. 843(a)(3) (“It shall be unlawful for any person knowingly or intentionally * * * to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”). The letter which reports these admissions was not included in the record. Moreover, this evidence does not establish that Respondent was abusing controlled substances at the time of the December 2005 interview and thereafter. While I reject the allegations of personal abuse, Respondent's numerous violations of Federal law in prescribing controlled substances to his wife make out a *prima facie* case for the denial of his application. Where the Government has made out a *prima facie* case, the burden shifts to the applicant to show why granting the application would nonetheless be in the public interest. *See Gregory D. Owens,* 67 FR 50461, 50464 (2002). As this Agency has repeatedly held, a proceeding under section 303 “ `is a remedial measure, based upon the public interest and the necessity to protect the public from those individuals who have misused * * * their DEA Certificate of Registration, and who have not presented sufficient mitigating evidence to assure the Administrator that they can be entrusted with the responsibility carried by such a registration.' ” *Samuel S. Jackson,* 72 FR 23848, 23853
(2007)(quoting *Leo R. Miller,* 53 FR 21931, 21932 (1988)). In short, Respondent must prove by a preponderance of the evidence that he can be entrusted with the authority that a registration provides by demonstrating that he accepts responsibility for his misconduct and that the misconduct will not re-occur. While Respondent admitted in response to Show Cause Order that he violated Federal law by prescribing controlled substances to his wife, he has offered no evidence to establish that he will not engage in similar acts in the future. 3 Respondent has therefore failed to rebut the Government's *prima facie* showing that granting him a new registration “would be inconsistent with the public interest.” 21 U.S.C. 823(f). Accordingly, Respondent's application will be denied. 3 I acknowledge that the State has allowed Respondent to retain his dental license and placed him on probation. The consent order, however, merely recites that “[t]he Department alleges that Respondent engaged in improper medication prescribing practice,” and does not contain the specific allegations that were made against Respondent. Consent Order at 1. It is thus not even clear what evidence the State had obtained and, in any event, there are a number of reasons why the State may have decided to settle the case. I thus decline to defer to the State's decision. *See John Kennedy,* 71 FR 35708
(2006)(declining to defer to State board's restoration of medical license; a “state license is a necessary, but not [a] sufficient condition for [a DEA] registration”). Order Pursuant to the authority vested in me by 21 U.S.C. § 823(f), as well as 28 CFR 0.100(b) and 0.104, I order that the application of Jon K. Dively, D.D.S., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective January 30, 2008. Dated: December 13, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7-25347 Filed 12-28-07; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 05-24] The Lawsons, Inc., t/a The Medicine Shoppe Pharmacy; Denial of Application On March 4, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to The Lawsons, Inc., t/a The Medicine Shoppe Pharmacy (Respondent) of Cheverly, Maryland. The Show Cause Order proposed the denial of Respondent's application for a DEA Certificate of Registration as a pharmacy on various grounds. More specifically, the Show Cause Order alleged that in October 1999, the Prince George's County, Maryland, Police Department received information that Ms. Tina M. Hart-Lawson, Respondent's chief pharmacist, was filling fraudulent prescriptions. Show Cause Order at 1. The Show Cause Order further alleged that on multiple occasions between November 11, 1999, and February 9, 2000, two undercover officers had presented fraudulent prescriptions for Percocet, a schedule II controlled substance, and Vicodin, a schedule III controlled substance, to Ms. Lawson, who filled the prescriptions without first verifying them. *Id.* at 1-3. The Show Cause Order alleged that all of the prescriptions presented by the undercover officers “had indicia of fraud” and “were written in the name of a fictitious doctor and DEA registration,” and that Ms. Lawson did not report any of the fraudulent prescriptions to the police. *Id.* at 3. The Show Cause Order also alleged that on February 4, 2000, Ms. Lawson told one of the undercover officers that she knew that the prescriptions presented by the officer two days earlier were forged, but then proceeded to partially fill one of them anyway. *Id.* at 2. The Show Cause Order alleged that Ms. Lawson had told the undercover officer that a local police officer was present when the undercover officer presented the prescriptions and had asked Ms. Lawson about them. *Id.* at 2-3. Ms. Lawson allegedly told the undercover officer that because she did not want the latter “to get in trouble,” she told the local police officer that the undercover officer “was a cancer patient.” *Id.* at 3. Next, the Show Cause Order alleged that on February 9, 2000, the other undercover officer presented a fraudulent prescription for Percocet. *Id.* The Show Cause Order alleged that Ms. Lawson filled the prescription, and after being paid for it, told the undercover officer that she “knew the prescription was fraudulent,” but “would not call the police” because the undercover officer was “a sister.” *Id.* The Show Cause Order further alleged that Ms. Lawson was subsequently arrested, and on March 8, 2002, pled guilty to having unlawfully distributed oxycodone in violation of 21 U.S.C. 841(a)(1). *Id.* Finally, the Show Cause Order alleged that on September 13, 2003, Samuel L. Lawson, M.D., filed an application on behalf of Respondent for a new DEA registration. *Id.* The Show Cause Order alleged that in support of its application, Respondent had attached a signed statement of Ms. Lawson which contained several material falsehoods and omissions. *Id.* at 3-4. The Show Cause Order thus concluded by alleging that because Ms. Lawson “has a felony conviction and made false statements in the Medicine Shoppe's application, granting a DEA registration to [Respondent] would not be consistent with the public interest.” *Id.* at 4. Respondent, through its counsel, requested a hearing. The matter was assigned to Administrative Law Judge
(ALJ)Mary Ellen Bittner, who conducted a hearing in Arlington, Virginia, on April 18, 2006. At the hearing, both parties introduced documentary evidence and called witnesses to testify. Following the hearing, both parties submitted briefs containing proposed findings of fact, conclusions of law, and argument. On November 6, 2006, the ALJ issued her initial Opinion and Recommended Decision (ALJ 1). In this decision, the ALJ concluded that granting Respondent's application “would not be inconsistent with the public interest.” ALJ 1, at 19. The ALJ further noted, however, that Respondent did not currently hold a Maryland controlled dangerous substances license and therefore recommended the denial of its application. *Id.* at 20. The ALJ further stated that in the event Respondent obtained the state license before the record was submitted to my office, she would change her recommendation. *Id.* Thereafter, on November 27, 2006, the Government filed exceptions to the ALJ's decision. ALJ Supplemental Decision at 2 (hereinafter, ALJ Dec). The next day, Respondent moved for reconsideration on the ground that it had received a state controlled-substance license. *Id.* On January 10, 2007, the ALJ granted Respondent's motion, and on February 12, 2007, the ALJ issued her supplemental decision which recommended that Respondent's application be granted. The record was then transmitted to me for final agency action. Having considered the entire record, I hereby issue this Decision and Final Order. For reasons set forth below, I reject the ALJ's conclusion that “granting Respondent's application . . . would not be inconsistent with the public interest.” ALJ Dec. at 19. In so holding, I adopt the ALJ's finding “that Dr. Lawson made substantial misrepresentations in the letter she attached to Respondent's . . . application.” *Id.* I also note that the ALJ found credible Ms. Lawson's “acknowledgments at the hearing that she made mistakes . . . and her expressions of remorse for those mistakes.” *Id.* at 19-20. But as the ALJ also found, Ms. Lawson “provided no testimony as to why she” made several materially false statements in connection with the application. *Id.* at 19. Thus, even if Ms. Lawson has acknowledged her wrongdoing in filling fraudulent prescriptions, she entirely failed to address her later misconduct in submitting a false statement in connection with her application. Because I conclude that the falsifications cannot be attributed to mere carelessness or negligence, I conclude that Ms. Lawson (and Respondent) cannot be entrusted with a registration. I make the following findings. Findings Respondent, a franchise of The Medicine Shoppe International, Inc., is a retail pharmacy located in Cheverly, Maryland. GX 1, RX 14. Respondent is owned by Samuel Lawson, M.D., and Tina Hart-Lawson, Ph.D. and R.Ph., who are married to each other. ALJ at 2. Ms. Hart-Lawson began practicing as a pharmacist in 1981, Tr. 193, and was Respondent's Chief Pharmacist in the fall of 1999 when Ms. Lawson and the pharmacy first came to the attention of the Prince George's (P.G.) County Police Department when the latter received information that Ms. Lawson was knowingly filling fraudulent prescriptions. GX 14, at 1. During the initial phase of the investigation, a DEA Diversion Investigator
(DI)went to Respondent and retrieved the prescriptions that it had filled for a person that the P.G. County police had recently arrested. Tr. 19. During the visit, the DI noticed that when Respondent's customers dropped off their prescriptions, Ms. Lawson did not verify them with their physicians. *Id.* at 20. Thereafter, the DI suggested to the P.G. County Police that further investigation of Ms. Lawson and Respondent was warranted. *Id.* at 20-21. Accordingly, the investigators decided to create fictitious prescriptions using the name of Deleon E. Ambrozewicz, M.D., and a false DEA registration number. *Id.* at 21. The prescriptions also included a telephone number, which if called, would result in the caller hearing that the number was not available. *Id.* The investigators also decided to use two persons to fill out the prescriptions and to leave out essential information necessary to fill a prescription such as the date, the quantity to be dispensed, and the number of refills. *Id.* at 47. Between October 18, 1999, and February 9, 2000, two P.G. County detectives carried out a total of 10 undercover visits to Respondent during which they presented fraudulent prescriptions to Ms. Lawson. ALJ at 4. Using the undercover name of Amber Johnson, the first detective (hereinafter, Detective I) visited Respondent on October 18, November 11, November 16, December 1, and December 7, 1999, as well as on February 9, 2000. *Id.* Using the undercover name of Colleen Talliver, the second detective (hereinafter, Detective II) visited Respondent on January 7, January 12, February 2, and February 4, 2000. *Id.* On October 18, 1999, Detective I visited Respondent and presented to Ms. Lawson prescriptions for Percocet and Soma, 1 which were “issued” under the name of Dr. Ambrozewicz. Tr. 76, GX 15. Ms. Lawson called the telephone number on the prescription, determined that it was not a “good number,” and refused to fill the prescription. Tr. 75-76. 1 Soma (carisoprodol) is not a controlled drug. On November 11, 1999, Detective I returned to Respondent and presented to Ms. Lawson another fraudulent prescription for Percocet “issued” by Dr. Ambrozewicz. *Id.* at 78-80. According to the Detective, Ms. Lawson asked her only if she had insurance. *Id.* at 82-83. Ms. Lawson then filled the prescription. *Id.* at 81-82; *see also* GX 10, at 2-3. Five days later, Detective I returned to Respondent and presented to Ms. Lawson another fraudulent Percocet prescription “issued” by Dr. Ambrozewicz. Tr. 84; GX 11. On this occasion, Ms. Lawson asked the Detective whether she had been to the pharmacy before. Tr. 84. The Detective told Ms. Lawson that she had been there the week before to which Ms. Lawson responded: “Oh, you must be in pain.” *Id.* The Detective answered affirmatively and Ms. Lawson filled the prescription. *Id.* at 84-85; *see* GX 11, at 2. On December 1, 1999, Detective I returned to Respondent and presented to Ms. Lawson fraudulent prescriptions for both Percocet and Vicodin “issued” by Dr. Ambrozewicz. *Id.* at 86. According to the Detective, Ms. Lawson may have asked her whether she had been there before but did nothing to verify whether the prescriptions were valid. *Id.* at 86-87. Moreover, while these drugs are contraindicated, *id.* at 217, Ms. Lawson filled both prescriptions. *Id.* at 87-88; GX 7 & 8. Six days later, Detective I returned to Respondent and again presented to Ms. Lawson fraudulent prescriptions for Percocet and Vicodin “issued” by Dr. Ambrozewicz. Tr. 88-89. According to the Detective, Ms. Lawson asked only whether she had insurance and had been to the pharmacy before; the Detective affirmatively answered the latter question. *Id.* at 89. Ms. Lawson did nothing to verify the validity of the prescriptions and filled both of them. *Id.* at 89-90; *see also* GXs 5 & 6. Detective I did not return to Respondent until February 9, 2000, when she presented to Ms. Lawson another Percocet prescription “issued” by Dr. Ambrozewicz. GX 9; Tr. 90-91. On this occasion, Ms. Lawson told the Detective that she knew that the prescription was “fake,” because she had another customer who had used the same doctor's name and had determined that the “doctor did not exist.” GX 14, at 2. After telling the Detective that she would let it go this time because she had already filled the prescription, Tr. 91, Ms. Lawson placed her telephone on its speaker-phone function and dialed the phone number listed on the prescription. GX 14, at 2-3. Ms. Lawson then stated: “I will let you go this time, and I'm not going to call the police because you're a sister.” *Id.* at 3; Tr. at 91. The Detective paid cash for the Percocet and left Respondent. Tr. at 91. On January 7, 2000, Detective II visited Respondent and presented to Ms. Lawson a fraudulent Soma prescription “issued” by Dr. Ambrozewicz. *Id.* at 26. The prescription did not include the quantity, *id.* ; Ms. Lawson proceeded to ask the Detective if thirty tablets “would be enough?” *Id.* at 27. After the Detective told Ms. Lawson that thirty tablets “would be fine,” Ms. Lawson filled the prescription. *Id.* at 27. On January 12, 2000, Detective II returned to Respondent and presented to Ms. Lawson a fraudulent prescription for Percocet. *Id.* at 28. The prescription, which was “issued” by Dr. Ambrozewicz, was undated and left blank the number of refills. GX 12. According to the Detective, who remained present upon tendering the prescription, Ms. Lawson filled the prescription without verifying it. Tr. 30-31; GX 12, at 2-3. 2 2 On April 3, 2000, the police executed a search warrant at Respondent and seized the various prescriptions. This prescription bore the handwaritten notation “fraudulent.” GX 12, at 1. According to the Detective, the notation was not on the prescription when she tendered it to Ms. Lawson. TR. 29. On February 2, 2000, Detective II returned to Respondent and presented to Ms. Lawson fraudulent prescriptions for Vicodin and Percocet. Tr. 32. The Vicodin prescription, which was “issued” by Dr. Ambrozewicz, was again undated and left blank the number of refills. 3 GX 13, at 1. Ms. Lawson informed Detective II that because of a bad snowstorm two days earlier, a shipment had not come in, and therefore, she was unable to fill the Percocet prescription and could only fill half of the Vicodin prescription. Tr. 32. Ms. Lawson then dispensed tablets of generic Vicodin to the Detective. GX 13, at 2-3. 3 The record does not include a copy of the Percocet prescription which Detective II presented to Ms. Lawson. The Vicodin prescription bears the notations “forged” and “Called 911.” GX 13. It also included information describing the Detective's physical appearance and automobile. *See id.* at 2. Ms. Lawson did not, however, testify regarding this information. ALJ at 8. On February 4, 2000, the Detective returned to Respondent in an attempt to obtain the remaining half of the Vicodin prescription and the Percocet prescription which had not been filled. Tr. 36. Ms. Lawson pulled the Detective aside and told her that she knew the prescriptions were fraudulent, and that Dr. Ambrozewicz did not exist. *Id.* at 36-37. Ms. Lawson also told the Detective that during her previous visit, a local police officer was in the store. *Id.* at 37. Ms. Lawson told the Detective that “she did not say anything in front of the police officer” because she did not want the Detective to get in “trouble.” GX 14, at 2; *see also* Tr. 37. Ms. Lawson then told the Detective that she had only given her half the Vicodin prescription because she wanted the Detective to leave. Tr. 37. Ms. Lawson also told the Detective that she knew the latter needed help and hoped she would get it. *Id.* Thereafter, the United States Attorney indicted Ms. Lawson. Tr. 122. Ms. Lawson pled guilty, and, on April 29, 2002, the United States District Court convicted her of the unlawful distribution of oxycodone on February 9, 2000, in violation of 21 U.S.C. 841(a)(1). GX 3. Ms. Lawson was sentenced to five months imprisonment and three years of supervised release, which also included a five-month term of home detention. GX 3, at 2-4. Prior to entering her plea, Ms. Lawson met with P.G. County Detectives and submitted to an interview. Tr. 56. Moreover, at some point not specified in the record, Respondent surrendered its DEA registration. Tr. 134. On September 13, 2003, Respondent submitted an application for a new registration which was completed by Respondent's husband. GX 1. On the application, Respondent answered “yes” to the question whether it had “ever surrendered or had a federal controlled substance registration revoked * * * or denied?” GX 1, at 1. Respondent also answered “yes” to the question which asks a non-publicly traded corporate entity whether “any officer, partner, stockholder, or proprietor [has] been convicted of a crime in connection with controlled substances under state or federal law?” *Id.* In explaining its answer to the latter question, Respondent referred to the attached statement of Ms. Lawson regarding the events surrounding her conviction. GX 1, at 2. In this statement, Ms. Lawson wrote: Approximately 3 years ago (March 2000), a female patient exhibiting excruciating pain, came to the pharmacy with a prescription for a scheduled drug (percocet). Inspite
(sic)of the fact that this patient was extremely conniving, I followed my usual professional protocol of verifying and authenticating the said prescription. My finding lead me to believe that, this was a fraudulent prescription. My professional judgment at the time on a very busy day, was to inform the police of this occurrence. However, in order to substantiate my finding, I decided to partial
(sic)fill so that the police will apprehend the patient with the item in hand. For the past 20 years as a licensed pharmacist, I have turned away several such prescriptions. On this busy day in question, I was trying to perform my civic duty by involving the police. No sooner had I made this professional judgement (sic), than I was later informed that this was a set up by an agent. Upon further investigation, it was concluded that I had performed my duties in the past with distinction and without prior criminal record, but the professional judgment made by me on this day in question was in error and uncharacteristic. *Id.* at 3. Upon receipt of Respondent's application, DEA commenced this investigation. Based on Ms. Lawson's guilty plea, on March 25, 2005, the Maryland Board of Pharmacy charged Ms. Lawson with violating Md. Health Occ. Code Ann. § 12-313, a provision which authorizes the Board to discipline a licensee upon a conviction or guilty plea “to a felony or to a crime involving moral turpitude.” RX 16, at 1. On the same day, the Board also charged Respondent with a violation of Maryland law based on Ms. Lawson's criminal conduct. *See* GX 17. On August 1, 2005, “over the objection of the [State's] prosecutor,” GX 16 at 2, the Board and Ms. Lawson agreed to a settlement under which her license was “suspended for three years, with all three years immediately [s]tayed.” *Id.* at 3. The Board also placed Ms. Lawson on “probation for a minimum of three years,” and ordered her to complete an ethics course. *Id.* at 4. Relatedly, the Board also suspended Respondent's pharmacy permit for three years with all three years stayed and imposed a fine of $2,500. *See* GX 17, at 4. Both Mr. and Mrs. Lawson testified at the hearing. Mr. Lawson testified that he and his wife “met on several occasions with the agents that * * * testified” in the proceeding, and that during these meetings, he “was able to find out a lot of things that had happened in terms of all the different incidents.” Tr. 156. Mr. Lawson further testified that the various investigations had concluded that Ms. Lawson had received “negligible” financial gain from her misconduct. *Id.* at 157. Mr. Lawson stated that when the Lawsons went before the Maryland Board “the incidents that had been put forward by DEA and also by the prosecuting attorney during the first adjudication process, all that information was relayed * * * to them.” *Id.* at 162. Mr. Lawson also testified that to his knowledge, his wife had not received any further complaints regarding her dispensing of controlled substances. *Id.* at 172-73. Mr. Lawson testified that a DEA diversion investigator was aware that his wife had pled guilty to the criminal charge. *Id.* at 174. Mr. Lawson also testified that another diversion investigator had “objected” to the answers that Respondent had provided to the liability questions (in section 4) of the application because they did not reflect his wife's conviction; the DI then sent him a new application and instructed him to “fill [it] out correctly.” *Id.* at 178; *see also id.* at 188-89. Mr. Lawson testified that he did so, *id.* 179 & 189, and that the information in his wife's statement: was constructed by me after listening to [her] years later as to what may have happened when the particular application that she pled guilty to, that one count, what had transpired in my absence based, on her best recollection. * * * I put those words together, not to mean those were the exact things that this agent might have purported before Tina. It was based on her physical appearance and whatever other demeanors that she may have had on that particular day. *Id.* at 179. Mr. Lawson testified that his wife had taken continuing education courses and completed the ethics course mandated by the Maryland Board. *Id.* at 183. Mr. Lawson further testified that since the events that led to her conviction, his wife “has been extremely cautious and she does her best to follow all the regulations.” *Id.* Ms. Lawson testified that in the past, she “used to take [her customer's] word,” but that since her arrest, she had become “more careful” and “more suspicious of anybody that comes into the pharmacy.” *Id.* at 195. Ms. Lawson further stated that while taking the required ethics course, she recognized that she had not been “dealing with [her customers] on a professional basis” because she would talk to them about “their private life and everything,” but now she keeps her interactions “short and simple” and only “deal[s] with them professionally.” *Id.* at 197. Ms. Lawson testified that even when she fills pain medications which are not controlled substances, she now verifies the prescription with the prescribing physician. *Id.* at 198. Ms. Lawson added that she also takes more time to fill the prescription and tells her customers that “if they cannot wait, they can go to another pharmacy.” *Id.* Ms. Lawson further testified that she had attended a number of continuing education courses. *Id.* at 200-01. Finally, Ms. Lawson testified that she “should have done things differently and * * * I made a big error,” and wanted a second chance “to show [DEA] that I'm a changed person.” *Id.* at 201. Ms. Lawson offered no testimony, however, regarding the statement she signed and submitted in support of Respondent's application. *See generally id.* 191-203. Moreover, when asked by her counsel whether there was “anything else” she wanted the ALJ to know as to why it would be “in the public interest to” grant the application, Ms. Lawson answered: “I can't think of anything right now.” *Id.* at 203. 4 4 Ms. Lawson also produced several letters of recommendation including one from her probation officer. *See* RX 5. On cross-examination, Ms. Lawson testified that she did not recall the Detective who presented the prescription which led to her indictment having ever been in her store. *Id.* at 211. She also testified that she did not recall the other Detective having been in her store until meeting the Detective during a de-briefing after her arrest. *Id.* Ms. Lawson further testified that she did not remember to which Detective she had given the partial prescription, that it had “been a very long time [since] all these things happened,” and that she had only a “vague recollection of any of these prescriptions being presented to me.” *Id.* at 212. Moreover, when asked whether she knew on December 7, 1999, whether “DeLeon Ambrozewicz was a legitimate doctor?,” Ms. Lawson answered: “I really don't remember. It's been a long time.” *Id.* at 215. Ms. Lawson admitted that Percocet and Vicodin are contraindicated, but then testified that she did not remember whether she had advised Detective II of this fact when she dispensed both drugs to her on December 1, 1999. *Id.* at 216-17. Ms. Lawson also could not explain why her pharmacy's computer-generated prescription printout indicated that one refill was authorized for the February 2, 2000 Vicodin prescription issued to Det. II when the initial script had left this blank. *Id.* at 218; *see also* GX 13 at 1-2. Ms. Lawson testified that she “should have * * * checked” the prescription and “done things differently.” Tr. 218. Ms. Lawson further maintained that “[i]n those days, it used to be very busy at the pharmacy” and that she “did not have any help,” but that she now “double-checks” prescriptions, “scrutinizes anything that leaves the pharmacy,” and doesn't “rush.” *Id.* at 219. Discussion Section 303(f) of the Controlled Substances Act provides that an application for a practitioner's registration may be denied upon a determination “that the issuance of such registration would be inconsistent with the public interest.” 21 U.S.C. 823(f). In making the public interest determination, the CSA requires the consideration of the following factors:
(1)The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2)The applicant's experience in dispensing * * * controlled substances.
(3)The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4)Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5)Such other conduct which may threaten the public health and safety. *Id.* “These factors are * * * considered in the disjunctive.” *Robert A. Leslie, M.D.,* 68 FR 15227, 15230 (2003). I “may rely on any one or a combination of factors, and may give each factor the weight [I] deem[] appropriate in determining whether * * * an application for registration [should be] denied.” *Id.* Moreover, I am “not required to make findings as to all of the factors.” *Hoxie* v. *DEA,* 419 F.3d 477, 482 (6th Cir. 2005). Furthermore, under Section 304(a)(1), a registration may be revoked or suspended “upon a finding that the registrant * * * has materially falsified any application filed pursuant to or required by this subchapter.” 21 U.S.C. 824(a)(1). Under agency precedent, the various grounds for revocation or suspension of an existing registration that Congress enumerated in section 304(a), 21 U.S.C. § 824(a), are also properly considered in deciding whether to grant or deny an application under section 303. *See Anthony D. Funches,* 64 FR 14267, 14268 (1999); *Alan R. Schankman,* 63 FR 45260 (1998); *Kuen H. Chen,* 58 FR 65401, 65402 (1993). Thus, the allegation that Respondent materially falsified its application is properly considered in this proceeding. *See Samuel S. Jackson,* 72 FR 23848, 23852 (2007). In this case, I agree with the ALJ that Respondent and Ms. Lawson materially falsified its application for registration. ALJ Dec. at 19. While noting that Ms. Lawson “provided no testimony as to why she” made these “significant misrepresentations,” the ALJ apparently treated the material falsification as just “other conduct” to be considered under Factor Five of the public interest analysis and recommended that the application be granted. *Id.* at 19-20. The ALJ's approach gave insufficient weight to Ms. Lawson's separate act of misconduct in making several false statements in connection with Respondent's application. Just as materially falsifying an application provides a basis for revoking an existing registration without proof of any other misconduct, *see* 21 U.S.C. § 824(a)(1), it also provides an independent and adequate ground for denying an application. *Cf. Bobby Watts, M.D.,* 58 FR 46995 (1993). Ms. Lawson's statement was offered as an explanation of the events which surrounded her dispensing of Percocet to Detective I on February 9, 2000. With respect to that statement, the ALJ concluded that Dr. Lawson made several “false statements in the letter.” ALJ at 19. In particular, Ms. Lawson attempted to portray herself as the victim of deception stating that she filled the prescription in part because the Detective was “extremely conniving” and exhibited “excruciating pain.” GX 1, at 3. The Detective—whom the ALJ found credible (ALJ at 19)—testified, however, that Ms. Lawson told her that she knew that Dr. Ambrozewicz “was a fictitious doctor,” Tr. 91, but would “let this one go because she had already filled the prescription” and “was looking out for her.” *Id.* Moreover, while Ms. Lawson represented that it was “very busy” when she filled the prescription, GX 1, at 3; DI Valentine testified that both Detectives told her that “each time they went in there, it was not busy.” Tr. 114. Indeed, Ms. Lawson's statement to the Detective that she knew the prescription was fraudulent but filled it because she was looking out for her, implicated her in the criminal act of unlawful distribution of a controlled substance. *See* 21 U.S.C. 841(a). This is not the type of conversation that one would expect to occur in a “very busy” pharmacy. The evidence thus establishes that Ms. Lawson was neither duped into filling the prescription nor harried by the demands of a “very busy” work environment. I thus find that her representations that the Detective was “conniving” by exhibiting “excruciating pain” and that the pharmacy was “very busy” were false. Ms. Lawson further asserted that her “professional judgment at the time * * * was to inform the police of this occurrence,” and that “to substantiate [her] finding” that the prescription was fraudulent, she “decided to partial[ly] fill [the prescription] so that the police will apprehend the patient with the item in hand.” GX 1, at 3. As the ALJ found, there is no evidence that Ms. Lawson contacted the police on the date in question, February 9, 2000. 5 Indeed, as recounted in the police report, Ms. Lawson put her telephone on its speaker function so that the Detective could hear, dialed the number for Dr. Ambrozewicz (to show that she knew that there was no such doctor) and stated: “see, I will let you go this time, and I'm not going to call the police because you're a sister.” GX 14, at 3. I thus find that Ms. Lawson's representations that it was her judgment “to inform the police” and that she filled the prescription “so that the police [would] apprehend the patient with the item in hand” were both false. 5 In discussing this part of Ms. Lawson's statement, the ALJ also noted that “Detective Muldoon testified to Dr. Lawson's statement that she partially filled the prescription so that Detective Muldoon would not get in trouble with the police.” ALJ at 19. Detective Muldoon's statement was, however, in reference to the February 2 and 4, 2000 undercover visits, and not to Ms. Lawson's criminal conduct on February 9, 2000. Ms. Lawson was indicted for, and convicted of, only her conduct on February 9, 2000; her written statement was offered only in explanation of the events pertaining to her conviction. Detective Muldoon's statements are therefore not probative of the events occurring on this date. Accordingly, I reject the ALJ's reasoning to the extent it relied on the statement to Detective Muldoon in finding that Ms. Lawson's statement was false. Having found that these various statements were false does not, however, close the inquiry because it must also be determined whether they were material. “The most common formulation” of the concept of materiality “is that a concealment or misrepresentation is material if it `has a natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body to which it was addressed.” *Kungys* v. *United States* , 485 U.S. 759, 770
(1988)(quoting *Weinstock* v. *United States* , 231 F.2d 699, 701 (D.C. Cir. 1956)) (other citation omitted); *see also* *United States* v. *Wells* , 519 U.S. 482, 489
(1997)(quoting *Kungys* , 485 U.S. at 770). The evidence must be “clear, unequivocal, and convincing.” *Kungys* , 485 U.S. at 772. However, “the ultimate finding of materiality turns on an interpretation of substantive law.” *Id.* at 772 (int. quotations and other citation omitted). DEA has previously held that “[t]he provision of truthful information on applications is absolutely essential to effectuating [the] statutory purpose” of determining whether the granting of an application is consistent with the public interest. *See Peter H. Ahles* , 71 FR 50097, 50098 (2006). As the Sixth Circuit recently observed: “Candor during DEA investigations * * * is considered by the DEA to be an important factor when assessing whether a * * * registration is consistent with the public interest.” *Hoxie* v. *DEA* , 419 F.3d 477, 483 (6th Cir. 2005). An applicant's answers to the various liability questions are material because this Agency “relies upon such answers to determine whether an investigation is needed prior to granting the application.” *Martha Hernandez, M.D.* , 62 FR 61145, 61146 (1997). The explanation given by an applicant who has affirmatively answered a liability question is likewise material because the public interest inquiry under section 303(f) requires, *inter alia* , that the Agency examine “[t]he applicant's experience in dispensing * * * controlled substances,” its “conviction record * * * relating to the * * * dispensing of controlled substances,” and its “[c]ompliance with applicable State, Federal, or local laws relating to controlled substances.” 21 U.S.C. § 823(f). Moreover, even where, as here, an applicant (or its related person) has been convicted of a controlled-substance related offense, that conviction does not impose a *per se* bar to the granting of a new registration. *See* , *e.g.* , *Scott H. Nearing* , *D.D.S.* , 70 FR 33200 (2005). Rather, in evaluating such applications, the Agency looks at several factors including the egregiousness of the applicant's criminal conduct, its mitigating evidence, and whether the applicant has accepted responsibility for its prior criminal conduct. *See id.* ; *see also Jackson* , 72 FR at 23853. While Ms. Lawson's misrepresentations were somewhat inconsistent in that they depicted her as a victim of a “conniving” customer and the circumstance of a “very busy” store, while then claiming that she filled the prescription so that police could apprehend the customer with the drugs in hand, I conclude that the statements were made to present her criminal conduct as less serious than it actually was. The statements were material because they had “a natural tendency to influence,” or were “capable of influencing” the Agency's evaluation of several of the public interest factors and the ultimate decision as to whether the Agency should grant Respondent's application. 6 *Kungys* , 485 U.S. at 770 (internal quotations and other citations omitted). 6 My decision in *Jackson* is not to the contrary. In *Jackson* , I found that the respondent provided a factually accurate disclosure of his conviction; this act thus rendered immaterial the respondent's “no” answer to question of whether he had been convicted of a controlled substance offense. 72 FR at 23852-53. Similarly, respondent's statement that he had voluntarily surrendered his registration when it had actually been revoked was not consequential in light of fact that no regulation defines the difference between the terms and the respondent had provided an accurate disclosure of the conduct that led to the loss of his registration. *Id.* In addition, I also adopted the ALJ's finding that the respondent had not intentionally falsified his application. *Id.* at 23852. That the Agency did not rely on Ms. Lawson's false statements and grant Respondent's application does not make the statements immaterial. As the First Circuit has noted with respect to the material falsification requirement under 18 U.S.C. § 1001, “[i]t makes no difference that a specific falsification did not exert influence so long as it had the *capacity* to do so.” *United States* v. *Alemany Rivera* , 781 F.2d 229, 234 (1st Cir. 1985). *See also United States* v. *Norris* , 749 F.2d 1116, 1121 (4th Cir. 1984) (“There is no requirement that the false statement influence or effect the decision making process of a department of the United States Government.”). 7 7 The fact that a DEA Diversion Investigator from a local field office may have been present when Ms. Lawson entered her plea, Tr. 174, also does not render her representations immaterial. As the ALJ found, Respondent's application was submitted to a different section of the Agency, ALJ at 11, where it was initially reviewed. I further conclude that Ms. Lawson's material falsifications cannot be attributed to mere negligence or carelessness, and that she either “knew or should have known” that the statements were false. *Dan E. Hale, D.O.* , 69 FR 69402, 69406 (2004); *The Drugstore* , 61 FR 5031, 5032 (1996). The circumstances surrounding the February 9, 2000 visit, in which Ms. Lawson indicated that she knew the prescription was fraudulent and proceeded to dial the phone number of Dr. Ambrozewicz to demonstrate to the Detective that she knew that the doctor did not exist, are sufficiently different from the typical filling of a prescription that one should accurately recall them. Furthermore, the experience of being indicted and pleading guilty in a federal district court to the unlawful distribution of Percocet on the above date are of such significance that one should have a fairly accurate recollection of the underlying circumstances. Moreover, only three and a half years had elapsed between her criminal conduct in filling the fraudulent prescription and her submission of the statement. Significantly, Respondent provided the statement to DEA after the rejection of an earlier application. I further note that Ms. Lawson did not testify regarding the circumstances surrounding the preparation of the statement. Ms. Lawson's failure to testify on the issue supports an adverse inference that she knew the statements were false. *See Wiliam M. Knarr* , 51 FR 2772, 2773 (1986). *Cf. Baxter* v. *Palmigiano* , 425 U.S. 308, 319 (1976). Both the circumstantial evidence and Ms. Lawson's silence thus support the conclusion that she knowingly made false statements in an attempt to obtain a favorable decision from the Agency on Respondent's application. I recognize that the ALJ found that Ms. Lawson credibly acknowledged “that she made mistakes” and expressed “remorse for those mistakes.” ALJ Dec. at 19-20. But because Ms. Lawson did not address the issues surrounding the material falsification of her statement, the ALJ's findings are relevant only with respect to the issues related to Respondent's dispensing's of controlled substances to the two Detectives. Because Ms. Lawson failed to offer any explanation as to why she submitted her statement, I further conclude that she has not accepted responsibility and expressed remorse for the separate act of misconduct that she committed in submitting her written statement. Her failure to do so precludes a finding that granting Respondent a new registration would be consistent with the public interest. Order Pursuant to the authority vested in me by 21 U.S.C. § 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that the application of The Lawsons, Inc., t/a The Medicine Shoppe Pharmacy, for a DEA Certification of Registration as a pharmacy, be, and it hereby is, denied. This order is effective January 30, 2008. Dated: December 13, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7-25346 Filed 12-28-07; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF LABOR Office of the Secretary Submission for OMB Review: Comment Request December 17, 2007. The Department of Labor
(DOL)hereby announces the submission the following public information collection requests
(ICR)to the Office of Management and Budget
(OMB)for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at *http://www.reginfo.gov/public/do/PRAMain* or by contacting Darrin King on 202-693-4129 (this is not a toll-free number)/e-mail: *king.darrin@dol.gov* . Comments should be sent to the Office of Information and Regulatory Affairs, Attn: Carolyn Lovett, OMB Desk Officer for the Employment Standards Administration (ESA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-7316/Fax: 202-395-6974 (these are not a toll-free numbers), E-mail: *OIRA_submission@omb.eop.gov* within 30 days from the date of this publication in the **Federal Register** . In order to ensure the appropriate consideration, comments should reference the OMB Control Number (see below). The OMB is particularly interested in comments which: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. *Agency:* Employment Standards Administration. *Type of Review:* Extension without change of currently approved collection. *Title of Collection:* Request for Information on Earnings, Dual Benefits, Dependents and Third Part Settlements. *OMB Control Number:* 1215-0151. *Agency Form Number:* CA-1032. *Estimated Number of Annual Respondents:* 50,000. *Estimated Total Annual Burden Hours:* 16,667. *Total Estimated Annual Cost Burden:* $22,000. *Affected Public:* Individuals or households. *Description:* In accordance with 20 CFR 10.528, DOL periodically requires each employee who is receiving compensation benefits to complete an affidavit as to any work, or activity indicating an ability to work, which the employee has performed for the prior 15 months. If an employee who is required to file such a report fails to do so within 30 days of the date of the request, his or her right to compensation for wage loss under 5 U.S.C. 8105 or 8106 is suspended until DOL receives the requested report. The information collected through the Form CA-1032 is used to ensure that compensation being paid is correct. Without this information, claimants might receive compensation to which they were not entitled, resulting in an overpayment of compensation. For additional information, see related notice published on August 29, 2007 at 72 FR 49737. *Agency:* Employment Standards Administration. *Type of Review:* Extension without change of currently approved collection. *Title of Collection:* Worker Information—Terms and Conditions of Employment. *OMB Control Number:* 1215-0187. *Agency Form Numbers:* WH-516 and WH-516-Espanol. *Estimated Number of Annual Respondents:* 129,250. *Estimated Total Annual Burden Hours:* 77,550. *Total Estimated Annual Cost Burden:* $93,060. *Affected Public:* Private Sector: Farms. *Description:* Various sections of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1801 et seq., require respondents [i.e., Farm Labor Contractors (FLCs), Agricultural Employers (AGERs), and Agricultural Associations (AGASs)] to disclose employment terms and conditions in writing to:
(1)Migrant agricultural workers at the time of recruitment [MSPA section 201(a)];
(2)seasonal agricultural workers, upon request, at the time an offer of employment is made [MSPA section 301(a)(1)]; and
(3)seasonal agricultural workers employed through a day-haul operation at the place of recruitment [MSPA section 301(a)(2)]. See 29 CFR 500.75-.76. Moreover, MSPA sections 201(b) and 301(b) require respondents to provide each migrant worker, upon request, with a written statement of the terms and conditions of employment. See 29 CFR 500.75(d). MSPA sections 201(g) and 301(f) require providing such information in English or, as necessary and reasonable, in a language common to the workers and that the U.S. Department of Labor
(DOL)make forms available to provide such information. The DOL prints and makes Optional Form WH-516, Worker Information—Terms and Conditions of Employment, available for these purposes. See 29 CFR 500.75(a), 500.76(a). MSPA sections 201(a)(8) and 301(a)(1)(H) require disclosure of certain information regarding whether State workers' compensation or state unemployment insurance is provided to each migrant or seasonal agricultural worker. See 29 CFR 500.75(b)(6). For example, if State workers' compensation is provided, the respondents must disclose the name of the State workers' compensation insurance carrier, the name of the policyholder of such insurance, the name and the telephone number of each person who must be notified of an injury or death, and the time period within which this notice must be given. See 29 CFR 500.75(b)(6)(i). Respondents may also meet this disclosure requirement, by providing the worker with a photocopy of any notice regarding workers' compensation insurance required by law of the state in which such worker is employed. See 29 CFR 500.75(b)(6)(ii). The Form WH-516 is an optional form that allows respondents to disclose employment terms and conditions in writing to migrant and seasonal agricultural workers, as required by the MSPA. Respondents may either complete the optional form and use it to make the required disclosures to workers or use the form as a written reflection of the information workers may request from employers under the MSPA. Disclosure of the information on this form is beneficial to both parties in that it enables workers to understand their employment terms and conditions, while also providing respondents with an easy way to disclose the information required by the MSPA and its regulations. For additional information, see related notice published on September 12, 2007 at 72 FR 52166. Darrin A. King, Acting Departmental Clearance Officer. [FR Doc. E7-25371 Filed 12-28-07; 8:45 am] BILLING CODE 4510-27-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-59,517] Advanced Electronics, Inc., Boston, MA; Notice of Negative Determination on Remand On October 22, 2007, the U.S. Court of International Trade (USCIT) granted the Department of Labor's request for voluntary remand to conduct further investigation in *Former Employees of Advanced Electronics, Inc.* v. *United States Secretary of Labor* (Court No. 06-00337). On July 18, 2006, the Department of Labor (Department) issued a Negative Determination regarding eligibility to apply for Trade Adjustment Assistance
(TAA)and Alternative Trade Adjustment Assistance
(ATAA)applicable to workers and former workers of Advanced Electronics, Inc., Boston, Massachusetts (subject firm). AR 60. The Department's Notice of determination was published in the **Federal Register** on August 4, 2006 (71 FR 44320). AR 67. The petition identified the article produced by the subject workers as “electronics.” AR 2. A letter (dated May 8, 2006) identified the subject workers as engaged in the production of “subassembly' printed circuit boards” and alleged that increased imports of that article caused the subject workers' separations. AR 28. The negative determination stated that the subject workers “were engaged in the production of printed circuit boards (subassembly)” and that the Department's investigation revealed that “the subject firm did not import printed circuit boards” and did not transfer production abroad during the relevant period. The Department's survey of the subject firm's major declining customers regarding their purchases in 2004, 2005, January through May 2005, and January through May 2006 of “printed circuit board (assembly)” revealed no imports during the period under investigation, and that a portion of the decline in company sales is attributed to declining purchases from a foreign customer during the period under investigation. AR 61. Administrative reconsideration was not requested by any of the parties pursuant to 29 CFR section 90.18. The Department requested voluntary remand to determine whether, during the relevant period, any of the foreign customer's facilities located in the United States received printed circuit boards produced by the subject firm and, if so, whether the facility(s) had imported articles like or directly competitive with the printed circuit board assemblies produced by the subject firm. During the remand investigation, the Department contacted the former subject firm official who completed the Business Confidential Data Request form, SAR 1-5, and the former subject firm employee who handled the foreign customer's contract for information about where the articles were shipped. SAR 7. The Department confirmed that the subject firm sent the articles purchased by the foreign customer to a facility located outside of the United States and obtained the foreign address to where the articles were shipped. SAR 3, 5, 7. Because the subject firm did not send printed circuit boards to a domestic facility of the foreign customer, the Department determines that the foreign customer did not import articles like or directly competitive with the printed circuit boards produced by the subject firm, and affirms the negative determination. In order for the Department to issue a certification of eligibility to apply for ATAA, the subject worker group must be certified eligible to apply for TAA. Since the subject workers are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA. Conclusion After careful reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of Advanced Electronics, Inc., Boston, Massachusetts. Signed at Washington, DC, this 19th day of December, 2007. Elliott S. Kushner, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E7-25362 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,364; TA-W-62,364A] Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts; Including an Employee of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts, Located in Cumberland Furnace, Tennessee; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance and Negative Determination Regarding Eligibility to Apply for Alternative Trade Adjustment Assistance In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and a Negative Determination Regarding Eligibility to Apply for Alternative Trade Adjustment Assistance on November 14, 2007, applicable to workers of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts. The notice was published in the **Federal Register** on December 10, 2007 (72 FR 69710). At the request of a company official, the Department reviewed the certification for workers of the subject firm. New information shows that worker separation has occurred involving an employee of the Bedford, Massachusetts facility of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., working out of Cumberland Furnace, Tennessee. Mr. Edward C. Butcher performed support duties for the firm's Bedford, Massachusetts, software development, testing, and monitoring. Based on these findings, the Department is amending this certification to include an employee of the Bedford, Massachusetts facility of Cellular Express, Inc., d/b/a Boston Communications Group, Inc. working out of Cumberland Furnace, Tennessee. The intent of the Department's certification is to include all workers of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts, who were adversely affected by increased imports following a shift in production to India. The amended notice applicable to TA-W-62,364 is hereby issued as follows: “All workers of Cellular Express, Inc., d/b/a Boston Communications Group, Inc. Bedford, Massachusetts (TA-W-62,364), including an employee of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts located in Cumberland Furnace, Tennessee (TA-W-62,364A), who became totally or partially separated from employment on or after October 25, 2006, through November 14, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.” I further determine that workers of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts (TA-W-62,364), including an employee of Cellular Express, Inc., d/b/a Boston Communications Group, Inc., Bedford, Massachusetts, located in Cumberland Furnace, Tennessee (TA-W-62,364A), are denied eligibility to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974. Signed at Washington, DC, this 20th day of December 2007. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E7-25358 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,310] Healthcare Management Partners, LLC, Santa Ana, CA; Notice of Negative Determination Regarding Application for Reconsideration By application postmarked November 20, 2007, the petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on October 23, 2007 and published in the **Federal Register** on November 6, 2007 (72 FR 62682). Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1)If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2)if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3)if in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision. The negative TAA determination issued by the Department for workers of Healthcare Management Partners, LLC, Santa Ana, California, was based on the finding that the worker group does not produce an article within the meaning of Section 222 of the Trade Act of 1974. The investigation revealed that workers of the subject firm are engaged in medical billing and medical practice management. The investigation further revealed that no production of article(s) occurred within the firm or appropriate subdivision within the Healthcare Management Partners, LLC during the relevant time period. The petitioner contends that the Department erred in its interpretation of the work performed by the workers of the subject firm. The petitioner states that the workers of the subject firm “produced medical coding, appeals on claims, resubmitted claims, bills, medical records and other documents for patients, insurance companies, or other third parties.” The petitioner alleges that because the work was done in a “production environment in which workers submitted weekly reports” and because the written documents and codes should be considered “intangible products”, workers of the subject firm should be considered as engaged in production of articles. The investigation revealed that Healthcare Management Partners, LLC, Santa Ana, California, provide medical billing and practice management services to physicians and medical professional practices and the workers were engaged in data processing, payment posting, following up on accounts receivable for the company's medical billing clients. These functions, as described above, are not considered production of an article within the meaning of Section 222 of the Trade Act. Claims, medical records, bills and other correspondence are documents used by the subject firm as incidental to services provided by the subject firm. No production took place at the subject facility nor did the workers support production of an article for at any domestic affiliated location during the relevant period. The petitioner also alleges that job functions have been shifted from the subject firm to overseas contractors. The allegation of a shift to another country might be relevant if it was determined that workers of the subject firm produced an article. However, the investigation determined that workers of Healthcare Management Partners, LLC, Santa Ana, California, do not produce an article within the meaning of Section 222 of the Trade Act of 1974. Conclusion After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied. Signed in Washington, DC, this 18th day of December, 2007. Elliott S. Kushner, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E7-25365 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance In accordance with section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance
(ATAA)by (TA-W) number issued during the period of *December 10 through December 14, 2007* . In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of section 222(a) of the Act must be met. I. Section (a)(2)(A) all of the following must be satisfied: A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated; B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or II. Section (a)(2)(B) both of the following must be satisfied: A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated; B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and C. One of the following must be satisfied: 1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States; 2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or 3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision. Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of section 222(b) of the Act must be met.
(1)Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2)The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3)Either—
(A)The workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph
(2)accounted for at least 20 percent of the production or sales of the workers' firm; or
(B)A loss or business by the workers' firm with the firm (or subdivision) described in paragraph
(2)contributed importantly to the workers' separation or threat of separation. In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance
(ATAA)for older workers, the group eligibility requirements of section 246(a)(3)(A)(ii) of the Trade Act must be met. 1. Whether a significant number of workers in the workers' firm are 50 years of age or older. 2. Whether the workers in the workers' firm possess skills that are not easily transferable. 3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse). Affirmative Determinations for Worker Adjustment Assistance The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination. The following certifications have been issued. The requirements of section 222(a)(2)(A) (increased imports) of the Trade Act have been met. *TA-W-62,465; Hyper Knits Sales, Inc., A Subsidiary of Safer Holding Group, New York, NY: November 13, 2006.* *TA-W-62,084; Weldsource Alliance, Inc., Oskkosh, WI: August 31, 2006.* *TA-W-61,934; Maxtex Fibre Recycling, Inc.; Eden Plant, Eden, NY: August 2, 2006.* The following certifications have been issued. The requirements of section 222(a)(2)(B) (shift in production) of the Trade Act have been met. *TA-W-62,431; Bierner Hat Company; Div. of F&M Hat Company, Dallas, TX: August 18, 2007.* The following certifications have been issued. The requirements of section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met. *None.* The following certifications have been issued. The requirements of section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met. *None.* Affirmative Determinations for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination. The following certifications have been issued. The requirements of section 222(a)(2)(A) (increased imports) and section 246(a)(3)(A)(ii) of the Trade Act have been met. *TA-W-62,465A; Hyper Knits Sales, Inc.; A Subsidiary of Safer Holding Group, Commerce, CA: November 13, 2006.* *TA-W-62,475; Derma Sciences; Formerly Nutramax, First Aid Division, Houston, TX: November 14, 2006.* *TA-W-62,546; Remy Reman LLC; Raleigh, MS: December 6, 2006.* *TA-W-62,097; Elliott Brother Steel; New Castle, PA: September 14, 2006.* *TA-W-62,198; Shorewood Packaging Corp., Consumer Packaging Division, On-Site Leased Worker From Talent Tree, Waterbury, CT: September 24, 2006.* *TA-W-62,327; Coshocton Leasing Company LLC; d/b/a Pretty Products, LLC, Pretty Products, Inc., Coshocton, OH: October 17, 2006.* *TA-W-62,362; MW Custom Papers, LLC; Laurel Mill, A Subsidiary of Meadwestvaco Corp., South Lee, MA: October 24, 2006.* *TA-W-62,384; Energy Conversion Systems; Dunn, NC: October 29, 2006.* *TA-W-62,402; Alma Products; Automotive Air-Conditioner Compressors, Alma, MI: October 25, 2006.* *TA-W-62,552; Hayes Lemmerz; Technical Center, Ferndale, MI: December 6, 2006.* *TA-W-62,240; Toluca Garment Company; Toluca, IL: September 21, 2006.* *TA-W-62,438; Chrysler LLC; St. Louis South Assembly Div., Fenton, MO: November 7, 2006.* The following certifications have been issued. The requirements of section 222(a)(2)(B) (shift in production) and section 246(a)(3)(A)(ii) of the Trade Act have been met. *TA-W-62,338; Wireco Worldgroup, Inc., formerly know as Wire Rope Corporation of America, St. Joseph, MO: October 17, 2006.* *TA-W-62,401; Victor Forstmann, Inc., East Dublin, GA: July 27, 2007.* *TA-W-62,408; PQ Corporation; Anderson Plant, Anderson, IN: November 5, 2006.* *TA-W-62,409; Stanric, Inc., Engine Management Division, Fajardo, PR: November 1, 2006.* *TA-W-62,427; UNI-Cadillac, LLC; Division of Universal Trim, Inc., Cadillac, MI: November 6, 2006.* *TA-W-62,460; Amweld Building Products; Garrettsville Facility, Garrettsville, OH: November 2, 2006.* *TA-W-62,460A; Amweld Building Products; Niles Facility, Niles, OH: November 2, 2006.* *TA-W-62,503; Black and Decker Abrasives, Inc., On-Site Leased Workers from Willstaff, Marshall, TX: November 26, 2006.* *TA-W-62,513; SE-GI Products, Inc.; Including Westaff, Norco, CA: November 28, 2006.* *TA-W-62,042; Tecumseh Power Company; Grafton, WI: August 22, 2006.* *TA-W-62,282; National Starch and Chemical Company; Specialty Starches Div., Island Falls, ME: October 5, 2006.* *TA-W-62,431; Bierner Hat Company; Div. of F&M Hat Company, Dallas, TX: August 18, 2007.* *TA-W-62,492; Thule Towing Systems; d/b/a Titan, Wyandotte, MI: November 21, 2006.* *TA-W-62,496; GE Lighting Systems, Inc., Die Cast Department, Spherion, East Flat Rock, NC: November 20, 2006.* *TA-W-62,496A; GE Lighting Systems, Inc., Sheet Metal Department, East Flat Rock, NC: November 20, 2006.* *TA-W-62,496B; GE Lighting Systems, Inc., Ballast Department, East Flat Rock, NC: November 20, 2006.* *TA-W-62,496C; GE Lighting Systems, Inc., NATCO Department, East Flat Rock, NC: November 20, 2006.* The following certifications have been issued. The requirements of section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and section 246(a)(3)(A)(ii) of the Trade Act have been met. *TA-W-62,086; Prelude Foam Products, Inc., Leased On-Site Workers from Ablest and Temporary Staffing, Thomasville, NC: August 31, 2006.* The following certifications have been issued. The requirements of section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and section 246(a)(3)(A)(ii) of the Trade Act have been met. *TA-W-62,430; Pageland Screen Printers; Pageland, SC: November 6, 2006.* Negative Determinations for Alternative Trade Adjustment Assistance In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified. The Department has determined that criterion
(1)of section 246 has not been met. The firm does not have a significant number of workers 50 years of age or older. *TA-W-62,465; Hyper Knits Sales, Inc., A Subsidiary of Safer Holding Group, New York, NY.* *TA-W-62,084; Weldsource Alliance, Inc., OskKosh, WI.* *TA-W-61,934; Maxtex Fibre Recycling, Inc., Eden Plant, Eden, NY.* The Department has determined that criterion
(2)of section 246 has not been met. Workers at the firm possess skills that are easily transferable. *TA-W-62,431; Bierner Hat Company; Div. of F&M Hat Company, Dallas, TX.* The Department has determined that criterion
(3)of section 246 has not been met. Competition conditions within the workers' industry are not adverse. *None.* Negative Determinations for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified. Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA. The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met. *TA-W-62,260; Flexsteel Industries, Inc., Dubuque, IA.* *TA-W-62,343; Parametric Technology Corporation, Arden Hills Division, Arden Hills, MN.* *TA-W-62,464; Engineered Plastic Components, Rantoul, IL.* *TA-W-62,507; Chester Bednar Rental Realty; Washington, PA.* The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met. *TA-W-62,453; BASF Corporation; Enka, NC.* *TA-W-62,471; AGY; Huntingdon, PA.* The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met. *TA-W-61,963; PennTecQ, Inc., Greenville, PA.* *TA-W-62,003; Custom Tooling Systems, Inc., Zeeland, MI.* *TA-W-62,071; Bedford Fair Apparel; A Division of Charming Shoppes, Inc., Greenwich, CT.* *TA-W-62,441; Hitachi Global Storage Technology, San Jose, CA.* *TA-W-62,334; Mammoth, Inc., A Subsidiary of Nortek, Inc., Chaska, MN.* *TA-W-62,389; Peer Foods Group, Inc., On-Site Leased Workers of Personnel Management, Chicago, IL.* The workers' firm does not produce an article as required for certification under section 222 of the Trade Act of 1974. *TA-W-62,339; Teleplan Wireless Services, Chanhassen, MN.* *TA-W-62,385; Windstream Communications, Inc., Broadband Customer Care Center, Lincoln, NE.* *TA-W-62,424; Tanner Companies LLC; Rutherfordton, NC.* *TA-W-62,444; Poirier's Inc., Fall River, MA.* *TA-W-62,469; Springs Global, US, Inc., Springs Direct Division, Corporate Support Group, Lancaster, SC.* *TA-W-62,469A; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Albertville, MN.* *TA-W-62,469AA; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Lincoln City, OR.* *TA-W-62,469B; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Asheville, NC.* *TA-W-62,469BB; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Locust Grove, GA.* *TA-W-62,469C; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Batesville, MS.* *TA-W-62,469CC; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Loveland, CO.* *TA-W-62,469D; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Bend, OR* . *TA-W-62,469DD; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Myrtle Beach, SC* . *TA-W-62,469E; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Birch Run, MI* . *TA-W-62,469EE; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Opelika, AL* . *TA-W-62,469F; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Boise, ID* . *TA-W-62,469FF; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Osage Beach, MO* . *TA-W-62,469G; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Branson, MO* . *TA-W-62,469GG; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Pigeon Forge, TN* . *TA-W-62,469H; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Burbank, OH* . *TA-W-62,469HH; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Queenstown, MD* . *TA-W-62,469I; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Calhoun, GA* . *TA-W-62,469II; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Rehoboth Beach, DE* . *TA-W-62,469J; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Castle Rock, CO* . *TA-W-62,469JJ; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Rockvale, PA* . *TA-W-62,469K; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Commerce, GA* . *TA-W-62,469KK; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Rockvale, PA* . *TA-W-62,469L; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Conroe, TX* . *TA-W-62,469LL; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, San Marcos, TX* . *TA-W-62,469M; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Darien, GA* . *TA-W-62,469MM; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, North Conway, NH* . *TA-W-62,469N; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Ellenton, FL* . *TA-W-62,469NN; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Tannersville, PA* . *TA-W-62,469O; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Gaffney, SC* . *TA-W-62,469OO; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Tilton, NH* . *TA-W-62,469P; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Gainsville, TX* . *TA-W-62,469PP; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Vero Beach, FL* . *TA-W-62,469Q; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Gilroy, CA* . *TA-W-62,469QQ; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Waterloo, NY* . *TA-W-62,469R; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Grove City, PA* . *TA-W-62,469RR; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Westbrook, CT* . *TA-W-62,469S; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Gulfport, MS* . *TA-W-62,469T; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Hagerstown, MD* . *TA-W-62,469U; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Hershey, PA* . *TA-W-62,469V; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Hillsboro, TX* . *TA-W-62,469W; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Jeffersonville, OH* . *TA-W-62,469X; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Johnson Creek, WI* . *TA-W-62,469Y; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Lancaster, SC* . *TA-W-62,469Z; Springs Global, US, Inc., Springmaid Wamsutta Factory Store Division, Las Vegas, NV* . *TA-W-62,497; H & W Trucking Co., Inc., Mount Airy, NC* . *TA-W-62,526; Bulk Bag Express, Inc., Malvern, AR* . The investigation revealed that criteria of section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA. *None.* I hereby certify that the aforementioned determinations were issued during the period of *December 10 through December 14, 2007* . Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address. Dated: December 21, 2007. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E7-25361 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration Investigations Regarding Certifications of Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance Petitions have been filed with the Secretary of Labor under Section 221
(a)of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221
(a)of the Act. The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved. The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than January 10, 2008. Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than January 10, 2008. The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210. Signed at Washington, DC, this 18th day of December 2007. Ralph DiBattista, Director, Division of Trade Adjustment Assistance. Appendix [TAA petitions instituted between 12/11/07 and 12/14/07] TA-W Subject firm (petitioners) Location Date of institution Date of petition 62547 Lighting Products, Inc. (IUECWA) Hubbard, OH 12/11/07 12/06/07 62548 Kaso Plastics
(Wkrs)Vancouver, WA 12/11/07 12/03/07 62549 Thermo Fisher Scientific (UBCJA) Two Rivers, WI 12/11/07 12/10/07 62550 Nelson Staffing (State) Redwood City, CA 12/11/07 12/07/07 62551 Lenovo
(Wkrs)Belleve, WA 12/11/07 11/30/07 62552 Hayes Lemmerz (State) Ferndale, MI 12/11/07 12/06/07 62553 A.L.A Casting Company, Inc.
(Wkrs)Long Island City, NY 12/11/07 11/27/07 62554 MI Windows and Doors, Inc.
(Comp)Millen, GA 12/11/07 12/10/07 62555 Carson's Furniture
(Wkrs)Archdale, NC 12/11/07 12/10/07 62556 Magneti Marelli North America, Inc.
(Comp)Kingsport, TN 12/12/07 12/11/07 62557 Sports Belle, Inc.
(Comp)Knoxville, TN 12/12/07 12/06/07 62558 HSBC (State) Fort Mill, SC 12/12/07 12/11/07 62559 Hyde Tools, Inc.
(Comp)Southbridge, MA 12/12/07 12/10/07 62560 Motorola, Inc. (State) Schaumburg, IL 12/12/07 12/10/07 62561 B & G International, Inc. (State) Newark, NJ 12/12/07 12/10/07 62562 Innovision Technologies, Inc. (State) Novi, MI 12/12/07 12/06/07 62563 Graham Packaging Company, L.P.
(Comp)Oakdale, CA 12/12/07 12/11/07 62564 Holt Sublimation Printing and Products, Inc.
(Comp)Burlington, NC 12/12/07 12/11/07 62565 Glen Raven
(Wkrs)Elberton, GA 12/12/07 12/05/07 62566 WestPoint Home
(Comp)Valley, AL 12/12/07 12/10/07 62567 Alcatel-Lucent (Union) North Andover, MA 12/12/07 12/10/07 62568 IBM
(Wkrs)Lexington, KY 12/12/07 12/05/07 62569 New York Air Brake
(Comp)Watertown, NY 12/12/07 12/06/07 62570 Umpqua Lumber Company
(Comp)Dillard, OR 12/13/07 12/10/07 62571 France Scott Fetzer Company
(Wkrs)Fairview, TN 12/13/07 12/10/07 62572 Ethicon, Johnson and Johnson (UFCWIU) San Angelo, TX 12/13/07 12/12/07 62573 Lexmark International, Inc. (State) Lexington, KY 12/13/07 12/13/07 62574 Molex, Inc. (State) Maumelle, AR 12/14/07 12/13/07 62575 Norgren, Inc.
(Comp)Littleton, CO 12/14/07 12/13/07 62576 U.S. Pipe and Foundry (State) Burlington, NJ 12/14/07 12/13/07 [FR Doc. E7-25359 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance TA-W-60,252 Shogren Hosiery Manufacturing Co., Inc. Including Leased Workers of Corestaff, Concord, North Carolina Including Employees of Shogren Hosiery Manufacturing Co., Inc., Concord, North Carolina Located at the Following Locations TA-W-60,252A; Plano, Texas TA-W-60,252B; Freehold, New Jersey TA-W-60,252C; Hope Sound, Florida TA-W-60,252D; Boca Raton, Florida TA-W-60,252E; Bentonville, Arkansas In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on November 16, 2006, applicable to workers of Shogren Hosiery Manufacturing Co., Inc., including leased workers of Corestaff, Concord, North Carolina. The notice was published soon in the **Federal Register** on November 28, 2006 (71 FR 68840). At the request of a company official, the Department reviewed the certification for workers of the subject firm. New information shows that worker separations have occurred involving employees of the Concord, North Carolina facility of Shogren Hosiery Manufacturing Co., Inc. working out of Plano, Texas, Freehold, New Jersey, Hope Sound, Florida, Boca Raton, Florida and Bentonville, Arkansas. These employees provided customer liaison and sales functions in support of the production of women's hosiery and tights produced at the Concord, North Carolina location of the subject firm. Based on these findings, the Department is amending this certification to include employees of the Concord, North Carolina facility of Shogren Hosiery Manufacturing Co., Inc. working out of the above mentioned locations. The intent of the Department's certification is to include all workers of Shogren Hosiery Manufacturing Co., Inc., Concord, North Carolina who were adversely affected by increased imports. The amended notice applicable to TA-W-60,252 is hereby issued as follows: “All workers of Shogren Hosiery Manufacturing Co., Inc., including leased workers of Corestaff, Concord, North Carolina (TA-W-60,252), including employees of Shogren Hosiery Manufacturing Co., Inc., Concord, North Carolina located in Plano, Texas (TA-W-60,252A), Freehold, New Jersey (TA-W-60,252B), Hope Sound, Florida (TA-W-60,252C), Boca Raton, Florida (TA-W-60,252D) and Bentonville, Arkansas (TA-W-60,252E), who became totally or partially separated from employment on or after October 17, 2005, through November 16, 2008, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.” Signed at Washington, DC, this 14th day of December 2007. Elliott S. Kushner, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E7-25363 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-60,541] Siemens VDO Automotive Corporation, Formerly Known as American Electronic Corporation, a Subsidiary of Siemens AG, Sensors Division—Elkhart Facility, Now Known as Continental AG, Elkhart, Indiana; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on December 19, 2006, applicable to workers of Siemens VDO Automotive Corporation, formerly known as American Electronic Corp., a subsidiary of Siemens AG, Sensors Div.—Elkhart Facility, Elkhart, Indiana. The notice was published in the **Federal Register** on January 16, 2007 (72 FR 1770). At the request of International Brotherhood of Teamsters (IBT), Local 364, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of electronic sensor devices for automobiles. New information shows that following a change in ownership, Siemens VDO Automotive Corporation, formerly known as American Electronic Corporation, a subsidiary of Siemens AG, Sensors Division—Elkhart Facility, is now known as Continental AG. Workers separated from employment at the subject firm had their wages reported under a separate unemployment insurance
(UI)tax account for Continental AG. Accordingly, the Department is amending this certification to properly reflect this matter. The intent of the Department's certification is to include all workers of Siemens VDO Automotive Corporation, formerly known as American Electronic Corporation, a subsidiary of Siemens AG, Sensors Division—Elkhart Facility, now known as Continental AG, who were adversely affected by a shift in production of electronic sensor devices for automobiles to Mexico. The amended notice applicable to TA-W-60,541 is hereby issued as follows: “All workers of Siemens VDO Automotive Corporation, formerly known as American Electronics Corporation, a subsidiary of Siemens AG, Sensors Division—Elkhart Facility, now known as Continental AG, Elkhart, Indiana, who became totally or partially separated from employment on or after December 4, 2005, through December 19, 2008, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.” Signed at Washington, DC, this 20th day of December 2007. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E7-25364 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration Investigations Regarding Certifications of Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act. The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved. The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than January 10, 2008. Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than January 10, 2008. The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210. Signed at Washington, DC, this 26th day of December 2007. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. Appendix [TAA petitions instituted between 12/17/07 and 12/21/07] TA-W Subject firm (Petitioners) Location Date of institution Date of petition 62577 Warnaco Group
(Wkrs)Los Angeles, CA 12/17/07 12/13/07 62578 Safety Light Corporation
(Comp)Bloomsburg, PA 12/17/07 12/10/07 62579 Durham Manufacturing Company (State) Durham, CT 12/17/07 12/14/07 62580 Belden CDT Networking, Inc. dba Mohawk (State) Manchester, CT 12/18/07 12/17/07 62581 ADA Metal Products, Inc.
(Comp)Lincolnwood, IL 12/18/07 12/17/07 62582 Smurfit Stone
(Wkrs)El Paso, TX 12/18/07 12/11/07 62583 Peoploungers
(Wkrs)Nettleton, MS 12/18/07 12/18/07 62584 General Dynamics (Union) Scranton, PA 12/18/07 12/14/07 62585 New NY Fashion, Inc.
(Wkrs)New York, NY 12/18/07 12/07/07 62586 Tennplasco Mark (State) Lafayette, TN 12/18/07 12/17/07 62587 Deluxe Media Services LLC
(Comp)Vernon Hills, IL 12/18/07 12/16/07 62588 Rad Technologies (State) North Reading, MA 12/18/07 12/13/07 62589 Hubbard Supply Company (State) Flint, MI 12/19/07 12/18/07 62590 Imation Corporation (State) Oakdale, MN 12/19/07 12/18/07 62591 Miss Elaine, Inc. (UNITE) St. Louis, MO 12/20/07 12/18/07 62592 J.H.L. Fashion, Inc.
(Wkrs)New York, NY 12/20/07 12/19/07 62593 Cudahy Tanning Company Inc.
(Comp)Cudahy, WI 12/20/07 12/19/07 62594 Hallmark Cards Inc.
(Wkrs)Kansas City, MO 12/20/07 12/19/07 62595 Cisco Systems Inc.
(Wkrs)Petaluma, CA 12/20/07 12/07/07 62596 First Inertia Switch Ltd.
(Rep)Grand Blanc, MI 12/20/07 12/19/07 62597 Parma Corporation
(Comp)Denton, NC 12/20/07 12/19/07 62598 Matthew Cole, Inc.
(Comp)Philadelphia, PA 12/21/07 12/21/07 62599 J.C. Matthews and Co., Inc.
(Comp)Galax, VA 12/21/07 07/14/07 62600 OSRAM Sylvania Products Inc.
(Comp)Waldoboro, ME 12/21/07 12/19/07 [FR Doc. E7-25360 Filed 12-28-07; 8:45 am] BILLING CODE 4510-FN-P NATIONAL SCIENCE FOUNDATION National Science Board; Committee on Programs and Plans; Sunshine Act; Notice The National Science Board's Committee on Programs and Plans, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a teleconference for the transaction of National Science Board business and other matters specified, as follows: Date and Time: Thursday, January 10, 2008, 11 a.m. Subject Matter: Recommendations from the Committee on Programs and Plans to the Board for responding to Congress regarding facilities operations and maintenance costs. Status: Open. Place: This teleconference will originate at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A room will be available to the public to listen to this teleconference but visitors must report to the NSF reception desk at the 9th and N. Stuart Streets entrance to receive a visitor's badge. Please check with the reception desk for the room number. Please refer to the National Science Board Web site ( *http://www.nsf.gov/nsb* ) for information or schedule updates, or contact: Dr. Robert Webber, National Science Board Office, 4201 Wilson Blvd., Arlington, VA 22230. Telephone:
(703)292-7000. Russell Moy, Attorney-Advisor. [FR Doc. E7-25308 Filed 12-28-07; 8:45 am] BILLING CODE 7555-01-P [?USGPO Galley End:?] NUCLEAR REGULATORY COMMISSION [IA-07-048] In the Matter of Cary W. Hedger; Order Prohibiting Involvement in NRC-Licensed Activities (Effective Immediately) I Cary W. Hedger was employed as the Operations Manager and Assistant Radiation Safety Officer
(RSO)at Alpha Omega Services, Inc.
(AOS)in January 2003. Currently, Mr. Hedger is the RSO, President, and an owner of AOS. In January 2003, AOS was the holder of a U.S. Nuclear Regulatory Commission (NRC or Commission) Certificate of Compliance
(CoC)No. 5979, Revision 10, for the Model No. 5979 package (NRC Docket Number 71-5979) issued by the NRC, and an NRC-approved Quality Assurance
(QA)Program Approval holder (NRC Docket Number 71-0086) pursuant to Part 71 of Title 10 of the Code of Federal Regulations (10 CFR). The CoC authorized use of the Model No. 5979 package under the general license provisions of 10 CFR 71.12 [currently 10 CFR 71.17]. The QA Program Approval satisfied the requirements of 10 CFR 71.12(b) [currently 10 CFR 71.17(b)], and 10 CFR 71.101(c) [currently 10 CFR 71.101(c)(1)] by authorizing activities be conducted under criteria of Subpart H of 10 CFR Part 71, “Quality Assurance.” II On November 18, 2004, an NRC inspection was conducted at the AOS facility. During that inspection, certain nonconformances regarding a shipping package, serial number 1B, CoC No. 5979, Model No. 5979, were brought to the NRC's attention. Subsequently, concerns about the nonconformances led to an investigation by the NRC's Office of Investigation. Based on the investigation and Mr. Hedger's presentation at a November 8, 2007, pre-decisional enforcement conference, the NRC has concluded that Mr. Hedger engaged in two examples of deliberate misconduct in violation of 10 CFR 71.8, “Deliberate misconduct.” First, Cary W. Hedger deliberately provided materially inaccurate information to an NRC licensee and to a contractor to the licensee. Specifically, in January 2003, Mr. Hedger performed a maintenance inspection of a Model 5979 shipping package, serial number 1B, NRC Certificate of Compliance
(CoC)No. 5979, and certified that the package conformed to CoC No. 5979, Revision 10. Mr. Hedger purposely indicated on the maintenance inspection checklist that the cask end caps conformed to the CoC when he knew they did not. The cask end caps did not conform to the drawings in the CoC because they were physically (weight and materials) and dimensionally (end cap thickness and length of bolts) different from the approved end cap designs. AOS then returned the package to its owner, Foss Therapy Services (FTS), along with the inaccurate maintenance inspection checklist. SPEC was an NRC licensee pursuant to 10 CFR Part 110, and a CoC and QA Program Approval holder under 10 CFR Part 71. FTS subsequently provided the package to Source Production and Equipment Company
(SPEC)for export of licensed radioactive material on FTS's behalf. AOS specifically provided the inaccurate maintenance inspection checklist to FTS by, at minimum, giving it to an official of FTS, who in his capacity as a contractor to SPEC performed inspections of packages exported by SPEC. When performing pre-shipment inspections of the subject FTS package for SPEC, the contractor relied on the inaccurate checklist, instead of comparing the package to the drawings in CoC No. 5979, to certify that the package met all federal requirements. The contractor also supplied the inaccurate maintenance inspection checklist to SPEC. The inaccurate checklist was material to the NRC because it concealed the fact that the package did not comply with CoC No. 5979. Second, Cary W. Hedger deliberately caused an NRC licensee to violate NRC requirements. SPEC made at least three export shipments of licensed radioactive material between July 2003 and May 2004, when the Model No. 5979 package was in a nonconforming condition. SPEC relied upon its contractor's certification that the package met all federal requirements, and upon the inaccurate maintenance inspection checklist created by Mr. Hedger. Because SPEC used the nonconforming package to deliver for transport and to transport licensed material, and pursuant to 10 CFR 71.17(c)(2) [formerly 71.12(c)(2)], “General license: NRC-approved package,” SPEC did not have a license to deliver for transport or to transport licensed material. As a result, SPEC violated 10 CFR 71.3, “Requirement for license,” which provides that a license is necessary to deliver for transport or to transport licensed material. III Based on the above, it appears that Cary W. Hedger has engaged in deliberate misconduct in violation of 10 CFR 71.8, “Deliberate misconduct.” The NRC must be able to rely on the certificate and QA Program Approval holder and its employees to comply with NRC requirements, including the requirement to provide information that is complete and accurate in all material respects. Mr. Hedger's actions in causing SPEC, an NRC Licensee, to violate 10 CFR 71.3, and his misrepresentations to SPEC, have raised serious doubt as to whether he can be relied upon to comply with NRC requirements. [?USGPO Galley End:?] While the NRC is not aware of actual safety consequences associated with the shipments, the potential safety consequences were significant, considering the potential adverse impact of shipping radioactive materials in an unapproved package design that had not been demonstrated to meet the transportation package approval standards for both normal and hypothetical accident conditions as required by 10 CFR part 71. Of the many controls that are in place to assure public health and safety during the transport of radioactive materials, one of the most important is that the configuration of the package conforms to that analyzed and approved by the NRC staff, through the package CoC process, so as to assure integrity of the package during transportation for both normal and hypothetical accident conditions. In this case, the package integrity is of particular safety concern given the quantities of licensed radioactive material that were transported between July 2003 and May 2004. Consequently, I lack the requisite reasonable assurance that licensed, certificated or QA activities can be conducted in compliance with the Commission's requirements, and that the health and safety of the public will be protected, if Cary W. Hedger is permitted at this time to be involved in NRC-licensed, certificated or QA activities. Therefore, the public health, safety, and interest require that Mr. Hedger be prohibited from any involvement in all NRC-licensed activities, including those associated with 10 CFR part 71 packaging QA Program Approval or certificate holder activity, for a period of three years from the date of this Order. Ordinarily, NRC would prohibit involvement in licensed activities for a period of five years in a case such as this. However, the NRC is mitigating the prohibition to three years because Mr. Hedger identified certain nonconformances in the shipping package number 1B, CoC No. 5979, Model No. 5979, to the NRC. Although he did not identify the nonconforming end-caps to the NRC, Mr. Hedger's disclosure ultimately led to the discontinued use of the package in the nonconforming condition. Furthermore, pursuant to 10 CFR 2.202, “Orders,” I find that the significance of Mr. Hedger's conduct described above is such that the public health, safety, and interest require that this Order be immediately effective. IV Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, 10 CFR 71.8, and 10 CFR 150.20, *it is hereby ordered, effective immediately, that* : 1. Cary W. Hedger is prohibited for *three* years from the date of this Order from engaging in NRC-licensed activities. NRC-licensed activities are those activities that are conducted pursuant to a specific or general license issued by the NRC, including, but not limited to, the licensing, packaging certificate and QA program approval requirements of 10 CFR part 71, and those activities of Agreement State licensees conducted pursuant to the authority granted by 10 CFR 150.20. 2. If Cary W. Hedger is currently involved with another licensee in NRC-licensed activities, other than AOS, he must immediately cease those activities, and inform the NRC of the name, address, and telephone number of that licensee, and provide a copy of this Order to the employer. The Director, Office of Enforcement, may, in writing, relax or rescind any of the above conditions upon demonstration by Cary W. Hedger of good cause. V [?USGPO Galley End:?] In accordance with 10 CFR 2.202, Cary W. Hedger must submit an answer to this Order within 20 days of its issuance. In addition, Cary W. Hedger, and any other persons adversely affected by this Order may request a hearing on this Order within 20 days of its issuance. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, and include a statement of good cause for the extension. The answer shall be in writing and under oath or affirmation, and shall specifically admit or deny each allegation or charge made in this Order. The answer shall set forth the matters of fact and law on which Cary W. Hedger or other persons adversely affected relies and the reasons as to why this Order should not have been issued. The answer may consent to the Order. Any answer shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, *ATTN:* Chief, Rulemakings and Adjudications Staff, Washington, DC 20555-0001. Copies shall also be sent to: the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; the Assistant General Counsel for Materials Litigation and Enforcement at the same address; and to Cary W. Hedger if the answer is by a person other than Cary W. Hedger. If a person other than Cary W. Hedger requests a hearing, that person shall set forth with particularity the manner in which his or her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f). If Cary W. Hedger or a person whose interest is adversely affected requests a hearing, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. Pursuant to 10 CFR 2.202(c)(2)(i), Cary W. Hedger, or any other person adversely affected by this Order may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. The motion must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on. A request for a hearing or to set aside the immediate effectiveness of this order must be filed in accordance with the NRC E-Filing rule, which became effective on October 15, 2007. The NRC E-filing Final Rule was issued on August, 28 2007, (72 Fed. Reg. 49,139) and codified in pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process requires participants to submit and serve documents over the internet or, in some cases, to mail copies on electronic optical storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below. To comply with the procedural requirements associated with E-Filing, at least five
(5)days prior to the filing deadline the requestor must contact the Office of the Secretary by e-mail at *HEARINGDOCKET@NRC.GOV* , or by calling
(301)415-1677, to request
(1)a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any NRC proceeding in which it is participating; and/or
(2)creation of an electronic docket for the proceeding (even in instances when the requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each requestor will need to download the Workplace Forms Viewer TM to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms Viewer TM is free and is available at *http://www.nrc.gov/site-help/e-submittals/install-viewer.html* . Information about applying for a digital ID certificate also is available on NRC's public Web site at *http://www.nrc.gov/site-help/e-submittals/apply-certificates.html* . Once a requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for a hearing through EIE. Submissions should be in Portable Document Format
(PDF)in accordance with NRC guidance available on the NRC public Web site at *http://www.nrc.gov/site-help/e-submittals.html* . A filing is considered complete at the time the filer submits its document through EIE. To be timely, electronic filings must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the document on those participants separately. Therefore, any others who wish to participate in the proceeding (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request is filed so that they may obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at *http://www.nrc.gov/site-help/e-submittals.html* or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is
(800)397-4209 or locally,
(301)415-4737. Participants who believe that they have good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted 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; or
(2)courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, *Attention:* Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at *http://ehd.nrc.gov/EHD_Proceeding/home.asp* , unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, Participants are requested not to include copyrighted materials in their works. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, this Order shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received. *An answer or request for hearing shall not stay the immediate effectiveness of this order* . For the Nuclear Regulatory Commission. Dated this 20th day of December 2007. Martin J. Virgilio, Deputy Executive Director for Materials, Waste, Research, State, Tribal and Compliance Programs, Office of the Executive Director for Operations. [FR Doc. E7-25412 Filed 12-28-07; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [Docket No. 50-123] The University of Missouri—Rolla: Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of the University of Missouri—Rolla Research Reactor Facility License No. R-79 for an Additional 20-Year Period The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering an application for the renewal of Facility License No. R-79, which authorizes the University of Missouri—Rolla (the licensee) to operate the University of Missouri—Rolla Research Reactor
(UMRR)at a maximum steady-state thermal power of 200 Kilowatts
(kW)thermal power. The renewed license would authorize the applicant to operate the UMRR for an additional 20-years beyond the period specified in the current license. The current license for the UMRR expired on January 14, 2005. On August 30, 2004, the Commission's staff received an application from the licensee filed pursuant to 10 CFR Part 50.51(a), to renew Facility License No. R-79 for the UMRR. Because the license renewal application was filed in a timely manner in accordance with 10 CFR 2.109, the license will not be deemed to have expired until the license renewal application has been finally determined. The Commission's staff has determined that the licensee has submitted sufficient information in accordance with 10 CFR 50.33 and 50.34 that the application is acceptable for docketing. The current Docket No. 50-123 for Facility License No. R-79, will be retained. The docketing of the renewal application does not preclude requesting additional information as the review proceeds, nor does it predict whether the Commission will grant or deny the application. Prior to a decision to renew the license, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. Within 60 days after the date of publication of this notice, the applicant may file a request for a hearing, and any person(s) whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request via electronic submission through the NRC E-filing system 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 person(s) 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 O1F21, 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 by the above date, 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/requestor 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 identify 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 intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner 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. A request for hearing or a petition for leave to intervene must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated on August 28, 2007 (72 FR 49139). The E-Filing process requires participants to submit and serve documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below. To comply with the procedural requirements of E-Filing, at least five
(5)days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at *HEARINGDOCKET@NRC.GOV* , or by calling
(301)415-1677, to request
(1)a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and/or
(2)creation of an electronic docket for the proceeding (even in instances in which the petitioner/requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each petitioner/requestor will need to download the Workplace Forms Viewer TM to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms Viewer TM is free and is available at *http://www.nrc.gov/site-help/e-submittals/install-viewer.html* . Information about applying for a digital ID certificate is available on NRC's public Web site at *http://www.nrc.gov/site-help/e-submittals/apply-certificates.html* . Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format
(PDF)in accordance with NRC guidance available on the NRC public Web site at *http://www.nrc.gov/site-help/e-submittals.html* . A filing is considered complete at the time the filer submits its documents through EIE. To be timely, an electronic filing must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at *http://www.nrc.gov/site-help/e-submittals.html* or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is
(800)397-4209 or locally,
(301)415-4737. Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted 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; or
(2)courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Time on the due date. Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at *http://ehd.nrc.gov/EHD_Proceeding/home.asp* , unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, Participants are requested not to include copyrighted materials in their submissions. Detailed guidance which the NRC uses to review applications for the renewal of non-power reactor licenses can be found in the document NUREG-1537, entitled “Guidelines for Preparing and Reviewing Applications for the Licensing of Non-Power Reactors,” can be obtained from the Commission's PDR. The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The detailed review guidance (NUREG-1537) may be accessed through the NRC's Public Electronic Reading Room on the Internet at *http://www.nrc.gov/reading-rm/adams.html* under ADAMS Accession No. ML041230055 for part one and ML041230048 for part two. Copies of the application to renew the facility license for the licensee are available for public inspection at the Commission's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, 20852-2738. The initial application and other related documents may be accessed through the NRC's Public Electronic Reading Room, at the address mentioned above, under ADAMS Accession Nos.: ML073200760, ML042820116, ML042820139, ML042820131, ML042820135, ML072340514, ML040720806. Persons who do not have access to ADAMS, or who encounter problems in accessing the documents located in ADAMS, should contact the NRC PDR Reference staff by telephone at 1-800-397-4209, or 301-415-4737, or by e-mail to *pdr@nrc.gov* . Dated at Rockville, Maryland, this 19th day of December 2007. For the Nuclear Regulatory Commission. Alexander Adams, Jr., Acting Chief Research and Test Reactors Branch A, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation. [FR Doc. E7-25413 Filed 12-28-07; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Geologic Repository Operations Area Security and Material Control and Accounting Requirements; Meeting AGENCY: Nuclear Regulatory Commission. ACTION: Notice of meeting. SUMMARY: The Nuclear Regulatory Commission
(NRC)has published a proposed rule on Geologic Repository Operations Area Security and Material Control and Accounting Requirements for public comment (72 FR 72522; December 20, 2007). The public comment period runs from December 20, 2007 thru March 4, 2008. As part of the public comment process, the NRC plans to hold a transcribed public meeting to solicit comments on the proposed rule. NRC staff will be taking comments only and will not be prepared to discuss or respond to comments or questions on the rule. The meeting is open to the public and all interested parties may attend. The meeting will be held on January 23, 2008, in the NRC Hearing Facility at the Pacific Enterprise Plaza, Building One, 3250 Pepper Lane, Las Vegas, Nevada. During the comment period, comments may also be mailed to the NRC or submitted via fax or e-mail. DATES: January 23, 2008 from 3 p.m. to 7 p.m. ADDRESSES: The January 23 meeting will be held in the NRC Hearing Facility at the Pacific Enterprise Plaza, Building One, 3250 Pepper Lane, Las Vegas, NV 89120. FOR FURTHER INFORMATION CONTACT: Merri Horn, telephone
(301)415-8126, e-mail, *mlh1@nrc.gov* of the Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. SUPPLEMENTARY INFORMATION: The purpose of this meeting is to obtain stakeholder comments on the Geologic Repository Operations Area Security and Material Control and Accounting Requirements Proposed Rule. The NRC staff will only be accepting comments at the meeting; staff will not be prepared to answer any questions related to the rule. The proposed rule would revise the security requirements and material control and accounting (MC&A) requirements for a geologic repository operations area (GROA). The goal of this rulemaking is to ensure that effective security measures are in place for the protection of high-level radioactive waste
(HLW)and other radioactive material at a GROA given the post-September 11, 2001, threat environment. New requirements for specific training enhancements, improved access authorization, enhancements to defensive strategies, and enhanced reporting requirements would be incorporated. The proposed rule would establish general performance objectives and corresponding system capabilities for the GROA MC&A program, with a focus on strengthening, streamlining, and consolidating all MC&A regulations specific to a GROA. In addition, the proposed rule would require the emergency plan to address radiological emergencies. The proposed rule is available via the Federal eRulemaking Portal *http://www.regulations.gov* . *Agenda:* Welcome—10 minutes; NRC staff presentation on Rule Requirements—30 minutes; Public Comment—remainder. There will be a 15 minute break at 5 p.m. To ensure that everyone who wishes has the chance to comment, we may impose a time limit on speakers. Attendees are requested to notify Vivian Mehrhoff, telephone
(702)794-5053, e-mail *vlm@nrc.gov* to pre-register for the meetings. If you wish to pre-register, you need to contact the above individual by January 18, 2008. You will be able to register at the meeting, as well. Dated at Rockville, Maryland, this 20th day of December, 2007. For the Nuclear Regulatory Commission. Dennis K. Rathbun, Director, Division of Intergovernmental Liaison and Rulemaking, Office of Federal and State Materials and Environmental Management Programs. [FR Doc. E7-25415 Filed 12-28-07; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [Docket No. 70-143] Notice of License Amendment Request of Nuclear Fuel Services, Inc., Erwin, TN, and Opportunity To Request a Hearing AGENCY: Nuclear Regulatory Commission. ACTION: Notice of license amendment, and opportunity to request a hearing. DATE: A request for a hearing must be filed by February 29, 2008. FOR FURTHER INFORMATION CONTACT: Kevin M. Ramsey, Senior Project Manager, Fuel Manufacturing Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC, 20555. Telephone:
(301)492-3123; fax number:
(301)492-3359; e-mail: *kmr@nrc.gov* . SUPPLEMENTARY INFORMATION: I. Introduction The Nuclear Regulatory Commission
(NRC)has received, by letter dated August 31, 2007, a license amendment application from Nuclear Fuel Services, Inc., requesting authority to process uranium hexafluoride
(UF6)in a new Commercial Development
(CD)line at its facility site located in Erwin, Tennessee. License No. SNM-124 authorizes the licensee to manufacture nuclear reactor fuel. Specifically, the amendment provides authorization to convert high-enriched uranium
(HEU)in the form of UF6 into another chemical form (oxide or nitrate), which can be processed in the existing facility. An NRC administrative review, documented in a letter to Nuclear Fuel Services Inc., dated October 5, 2007, found the application acceptable to begin a technical review. If the NRC approves the amendment, the approval will be documented in an amendment to NRC License No. SNM-124. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations. These findings will be documented in a Safety Evaluation Report and an Environmental Assessment. II. Opportunity To Request a Hearing The NRC hereby provides notice that this is a proceeding regarding an application for a license amendment for a new process line. Any person whose interest may be affected by this proceeding and who desires to participate as a party must file a request for hearing, and a specification of the contentions which the person seeks to have litigated in the hearing, in accordance with the NRC E-Filing rule, which the NRC promulgated in August, 2007, 72 FR 49139 (August 28, 2007). The E-Filing rule requires participants to submit and serve documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below. To comply with the procedural requirements of E-Filing, at least five
(5)days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at *HEARINGDOCKET@NRC.GOV* , or by calling
(301)415-1677, to request:
(1)A digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and/or
(2)the creation of an electronic docket for the proceeding (even in instances for which the petitioner/requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each petitioner/requestor will need to download the Workplace Forms Viewer(tm) to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms Viewer(tm) is free and is available at *http://www.nrc.gov/site-help/e-submittals/install-viewer.html* . Information about applying for a digital ID certificate is available on NRC's public Web site at *http://www.nrc.gov/site-help/e-submittals/apply-certificates.html* . Once a petitioner/requestor has obtained a digital ID certificate, has a docket created, and downloaded the EIE viewer, they can then submit a request for a hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF), in accordance with NRC guidance available on the NRC public Web site at *http://www.nrc.gov/site-help/e-submittals.html* . A filing is considered complete at the time the filer submits its documents through EIE. To be timely, an electronic filing must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access, to the document, to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at *http://www.nrc.gov/site-help/e-submittals.html* or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is
(800)397-4209, or locally
(301)415-4737. Participants who believe they have good cause for not submitting documents electronically, must file a motion in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted 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; or
(2)courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document to all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m., Eastern Time, on the due date. Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket, which is available to the public at *http://ehd.nrc.gov/EHD_Proceeding/home.asp* , unless excluded, pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include social security numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, Participants are requested not to include copyrighted materials in their submission. The formal requirements for documents in 10 CFR 2.304(c)-(e) must be met. If the NRC grants an electronic document exemption in accordance with 10 CFR 2.302(g)(3), then the requirements for paper documents set forth in 10 CFR 2.304(b) must be met. In accordance with 10 CFR 2.309(b), a request for a hearing must be filed by February 29, 2008. In addition to meeting other applicable requirements of 10 CFR 2.309, the general requirements involving a request for a hearing filed by a person other than an applicant must state: 1. The name, address, and telephone number of the requester; 2. The nature of the requester's right under the Act to be made a party to the proceeding; 3. The nature and extent of the requester's property, financial, or other interest in the proceeding; 4. The possible effect of any decision or order that may be issued in the proceeding on the requester's interest; and 5. The circumstances establishing that the request for a hearing is timely in accordance with 10 CFR 2.309(b). In accordance with 10 CFR 2.309(f)(1), a request for a hearing or petitions for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must: 1. Provide a specific statement of the issue of law or fact to be raised or controverted; 2. Provide a brief explanation of the basis for the contention; 3. Demonstrate that the issue raised in the contention is within the scope of the proceeding; 4. Demonstrate that the issue raised in the contention is material to the findings that the NRC must make to support the action that is involved in the proceeding; 5. Provide a concise statement of the alleged facts or expert opinions that support the requester's/petitioner's position on the issue and on which the requester/petitioner intends to rely to support its position on the issue; and 6. Provide sufficient information to show that a genuine dispute exists with the applicant regarding a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the requester/petitioner disputes and the supporting reasons for each dispute, or, if the requester/petitioner believes the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the requester's/petitioner's belief. In addition, in accordance with 10 CFR 2.309(f)(2), contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to the petitioner. On issues arising under the National Environmental Policy Act, the requester/petitioner shall file contentions based on the applicant's environmental report. The requester/petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft, or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents. Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer. Each contention shall be given a separate numeric or alpha designation within one of the following groups: 1. Technical—primarily concerns issues relating to matters discussed or referenced in the Safety Evaluation Report for the proposed action. 2. Environmental—primarily concerns issues relating to matters discussed or referenced in the Environmental Report for the proposed action. 3. Emergency Planning—primarily concerns issues relating to matters discussed or referenced in the Emergency Plan as it relates to the proposed action. 4. Physical Security—primarily concerns issues relating to matters discussed or referenced in the Physical Security Plan as it relates to the proposed action. 5. Miscellaneous—does not fall into one of the categories outlined above. If the requester/petitioner believes a contention raises issues that cannot be classified as primarily falling into one of these categories, the requester/petitioner must set forth the contention and supporting bases, in full, separately for each category into which the requester/petitioner asserts the contention belongs, with a separate designation for that category. Requesters/petitioners should, when possible, consult with each other in preparing contentions and combine similar subject matter concerns into a joint contention, for which one of the co-sponsoring requesters/petitioners is designated the lead representative. Further, in accordance with 10 CFR 2.309(f)(3), any requester/petitioner that wishes to adopt a contention proposed by another requester/petitioner must do so, in accordance with the E-Filing rule, within 10 days of the date the contention is filed, and designate a representative who shall have the authority to act for the requester/petitioner. In accordance with 10 CFR 2.309(g), a request for hearing and/or petition for leave to intervene may also address the selection of the hearing procedures, taking into account the provisions of 10 CFR 2.310. III. Further Information Documents related to this action, including the application for amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html* . From this site, you can access the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The ADAMS accession number for the document related to this Notice is ML073090651, Redacted Version of Amendment Request for Processing UF6 in the CD Line Facility at the NFS Site. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room
(PDR)Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov* . These documents may also be viewed electronically on the public computers located at the NRC's PDR, O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee. Dated at Rockville, Maryland, this 12th day of December 2007. For the Nuclear Regulatory Commission. Peter J. Habighorst, Chief, Fuel Manufacturing Branch, Fuel Facility Licensing Directorate, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards. [FR Doc. E7-25406 Filed 12-28-07; 8:45 am] 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 December 6, 2007 to December 19, 2007. The last biweekly notice was published on December 18, 2007 (72 FR 71703). 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, person(s) 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 via electronic submission through the NRC E-Filing system 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 person(s) 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 hearing or a petition for leave to intervene must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 28, 2007 (72 FR 49139). The E-Filing process requires participants to submit and serve documents over the Internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below. To comply with the procedural requirements of E-Filing, at least five
(5)days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at *HEARINGDOCKET@NRC.GOV* , or by calling
(301)415-1677, to request
(1)a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and/or
(2)creation of an electronic docket for the proceeding (even in instances in which the petitioner/requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each petitioner/requestor will need to download the Workplace Forms Viewer TM to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms Viewer TM is free and is available at *http://www.nrc.gov/site-help/e-submittals/install-viewer.html* . Information about applying for a digital ID certificate is available on NRC's public Web site at *http://www.nrc.gov/site-help/e-submittals/apply-certificates.html* . Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format
(PDF)in accordance with NRC guidance available on the NRC public Web site at *http://www.nrc.gov/site-help/e-submittals.html* . A filing is considered complete at the time the filer submits its documents through EIE. To be timely, an electronic filing must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitted an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at *http://www.nrc.gov/site-help/e-submittals.html* or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is
(800)397-4209 or locally,
(301)415-4737. Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted 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; or
(2)courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, *Attention:* Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Time on the due date. Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at *http://ehd.nrc.gov/EHD_Proceeding/home.asp* , unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission. For further details with respect to this amendment action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site, *http://www.nrc.gov/reading-rm/adams.html* . If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1
(800)397-4209,
(301)415-4737 or by e-mail to *pdr@nrc.gov* . Carolina Power & Light Company, Docket No. 50-261, H. B. Robinson Steam Electric Plant, Unit No. 2, Darlington County, South Carolina. *Date of amendment request:* November 19, 2007. *Description of amendment request:* The proposed amendment would make administrative revisions to delete requirements that are obsolete or redundant, or correct and clarify the typing and formatting of other requirements. The proposed changes will not result in changes to the plant design or the procedural controls for the operation, surveillance, or maintenance of the plant. *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? No. The proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed changes are administrative. The changes delete obsolete or redundant requirements, clarify existing requirements, and correct typing and formatting errors. There will be no resulting changes to the plant design or procedural controls. 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 Previously Evaluated? No. The proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated. There are no physical changes being made to the plant or to the manner in which the plant is operated. Therefore, the 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 the Margin of Safety? No. The proposed changes do not involve a significant reduction in the margin of safety. There are no physical changes being made to the plant or to the manner in which the plant is operated. The proposed changes are administrative. The changes delete obsolete or redundant requirements, clarify existing requirements, and correct typing and formatting errors. Therefore, the changes do not involve a significant reduction in any margin of safety for HBRSEP [H.B. Robinson Steam Electric Plant], Unit No. 2. 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 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. Duke Power Company LLC, Docket No. 50-369, McGuire Nuclear Station, Unit 1, Mecklenburg County, North Carolina. *Date of amendment request:* February 21, 2007, as supplemented August 9, 2007. *Description of amendment request:* The proposed amendment would allow, on a one-time basis, an extension of the interval governing the conduct of the Integrated Leak Rate Test
(ILRT)for McGuire Nuclear Station, Unit 1. The proposed amendment would revise administrative Technical Specification
(TS)5.5.2, “Containment Leak Rate Testing Program,” from the currently approved 15-year interval (since the last McGuire Nuclear Station, Unit 1, Type A test) to a frequency encompassing the end of the McGuire Nuclear Station, Unit 1, End-of-Cycle 19 refueling outage (approximately 6 months beyond the present TS frequency). *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. 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. [?USGPO Galley End:?] First Standard The proposed amendment will not involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed extension to the Type A testing intervals cannot increase the probability of an accident previously evaluated since extension of the intervals is not a physical plant modification that could alter the probability of accident occurrence, nor is it an activity or modification by itself that could lead to equipment failure or accident initiation. The proposed extension to the Type A testing intervals does not result in a significant increase in the consequences of an accident as documented in NUREG-1493 [“Performance-Based Containment Leak-Test Program”, NUREG-1493, September 1995]. The NUREG notes that very few potential containment leakage paths are not identified by Type B and Type C tests. It concludes that reducing the Type A testing frequency to once per twenty years leads to an imperceptible increase in risk. McGuire [Nuclear Station, Unit 1 (McGuire Unit 1)] provides a high degree of assurance through testing and inspection that the containment will not degrade in a manner detectable only by Type A testing. Prior Type A tests for McGuire Unit 1 identified containment leakage within acceptance criteria, indicating a very leak tight containment. Inspections required by the ASME Code [American Society of Mechanical Engineers (ASME), Boiler and Pressure Vessel Code (Code)] are also performed in order to identify indications of containment degradation that could affect leak tightness. Separately, Type B and Type C testing, required by TS [Technical Specification] identify any containment opening from design penetrations, such as valves, that would otherwise be detected by a Type A test. These factors establish that an extension to the Type A test intervals will not represent a significant increase in the consequences of an accident. Second Standard The proposed amendments will not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed revisions to the McGuire TS add a one-time extension to the current interval for Type A testing. The current test interval of fifteen years, based on past performance, would be extended on a one-time basis to approximately fifteen and a half years from the last Type A test. The proposed extension to the Type A test interval does not create the possibility of a new or different type of accident since there are no physical changes being made to the plants and there are no changes to the operation of the plants that could introduce a new failure mode. Third Standard The proposed amendment will not involve a significant reduction in a margin of safety. The proposed revisions to the McGuire TS add a one-time extension to the current interval for Type A testing. The current test interval of fifteen years, based on past performance, would be extended on a one-time basis to approximately fifteen and a half years from the last Type A test. The proposed extension to Type A test intervals will not significantly reduce the margin of safety. The NUREG-1493 generic study of the effects of extending containment leakage testing intervals found that a twenty-year interval resulted in an imperceptible increase in risk to the public. NUREG-1493 found that, generically, the design containment leakage rate contributes about 0.1 percent of the overall risk and that decreasing the Type A testing frequency would have a minimal effect on this risk, since 95 percent of the Type A detectable leakage paths would already be detected by Type B and Type C testing. Similar proposed changes have been previously reviewed and approved by the NRC, and they are applicable to McGuire. Based upon the preceding discussion, Duke Energy Corporation [Duke Power Company, LLC] has concluded that the proposed amendments do not involve a significant hazards consideration. 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:* Ms. Lisa F. Vaughn, Associate General Counsel and Managing Attorney, Duke Energy Carolinas, LLC, 526 South Church Street, EC07H, Charlotte, NC 28202. *NRC Branch Chief:* Evangelos C. Marinos. Entergy Gulf States, Inc., and Entergy Operations, Inc., Docket No. 50-458, River Bend Station, Unit 1, West Feliciana Parish, Louisiana. *Date of amendment request:* November 15, 2007. *Description of amendment request:* The proposed change would relocate Surveillance Requirement
(SR)3.8.3.6 from the Technical Specifications
(TS)to a licensee-controlled document. SR 3.8.3.6 requires the Emergency Diesel Generator
(EDG)Fuel Oil Storage Tanks (FOSTs) to be drained, sediment removed, and cleaned on a 10-year interval. *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 FOSTs provide the storage for the EDG fuel oil, assuring an adequate volume is available for each EDG to operate for seven days in the event of a loss of offsite power concurrent with a loss of coolant accident. The relocation of the SR to drain and clean the FOSTs will not impact any of the previously analyzed accidents. Sediment in the tank, or failure to perform this SR, does not necessarily result in an inoperable storage tank. Fuel oil quantity and quality are assured by other TS SRs which remain unchanged. These SRs help ensure tank sediment is minimized and ensure that any degradation of the tank wall surface that results in a fuel oil volume reduction is detected and corrected in a timely manner. As a result, adequate controls exist to allow relocation of this preventative maintenance cleaning requirement to licensee controlled documents. 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 TS changes do not involve the addition or modification of any plant equipment. Also, the proposed change will not alter the design configuration, or method of operation of plant equipment beyond its normal functional capabilities. The proposed TS change does not create any new credible failure mechanisms, malfunctions or accident initiators. 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. The proposed change does not alter or exceed a design basis or safety limit. Diesel generator fuel oil quantity and quality will continue to be maintained within acceptable limits of the TS to assure the ability of the EDG to perform its intended function. Therefore, the proposed change does not involve a significant reduction in a margin of safety. [?USGPO Galley End:?] 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. Hilt. 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 amendment request:* December 5, 2007. *Description of amendment request:* The proposed amendment would change the Grand Gulf Nuclear Station, Unit 1 (GGNS), Technical Specification
(TS)5.6.5, “Core Operating Limits Report (COLR),” to add a reference to an analytical method that will be used to determine core operating limits. The new reference, NEDC-33383P, “GEXL97 Correlation Applicable to ATRIUM-10 Fuel,” will allow Entergy Operations, Inc. (Entergy) to use a Global Nuclear Fuel
(GNF)method to determine fuel assembly critical power of AREVA ATRIUM-10 fuel. GGNS currently operates with a full core of ATRIUM-10 fuel. Entergy plans to use the GEXL97 correlation for GGNS operating Cycle 17 currently scheduled to begin in the fall 2008. Additionally, an administrative change is proposed to an existing reference in TS 5.6.5. *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 are established each operating cycle in accordance with TS 3.2, “Power Distribution” and TS 5.6.5, “Core Operating Limits Report (COLR)”. These core operating limits ensure that the fuel design limits are not exceeded during any conditions of normal operation or in the event of any Anticipated Operational Occurrence (AOO). The methods used to determine the operating limits are those previously found acceptable by the NRC and listed in TS Section 5.6.5.b. A change to TS 5.6.5.b is requested to include an additional reference to the list of analytical methods. GGNS currently operates with a full core of AREVA ATRIUM-10 fuel but is scheduled to load GE14 fuel during the next refueling outage. GGNS plans to use the analysis methods of the new fuel vendor, GNF for the analysis of the mixed core. The GEXL97 correlation accurately models predicted core behavior and appropriately determines the overall critical power uncertainty of the method. In addition, the GEXL97 application range covers the range of expected operation of the ATRIUM-10 fuel during normal steady state and transient conditions in the GGNS reload cores. Although a depressurization transient could result in vessel pressures below the range of GEXL97, the transient would not threaten fuel cladding integrity, since the margin to the MCPR [minimum critical power ratio] safety limit increases with decreasing reactor pressure. Additionally, Entergy proposes an administrative change to the GESTAR-Il reference in TS 5.6.5.b. The administrative change does not alter any method of analysis as described in the NRC approved versions of GESTAR-II. The requested TS changes concern the use of analytical methods and do not involve any plant modifications or operational changes that could affect any postulated accident precursors or accident mitigation systems and do not introduce any new accident initiation mechanisms. The proposed changes have no effect on the type or amount of radiation released, and have no effect on predicted offsite doses in the event of an accident. Thus, the proposed change does not affect the probability of an accident previously evaluated nor does it increase the radiological consequences of any accident previously evaluated. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The proposed TS changes will not change the design function, reliability, performance, or operation of any plant systems, components, or structures. It does not create the possibility of a new failure mechanism, malfunction, or accident initiators not considered in the design and licensing bases. Plant operation will continue to be within the core operating limits that are established using NRC approved methods that are applicable to the GGNS design and the GGNS fuel. 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. The proposed change adds GEXL97 to the list of analytical methods in TS 5.6.5.b that can be used to determine core operating limits. Use of the GEXL97 correlation analytical method provides an equivalent level of protection as that currently provided. The administrative change does not alter any method of analysis as described in the NRC approved versions of GESTAR-II. The proposed change does not modify the safety limits or set points at which protective actions are initiated, and does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety. Therefore, the proposed change does not involve a significant reduction in a margin of safety. The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration. *Attorney for licensee:* 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 No. 50-353, Limerick Generating Station, Unit 2, Montgomery County, Pennsylvania. *Date of amendment request:* November 16, 2007. *Description of amendment request:* The proposed changes revise technical specification
(TS)action requirements associated with inoperable reactor coolant system
(RCS)leakage detection systems. A new TS action requirement is proposed that will address the inoperability of the drywell unit cooler condensate flow rate monitoring system concurrent with one other RCS leakage detection system, other than the primary containment atmosphere gaseous radioactivity monitoring system. This would relax the allowed out-of-service time for the specified combination of systems and is related to the current inoperability of the drywell unit cooler condensate flow rate monitoring system. The proposed changes would be effective for the remainder of the current operating cycle (Cycle 10), which is currently scheduled to end in the spring of 2009, or until the next shutdown of sufficient duration to allow for drywell unit cooler condensate flow rate monitoring system repairs, whichever comes first. *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 continue to maintain an acceptable level of reactor coolant system
(RCS)leakage detection instrumentation required to support plant operations. The level of RCS leakage detection capability inherent with the proposed changes will continue to provide acceptable early warning detection of potential RCS pressure boundary degradation. The proposed changes do not impact the physical configuration or design function of plant structures, systems, or components
(SSCs)or the manner in which SSCs are operated, modified, tested, or inspected [with the exception of an increase in allowed out-of-service time for a concurrent inoperability of the drywell unit cooler condensate flow rate monitoring system and another specified RCS leakage detection system]. The proposed changes do not impact the initiators or assumptions of analyzed events, nor do they impact mitigation of accidents or transient events. 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 only affect systems associated with the detection of leakage resulting from the degradation of the RCS pressure boundary. The proposed changes do not alter plant configuration or require that new plant equipment be installed. The RCS leakage detection systems will continue to function as designed in all modes of operation. No new accident type is created as a result of the proposed changes. No new failure mode for any equipment is created. The proposed changes do not alter assumptions made about accidents previously evaluated. 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 proposed changes do not involve any physical changes to plant SSCs or the manner in which SSCs are operated, modified, tested, or inspected. The proposed changes do not involve a change to any safety limits, limiting safety system settings, limiting conditions of operation, or design parameters for any SSC. The proposed changes do not impact any safety analysis assumptions and do not involve a change in initial conditions, system response times, or other parameters affecting an accident analysis. 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, with changes as noted above, 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:* J. Bradley Fewell, Esquire, Associate General Counsel, Exelon Generation Company, LLC, 4300 Winfield Road, Warrenville, IL 60555. *NRC Branch Chief:* Harold K. Chernoff. Exelon Generation Company, LLC, Docket Nos. 50-254 and 50-265, Quad Cities Nuclear Power Station, Units 1 and 2, Rock Island County, Illinois. *Date of amendment request:* October 9, 2007. *Description of amendment request:* A change is proposed to the technical specifications
(TS)of Quad Cities Nuclear Power Station (QCNPS), Units 1 and 2, consistent with Technical Specifications Task Force
(TSTF)Change Traveler TSTF-423 to the standard TSs for boiling water reactor plants, to allow, for some systems, entry into hot shutdown rather than cold shutdown to repair equipment, if risk is assessed and managed consistent with the program in place for complying with the requirements of Title 10 of the Code of Federal Regulations (10 CFR) Section 50.65(a)(4). Changes proposed herein will be made to the QCNPS, Units 1 and 2, TSs for selected required action end states providing this allowance. The licensee reviewed the proposed no significant hazards consideration
(NSHC)determination published in the **Federal Register** on March 23, 2007 (71 FR 14726) and concluded that it is applicable to QCNPS, Units 1 and 2. The licensee incorporated the proposed determination by reference to satisfy the requirements of 10 CFR 50.91(a). *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), an analysis of the issue of NSHC is presented below: 1. The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated. The proposed change allows a change to certain required end states when the TS Completion Times for remaining in power operation will be exceeded. Most of the requested technical specification
(TS)changes are to permit an end state of hot shutdown (Mode 3) rather than an end state of cold shutdown (Mode 4) contained in the current TS. The request was limited to:
(1)Those end states where entry into the shutdown mode is for a short interval,
(2)entry is initiated by inoperability of a single train of equipment or a restriction on a plant operational parameter, unless otherwise stated in the applicable technical specification, and
(3)the primary purpose is to correct the initiating condition and return to power operation as soon as is practical. Risk insights from both the qualitative and quantitative risk assessments were used in specific TS assessments. Such assessments are documented in Section 6 of GE NEDC-32988, Revision 2, ``Technical Justification to Support Risk Informed Modification to Selected Required Action End States for BWR Plants.'' They provide an integrated discussion of deterministic and probabilistic issues, focusing on specific technical specifications, which are used to support the proposed TS end state and associated restrictions. The staff finds that the risk insights support the conclusions of the specific TS assessments. Therefore, the probability of an accident previously evaluated is not significantly increased, if at all. The consequences of an accident after adopting proposed TSTF-423, are no different than the consequences of an accident prior to adopting TSTF-423. Therefore, the consequences of an accident previously evaluated are not significantly affected by this change. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident From Any Previously Evaluated. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). If risk is assessed and managed, allowing a change to certain required end states when the TS Completion Times for remaining in power operation are exceeded, i.e., entry into hot shutdown rather than cold shutdown to repair equipment, 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 this change and the commitment by the licensee to adhere to the guidance in TSTF-IG-05-02, Implementation Guidance for TSTF-423, Revision 0, “Technical Specifications End States, NEDC-32988-A,” will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from an accident previously evaluated. 3. The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety. The proposed change allows, for some systems, entry into hot shutdown rather than cold shutdown to repair equipment, if risk is assessed and managed. The BWROG's [Boiling Water Reactor Owners Group's] risk assessment approach is comprehensive and follows staff guidance as documented in RGs [Regulatory Guides] 1.174 and 1.177. In addition, the analyses show that the criteria of the three-tiered approach for allowing TS changes are met. The risk impact of the proposed TS changes was assessed following the three-tiered approach recommended in RG 1.177. A risk assessment was performed to justify the proposed TS changes. The net change to the margin of safety is insignificant. Therefore, this change does not involve a significant reduction in a margin of safety. 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. Luminant Generation Company LLC, Docket Nos. 50-445 and 50-446, Comanche Peak Steam Electric Station, Units 1 and 2, Somervell County, Texas *Date of amendment request:* November 29, 2007. *Brief description of amendments:* Revision to Technical Specification
(TS)3.6.7, (“Spray Additive System,” to allow modifications to the facility potentially required to comply with U.S. Nuclear Regulatory Commission
(NRC)Generic Letter 2004-02, “Potential Impact of Debris Blockage on Emergency Recirculation during Design Basis Accident 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. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated? Response: No [?USGPO Galley End:?] The proposed change[s] [do] not impact the initiation or probability of occurrence of any accident. The accidents evaluated in the Final Safety Analysis report
(FSAR)that could be affected by this proposed change are those involving the pressurization of the containment and those involving recirculation of fluid within the Emergency Core Cooling System
(ECCS)or the Containment Spray System (e.g., loss of coolant accidents (LOCAs)). The change to a minimum pH [potential of Hydrogen] of 7.1 will not result in a significant increase in the radiological consequences of a LOCA as-described below. The equilibrium spray pH during the recirculation phase resulting from this change will be greater than or equal to 7.1. The pH range for the spray will be bounded by the water spray solution which is borated water with a maximum of 2600 parts per million
(ppm)boron buffered to a final spray solution pH much less than the 10.5 as described in the current FSAR Section 3.11(B) for the postulated spray solution environment. The maximum pH is the limiting parameter for equipment qualification. Since the resulting pH level will be closer to neutral using the lower limit of 7.1, post-LOCA corrosion of containment components will not be increased. Post-LOCA hydrogen generation will be reduced. There will not be an adverse radiation dose effect on any safety-related equipment. Thus, the potential for failures of the ECCS or safety-related equipment following a LOCA will not be increased as a result of the proposed change. This modification affects the Containment Spray System which is intended to respond to and mitigate the effects of a LOCA. The Containment Spray System will continue to function in a manner consistent with the plant design basis. There will be no degradation in the performance of nor an increase in the number of challenges to equipment assumed to function during an accident situation. Therefore, these Technical Specification
(TS)revisions do not affect the probability of any event initiators. There will be no adverse changes to normal plant operating parameters, Engineered Safety Features
(ESF)actuation setpoints, or accident mitigation capabilities. The proposed change allows the Spray Additive System currently used to mitigate the consequences of an accident to maintain the equilibrium sump pH at greater than or equal to 7.1 to minimize chloride-induced stress corrosion cracking in austenitic stainless components important to safety located inside containment. Therefore, the proposed changes will not increase the probability of an accident or malfunction of equipment important to safety previously evaluated in the FSAR. The offsite and control room doses will continue to meet the requirements of [Title 10 of the Code of Federal Regulations (10 CFR) part 100] 10 CFR 100, 10 CFR 50 Appendix A [General Design Criterion] GDC 19, [Standard Review Plan] SRP 15.6.5.11, and SRP 6.4.11. The proposed new pH limit will provide satisfactory retention of iodine in the sump water, as well as provide adequate pH control to minimize the potential of chloride-induced stress corrosion cracking of austenitic stainless steel components. 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 change to the revised Surveillance for the Containment Spray Additive System provides for a required minimum equilibrium pH in containment post accident. There are no electrical or mechanical components being added whose failure could prevent the system from functioning. No new accident scenarios, transient precursors, or limiting single failures are introduced as a result of the proposed changes. There will be no adverse effect or challenges imposed on any safety-related system as a result of this proposed change. The amount of sodium hydroxide
(NaOH)will provide a minimum equilibrium sump pH of 7.1 following mixing. Therefore, the possibility of a new or different type of accident is not created. There are no changes which would cause the malfunction of safety-related equipment, assumed to be operable in the accident analyses, as a result of the proposed Technical Specification changes. The possibility of a malfunction of safety-related equipment with a different result is not created. Therefore, the proposed change[s] [do] not create the possibility of a new or different kind of accident from any previously evaluated. 3. Do the proposed changes involve a significant reduction in a margin of safety? *Response:* No The only function of the chemical additive system is to provide pH control of the post-accident containment recirculation sump water, since the borated water from the Refueling Water Storage Tank
(RWST)used as the containment spray pump suction source during injection is sufficient to remove iodine from the containment atmosphere following a LOCA. The net effect on the pH control function of reducing the amount of buffer is that the equilibrium sump pH will be lowered to a minimum of 7.1. There will be no change to the current Technical Specification acceptance limits on RWST volume and boron concentration. The resulting equilibrium sump pH level from this change will be closer to neutral; therefore, the post-LOCA corrosion of containment components will not be increased (i.e., would be reduced). Because the long term pH will be maintained greater than or equal to 7.1, margin to minimize the potential for stress corrosion cracking is maintained. The radiological analysis, as discussed in the technical analysis above, is shown not to be impacted. There will be no change to the [departure from nucleate boiling ratio] DNBR Correlation Limit, the design DNBR limits, or the safety analysis DNBR limits discussed in Bases Section 2.1.1. There will be no effect on the manner in which Safety Limits or Limiting Safety System Settings are determined nor will there be any effect on those plant systems necessary to assure the accomplishment of protection functions. There will be no adverse impact on Departure of Nucleate Boiling Ratio limits, [heat flux hot channel factor] F Q , [nuclear enthalpy rise hot channel factor] F-delta-H, LOCA peak cladding temperature, peak local power density, or any other margin of safety. Therefore the proposed change[s] [do] not involve a 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:* Timothy P. Matthews, Esq., Morgan, Lewis and Bockius, 1800 M Street, NW., Washington, DC 20036. *NRC Branch Chief:* Thomas G. Hiltz. Pacific Gas and Electric Company, Docket Nos. 50-275 and 50-323, Diablo Canyon Nuclear Power Plant, Unit Nos. 1 and 2, San Luis Obispo County, California. *Date of amendment requests:* October 2, 2007. *Description of amendment requests:* The proposed amendments would revise Technical Specification
(TS)3.5.4, “Refueling Water Storage Tank (RWST),” Surveillance Requirement
(SR)3.5.4.2, to increase the minimum required borated water volume from “≥ [greater than or equal to] 400,000 gallons (81.5% indicated level)” to “≥ 455,300 gallons (93.6% level),” to reflect the new sump design required to comply with U.S. Nuclear Regulatory Commission
(NRC)Generic Letter 2004-02, “Potential Impact of Debris Blockage on Emergency Recirculation during Design-Basis Accident 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. [Do] the proposed change[s] involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. The proposed change[s] [revise] the minimum RWST borated water volume. The RWST borated water volume is not an initiator of any accident previously evaluated. As a result, the probability of an accident previously evaluated is not affected. The proposed change[s] [do] not alter or prevent the ability of structures, systems, and components from performing their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The effect on containment flood level, equipment qualification, and containment sump pH remain within the limits assumed in the design and accident analyses. The proposed change[s] [do] not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. Further, the proposed change[s] [do] not increase the types or amounts of radioactive effluent that may be released offsite, nor significantly increase individual or cumulative occupational/public radiation exposures. The proposed change[s] are consistent with the safety analysis assumptions and resultant consequences. Therefore, the proposed change[s] [do] not involve a significant increase in the probability or consequences of an accident previously evaluated. 2. [Do] the proposed change[s] create the possibility of a new or different kind of accident from any accident previously evaluated? *Response:* No. The change[s] [do] not involve a physical alteration of the plant (i.e., no new or different components or physical changes are involved with this change) or a change in the methods governing normal plant operation. The change[s] [do] not alter any assumptions made in the safety analysis. Therefore, the proposed change[s] will not create the possibility of a new or different kind of accident from any accident previously evaluated. 3. [Do] the proposed change[s] involve a significant reduction in a margin of safety? *Response:* No. The proposed change[s] to revise the required RWST minimum borated water volume [do] not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by [these] change[s]. The proposed change[s] will not result in plant operation in a configuration outside of the design basis. Therefore, the proposed change[s] [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 requests involve no significant hazards consideration. *Attorney for licensee:* Jennifer Post, Esq., Pacific Gas and Electric Company, P.O. Box 7442, San Francisco, California 94120. *NRC Branch Chief:* Thomas G. Hiltz. Pacific Gas and Electric Co., Docket No. 50-133, Humboldt Bay Power Plant (HBPP), Unit 3 Humboldt County, California. *Date of amendment request:* November 5, 2007. *Description of amendment request:* The licensee has proposed amending the technical specifications
(TS)to delete many operational and administrative requirements upon transfer of spent nuclear fuel assemblies and fuel fragment containers from the Spent Fuel Pool
(SFP)to the Humboldt Bay Independent Spent Fuel Storage Installation (ISFSI). Some TS requirements will be relocated to the HBPP Quality Assurance Plan. 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 change involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. The proposed changes reflect the transfer of spent fuel from the Spent Fuel Pool to the Humboldt Bay
(HB)Independent Spent Fuel Storage Installation. Design basis accidents related to the SFP are discussed in the Humboldt Bay Power Plant Unit 3 Defueled Safety Analysis Report (DSAR). These postulated accidents are predicated on spent fuel being stored in the SFP. With the removal of the spent fuel from the SFP, there are no important-to-safety systems, structures or components required to function or to be monitored. In addition, there are no remaining credible accidents involving spent fuel or the SFP that require actions of a Certified Fuel Handler or Noncertified Fuel Handler to prevent occurrence or to mitigate consequences. The proposed change to the Design Features section of the Technical Specifications
(TS)clarifies that the spent fuel is being stored in dry casks within an ISFSI. The probability or consequences of accidents at the ISFSI are evaluated in the HB ISFSI Final Safety Analysis Report
(FSAR)and are independent of the accidents evaluated in the HBPP Unit 3 DSAR. Therefore, the proposed changes will not involve a significant increase in the probability or consequences of an accident previously evaluated.
(2)Does the change create the possibility of a new or different kind of accident from any accident evaluated? *Response:* No. The proposed changes reflect the reduced operational risks as a result of the spent fuel being transferred to dry casks within an ISFSI. The proposed changes do not modify any systems, structures or components. The plant conditions for which the HBPP Unit 3 DSAR design basis accidents relating to spent fuel and the SFP have been evaluated are no longer applicable. The aforementioned proposed changes do not affect any of the parameters or conditions that could contribute to the initiation of an accident. Design basis accidents associated with the dry cask storage of spent fuel are already considered in the HB ISFSI FSAR. No new accident scenarios are created as a result of deleting nonapplicable operational and administrative requirements. Therefore, the proposed changes will not create the possibility of a new or different kind of accident from those previously evaluated.
(3)Does the change involve a significant reduction in a margin of safety? *Response:* No. The proposed changes reflect the reduced operational risks as a result of the spent fuel being transferred to dry casks within an ISFSI. The design basis and accident assumptions within the HBPP Unit 3 DSAR and the TS relating to spent fuel are no longer applicable. The proposed changes do not affect remaining plant operations, nor structures, systems, or components supporting decommissioning activities. In addition, the proposed changes do not result in a change in initial conditions, system response time, or in any other parameter affecting the course of a decommissioning activity accident analysis. Therefore, the proposed changes will 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 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:* Ms. Jennifer K. Post, Pacific Gas and Electric Company, 77 Beale Street, B30A, San Francisco, CA. *NRC Branch Chief:* Andrew Persinko. Union Electric Company, Docket No. 50-483, Callaway Plant, Unit 1, Callaway County, Missouri. *Date of amendment request:* October 31, 2007. *Description of amendment request:* The amendment would revise Technical Specification
(TS)3.8.1, “Essential Service Water System (ESW),” and TS 3.8.1, “AC [Alternating Current] Sources—Operating.” A note would be added to Condition A, one ESW train inoperable, of TS 3.8.1, and Condition B, one diesel generator
(DG)inoperable, of TS 3.8.1 would be revised. The revisions are to allow a one-time completion time extension from 72 hours to 14 days to support a planned replacement of ESW piping prior to December 31, 2008, in the licensee's fall 2008 refueling outage. *Basis for proposed no significant hazards consideration determination:* As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below: 1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated? *Response:* No. [The only change to the plant is that existing ESW piping will be replaced in the fall 2008 refueling outage. There are no other changes to the plant and no hardware or equipment will be added to the plant. This replacement is to address localized degradation of the ESW piping due to microbiologically induced corrosion.] Overall protection system performance will remain within the bounds of the previously performed accident analyses since no hardware changes are proposed to the protection systems. The same reactor trip system
(RTS)and engineered safety feature actuation system (ESFAS) instrumentation will continue to be used. The protection systems will continue to function in a manner consistent with the plant design basis. The use of polyethylene
(PE)piping [(i.e., replacing existing ESW piping by PE piping)] in the ESW system in accordance with ASME [American Society of Mechanical Engineers Boiler and Pressure Vessel Code] Code Case N-755, with justified materials and design exceptions as noted in [the licensee's letter dated August 30, 2007 (ULNRC-05434), which requested relief from the ASME Code to replace the ESW piping by the PE piping], will [have the PE piping that replaces the ESW piping] provide an acceptable level of quality and safety. There will be no changes to the essential service water
(ESW)system or [the] ultimate heat sink
(UHS)surveillance and operating limits. [The licensee's letter dated August 30, 2007,] demonstrates the acceptability of using the PE piping in this buried ASME Class 3 application [(i.e., replacing existing ESW piping)]. The proposed changes will not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, and configurations of the facility or the manner in which the plant is operated and maintained. The proposed changes will not alter or prevent the ability of structures, systems, and components
(SSCs)from performing their intended [safety] functions to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed changes do not affect the way in which safety-related systems perform their [safety] functions. All accident analysis acceptance criteria will continue to be met with the proposed changes. The proposed changes will not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. The proposed changes will not alter any assumptions or change any mitigation actions in the radiological consequence evaluations in the FSAR [Final Safety Analysis Report for the Callaway Plant]. The applicable radiological dose acceptance criteria [is unchanged] and will continue to be met. Therefore, the proposed changes do 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. There are no proposed changes in the method by which any safety-related plant SSC performs its safety function. [The proposed changes will not affect the performance of the ESW piping in terms of providing mitigation of design basis accidents per the FSAR accident analyses.] The proposed changes will not affect the normal method of plant operation or change any operating parameters. No equipment performance requirements will be affected. The proposed changes will not alter any assumptions made in the safety analyses. No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures will be introduced as a result of this amendment. There will be no adverse effect or challenges imposed on any safety-related system as a result of this amendment. The proposed amendment will not alter the design or performance of the 7300 Process Protection System, Nuclear Instrumentation System, or Solid State Protection System used in the plant protection systems. Therefore, 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. There will be no effect on those plant systems necessary to assure the accomplishment of protection functions. There will be no impact on the overpower limit, departure from nucleate boiling ratio
(DNBR)limits, heat flux hot channel factor (F <sup>Q</sup> ), nuclear enthalpy rise hot channel factor (F [delta] H), loss of coolant accident peak cladding temperature (LOCA PCT), peak local power density, or any other margin of safety. The applicable radiological dose consequence acceptance criteria will continue to be met. [The proposed changes will not affect the performance of the ESW piping in terms of providing mitigation of design basis accidents per the FSAR accident analyses.] The proposed changes do not eliminate any surveillances or alter the frequency of [any] surveillances required by the Technical Specifications. None of the acceptance criteria for any accident analyses will be changed. The proposed changes will have no impact on the radiological consequences of a design basis accident. 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:* John O'Neill, Esq., Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, NW., Washington, DC 20037. *NRC Branch Chief:* Thomas G. Hiltz. Previously Published Notices of Consideration of Issuance of Amendments to Facility Operating Licenses, Proposed no Significant Hazards Consideration Determination, and Opportunity for a Hearing The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration. For details, see the individual notice in the **Federal Register** on the day and page cited. This notice does not extend the notice period of the original notice. Florida Power and Light Company, Docket Nos. 50-250 and 50-251, Turkey Point Plant, Units 3 and 4, Miami-Dade County, Florida. *Date of application for amendment:* November 12, 2007. *Brief description of amendment:* Use of alternate method of monitoring rod position for a control rod or shutdown rod with an inoperable rod position indicator. *Date of publication of individual notice in the* Federal Register : November 28, 2007 (72 FR 67323). *Expiration date of individual notice:* December 28, 2007 (Public comments) and January 28, 2008 (Hearing requests). Notice of Issuance of amendments to Facility Operating Licenses During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment. Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the **Federal Register** as indicated. Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(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.* Duke Power Company LLC, Docket Nos. 50-269, 50-270, and 50-287, Oconee Nuclear Station, Units 1, 2, and 3, Oconee County, South Carolina. *Date of application of amendments:* January 31, 2007. *Brief description of amendments:* The amendments revised the Technical Specifications to remove requirements that are no longer applicable due to the completion of the control room intake/booster fan modifications. *Date of Issuance:* December 11, 2007. *Effective date:* As of the date of issuance and shall be implemented within 30 days from the date of issuance. *Amendment Nos.:* 358, 360, and 359. *Renewed Facility Operating License Nos. DPR-38, DPR-47, and DPR-55:* Amendments revised the licenses and the technical specifications. *Date of initial notice in* Federal Register : October 9, 2007 (72 FR 57353) The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 11, 2007. *No significant hazards consideration comments received:* No. Energy Northwest, Docket No. 50-397, Columbia Generating Station, Benton County, Washington. *Date of application for amendment:* July 30, 2007, as supplemented by letter dated November 6, 2007. *Brief description of amendment:* The changes revise Technical Specification
(TS)1.4, “Frequency,” TS 3.1.5, “Control Rod Scram Accumulators,” TS 3.4.1, “Recirculation Loops Operating,” TS 3.5.1, “ECCS [Emergency Core Cooling System]—Operating,” TS 3.5.2, “ECCS—Shutdown,” TS 3.7.1, “Standby Service Water
(SW)System and Ultimate Heat Sink (UHS),” TS 3.8.1, “AC [Alternating Current] Sources—Operating,” TS 3.8.2, “AC Sources—Shutdown,” and TS 5.5.6, “In-service Testing Program.” The changes include updates to adopt approved TS Task Force
(TSTF)Travelers 284, Revision 3, “Add `Met' vs. `Perform' to Specification 1.4, Frequency,” TSTF-479, Revision 0, “Changes to Reflect Revision of 10 CFR 50.55a,” and TSTF-485, Revision 0, “Correct Example 1.4-1,” and TSTF-497, Revision 0, “Limit Inservice Testing Program SR [Surveillance Requirement] 3.0.2 Application to Frequencies of 2 Years or Less.” *Date of issuance:* December 13, 2007. *Effective date:* As of its date of issuance and shall be implemented within 90 days from the date of issuance. *Amendment No.:* 205. *Facility Operating License No. NPF-21:* The amendment revised the Facility Operating License and Technical Specifications. *Date of initial notice in* Federal Register : August 28, 2007 (72 FR 49572). The supplement dated November 6, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as initially published in the **Federal Register** . The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 13, 2007. *No significant hazards consideration comments received:* No. Entergy Gulf States, Inc., and Entergy Operations, Inc., Docket No. 50-458, River Bend Station, Unit 1, West Feliciana Parish, Louisiana. *Date of amendment request:* July 2, 2007. *Brief description of amendment:* The amendment modified River Bend Station, Unit 1, technical specifications
(TSs)requirements for MODE change limitations in Limiting Condition for Operation 3.0.4 and Surveillance Requirement 3.0.4. The TS changes are consistent with Revision 9 of NRC-approved Industry TS Task Force
(TSTF)Standard TS Change Traveler, TSTF-359, “Increase Flexibility in MODE Restraints.” In addition, the amendment also changed 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.” *Date of issuance:* December 6, 2007. *Effective date:* As of the date of issuance and shall be implemented 120 days from the date of issuance. *Amendment No.:* 156. *Facility Operating License No. NPF-47:* The amendment revised the Facility Operating License and Technical Specifications. *Date of initial notice in* Federal Register : September 11, 2007 (72 FR 51856). The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 6, 2007. *No significant hazards consideration comments received:* No. Indiana Michigan Power Company, Docket Nos. 50-315, Donald C. Cook Nuclear Plant, Units 1 and 2 (DCCNP-1 and DCCNP-2), Berrien County, Michigan. *Date of application for amendments:* September 15, 2006, as supplemented on July 25 and October 9, 2007. *Brief description of amendments:* The amendments revised the DCCNP-1 and DCCNP-2 Technical Specifications
(TS)to allow certain functions in the reactor protection system and engineered safety feature actuation system instrumentation which have installed bypass test capability to be tested in bypass. The licensee's request to correct the administrative error will be reviewed and resolved by separate correspondence. [?USGPO Galley End:?] *Date of issuance:* December 17, 2007. *Effective date:* As of the date of issuance, and shall be implemented within 45 days. *Amendment No.:* 300, 283. *Facility Operating License Nos. DPR-58 and DPR-74:* Amendments revise the License Page and Technical Specifications. *Date of initial notice in* Federal Register *:* November 21, 2006 (71 FR 67396) The supplemental letters contained clarifying information, 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 amendment is contained in a safety evaluation dated December 17, 2007. *No significant hazards consideration comments received:* No. Luminant Generation Company LLC, Docket Nos. 50-445 and 50-446, Comanche Peak Steam Electric Station, Unit Nos. 1 and 2, Somervell County, Texas. *Date of amendment request:* December 19, 2006. *Brief description of amendments:* The amendments revised Technical Specification 5.5.16, “Containment Leakage Rate Testing Program,” for consistency with the requirements of paragraph 50.55a(g)(4) of Title 10 of the Code of Federal Regulations for components classified as Code Class CC. *Date of issuance:* December 13, 2007. *Effective date:* As of the date of issuance and shall be implemented within 120 days from the date of issuance. *Amendment Nos.:* Unit 1-141; Unit 2-141. *Facility Operating License Nos. NPF-87 and NPF-89:* The amendments revised the Facility Operating Licenses and Technical Specifications. *Date of initial notice in* Federal Register *:* May 8, 2007 (72 FR 26179). The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 13, 2007. *No significant hazards consideration comments received:* No. Nebraska Public Power District, Docket No. 50-298, Cooper Nuclear Station, Nemaha County, Nebraska *Date of amendment request:* August 16, 2007, as supplemented by letter date November 5, 2007. *Brief description of amendment:* The amendment revised Technical Specification 5.5.6, “Inservice Testing Program,” to allow a one-time extension of the 5-year frequency requirement for setpoint testing of safety valve MS-RV-70ARV. *Date of issuance:* December 4, 2007. *Effective date:* As of the date of issuance and shall be implemented within 30 days of issuance. *Amendment No.:* 228. *Facility Operating License No. DPR-46:* Amendment revised the Facility Operating License and Technical Specifications. *Date of initial notice in* Federal Register *:* September 25, 2007 (72 FR 54476). The supplement dated November 5, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as initially published in the **Federal Register** . The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 4, 2007. *No significant hazards consideration comments received:* No. STP Nuclear Operating Company, Docket Nos. 50-498 and 50-499, South Texas Project, Units 1 and 2, Matagorda County, Texas *Date of amendment request:* February 28, 2007, as supplemented by letter dated May 22, 2007. *Brief description of amendments:* The amendments revise the language in the Technical Specifications to conform to the licensing basis as established by Amendment Nos. 87 and 74, for Units 1 and 2, respectively, dated May 27, 1997. *Date of issuance:* December 6, 2007. *Effective date:* As of the date of issuance and shall be implemented within 60 days of issuance. *Amendment Nos.:* Unit 1-181; Unit 2-168. *Facility Operating License Nos. NPF-76 and NPF-80:* The amendments revised the Facility Operating Licenses and Technical Specifications. *Date of initial notice in* Federal Register *:* May 22, 2007 (72 FR 28723). The supplement dated May 22, 2007, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the **Federal Register** . The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 6, 2007. *No significant hazards consideration comments received:* No. Nuclear Management Company, LLC, Docket Nos. 50-282 and 50-306, Prairie Island Nuclear Generating Plant (PINGP), Units 1 and 2, Goodhue County, Minnesota. *Date of application for amendments:* December 14, 2006, supplemented by letter dated November 13, 2007. *Brief description of amendments:* The amendments revise the sump debris interceptor nomenclature in PINGP Unit 1 and Unit 2 Technical Specifications
(TS)3.5.2 to more clearly reflect the configuration of the new Emergency Core Cooling System sump strainers that were installed to address Generic Letter 2004-02, “Potential Impact of Debris Blockage on Emergency Recirculation During Design Basis Accidents at Pressurized-Water Reactors.” The amendments also revise the required Refueling Water Storage Tank
(RWST)water level in TS 3.5.4 to reflect the administratively controlled water inventory in the RWST. *Date of issuance:* December 14, 2007. *Effective date:* As of the date of issuance and shall be implemented within 90 days. *Amendment Nos.:* 182/172. *Facility Operating License Nos. DPR-42 and DPR-60:* Amendments revised the Facility Operations License and Technical Specifications. *Date of initial notice in* Federal Register *:* February 27, 2007 (72 FR 8804) 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 December 14, 2007. *No significant hazards consideration comments received:* No. Omaha Public Power District, Docket No. 50-285, Fort Calhoun Station, Unit No. 1, Washington County, Nebraska. *Date of amendment request:* July 31, 2007. *Brief description of amendment:* The amendment revises Technical Specification
(TS)2.7(1), (Electrical Systems—Minimum Requirements,” TS 2.7(2), (“Electrical Systems—Modification of Minimum Requirements,” and TS 3.7(5), “Emergency Power System Periodic Tests—Required Safety Related Inverters.” The licensee is adding two safety-related swing inverters to the 120 Volt alternating current instrument buses. The TS changes reflect modifications made to the plant and are needed to take advantage of the additional operational flexibility the swing inverters will provide. *Date of issuance:* December 17, 2007. *Effective date:* As of its date of issuance and shall be implemented within 90 days from the date of issuance. *Amendment No.:* 251. *Renewed Facility Operating License No. DPR-40:* The amendment revised the Technical Specifications. *Date of initial notice in* Federal Register *:* August 28, 2007 (72 FR 49582). The Commission's related evaluation of the amendment is contained in a safety evaluation dated December 17, 2007. *No significant hazards consideration comments received:* No. Dated at Rockville, Maryland, this 21st day of December, 2007. For The Nuclear Regulatory Commission. Catherine Haney, Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. E7-25416 Filed 12-28-07; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Security Officer Attentiveness AGENCY: Nuclear Regulatory Commission. ACTION: Notice of issuance. SUMMARY: All holders of operating licenses for nuclear power reactors, except those who have permanently ceased operation and have certified that fuel has been removed from the reactor vessel, and Category I fuel facilities. The contents of this bulletin are for information to Category III fuel facilities, independent spent fuel storage installations, conversion facilities and gaseous diffusion plants. The U.S. Nuclear Regulatory Commission
(NRC)is issuing this bulletin to achieve the following three objectives: 1. The agency is notifying addressees about the NRC staff's need for information associated with licensee security program administrative and management controls as a result of security personnel inattentiveness, especially involving complicity, and related concerns with the behavior observation program (BOP). The information is needed to determine if further regulatory action is warranted, if the necessary inspection program needs to be enhanced, or if additional assessment of security program implementation is needed. 2. The NRC seeks to obtain information on licensee administrative and managerial controls to deter and address inattentiveness and complicity among licensee security personnel including contractors and subcontractors. 3. This bulletin requires that addressees provide a written response to the NRC in accordance with Title 10 of the *Code of Federal Regulations* (10 CFR), Section 50.54(f) or 10 CFR 70.22(d). This **Federal Register** notice is available through the NRC's Agencywide Documents Access and Management System (ADAMS) under accession number ML073480342. DATES: The bulletin was issued on December 12, 2007. ADDRESSES: Not applicable. FOR FURTHER INFORMATION CONTACT: Timothy S. McCune at 301-415-6474 or by email *tsm5@nrc.gov* , Kevin Ramsey at 301-415-3123 or by e-mail *kmr@nrc.gov* , or Merrilee Banic at 301-415-2771 or email *mjb@nrc.gov* . SUPPLEMENTARY INFORMATION: NRC Bulletin 2007-01 may be examined, and/or copied for a fee, at the NRC's Public Document Room at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, *http://www.nrc.gov/NRC/ADAMS/index.html* . The ADAMS number for the bulletin is ML051740058. If you do not have access to ADAMS or if you have problems in accessing the documents in ADAMS, contact the NRC Public Document Room
(PDR)reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail to *pdr@nrc.gov* . Dated at Rockville, Maryland, this 19th day of December 2007. For the Nuclear Regulatory Commission. Martin C. Murphy, Chief, Generic Communications Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation. [FR Doc. E7-25398 Filed 12-28-07; 8:45 am] BILLING CODE 7590-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28082; 812-13411] Main Street Capital Corporation, et al.; Notice of Application December 21, 2007. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Notice of an application for an order under sections 6(c), 57(c) and 57(i) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 18(a), 23(a), 23(b), 57(a)(1), 57(a)(2), 61(a) and 63 of the Act, and under sections 57(a)(4) and 57(i) of the Act and rule 17d-1 under the Act permitting certain joint transactions otherwise prohibited by section 57(a)(4) of the Act. Summary of the Application: Applicants, Main Street Capital Corporation (the “Company”), Main Street Mezzanine Fund, LP (“MSMF”), Main Street Capital Partners, LLC (the “Investment Adviser”), and Main Street Mezzanine Management, LLC (the “General Partner”), request an order to permit:
(1)A business development company and its wholly-owned subsidiaries to engage in certain transactions that otherwise would be permitted if the business development company and its subsidiaries were one company,
(2)the business development company to adhere to a modified asset coverage requirement, and
(3)the business development company to issue restricted shares of its common stock under the terms of its employee and director compensation plans. Filing Dates: The application was filed on July 27, 2007, and amended on December 4, 2007. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice. Hearing or Notification of Hearing: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on January 15, 2008, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary. ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants, c/o Vincent D. Foster, Chief Executive Officer, Main Street Capital Corporation, 1300 Post Oak Boulevard, Suite 800, Houston, TX 77056. FOR FURTHER INFORMATION CONTACT: Jean E. Minarick, Senior Counsel, at
(202)551-6811, or Nadya B. Roytblat, Assistant Director, at
(202)551-6821, (Division of Investment Management, Office of Investment Company Regulation). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Desk, 100 F Street, NE., Washington, DC 20549-0102 (tel. 202-551-5850). Applicants' Representations 1. The Company, a Maryland corporation organized in March 2007, is an internally managed, non-diversified, closed-end investment company that has elected to be regulated as a business development company (“BDC”) under the Act. 1 The Company will operate as a specialty investment company focused on providing customized financing solutions to companies with annual revenues between $10 million and $100 million. The Company's investment objective is to maximize total return by generating current income from debt investments and realizing capital appreciation from equity-related investments. The Company's investments generally will range in size from $2 million to $15 million. Shares of the Company's common stock are traded on The NASDAQ Global Select Market under the symbol “MAIN.” After the IPO which was completed in October 2007, there were 8,826,726 shares of the Company's common stock outstanding. As of October 2, 2007, the Company had 13 employees. 1 Section 2(a)(48) defines a BDC to be any closed-end investment company that operates for the purpose of making investments in securities described in sections 55(a)(1) through 55(a)(3) of the Act and makes available significant managerial assistance with respect to the issuers of such securities. 2. The Company has a six member board of directors (the “Board”) of whom two are “interested persons” of the Company within the meaning of section 2(a)(19) of the Act and four are non-interested persons (“Non-interested Directors”). The Company has four directors who are neither employees nor officers of the Company (the “Non-Employee Directors”). 3. MSMF, a Delaware limited partnership and an indirect wholly-owned subsidiary of the Company, is a small business investment company (“SBIC”) licensed under the Small Business Administration (“SBA”) to operate under the Small Business Investment Act of 1958 (“SBIA”). MSMF relies on section 3(c)(7) of the Act. The General Partner, which is a wholly-owned subsidiary of the Company, owns a 0.7% general partnership interest in MSMF. The Investment Adviser, a Delaware limited liability company and a wholly-owned subsidiary of the Company, is the investment adviser to MSMF. 4. The Company may in the future establish additional wholly-owned subsidiaries (together with MSMF, the “Subsidiaries”), including Subsidiaries licensed by the SBA to operate under the SBIA as SBICs (“SBIC Subsidiaries”). 5. The Company believes that its successful performance depends on its ability to offer compensation packages to its professionals that are competitive with those offered by other investment management businesses. The Company believes its ability to offer compensation plans providing for the periodic issuance of shares of restricted stock ( *i.e.* , stock that, at the time of issuance, is subject to certain forfeiture restrictions, and thus is restricted as to its transferability until such forfeiture restrictions have lapsed) (the “Restricted Stock”) is vital to its future growth and success. The Company wishes to adopt equity-based compensation plans for its Non-Employee Directors (the “Director Plan”) and its employees and employees of its Subsidiaries (the “Employee Plan”, and together the “Plans”) (the “Participants”). 6. The Plans will authorize the issuance of shares of Restricted Stock subject to certain forfeiture restrictions. These restrictions may relate to continued employment or service on the Company's Board, as the case may be (lapsing either on an annual or other periodic basis or on a “cliff” basis, *i.e.* , at the end of a stated period of time), the performance of the Company, or other restrictions deemed by the Board to be appropriate. The Restricted Stock will be subject to restrictions on transferability and other restrictions as required by the Board. Except to the extent restricted under the terms of a Plan, a Participant granted Restricted Stock will have all the rights of any other shareholder, including the right to vote the Restricted Stock and the right to receive dividends. During the restriction period, the Restricted Stock generally may not be sold, transferred, pledged, hypothecated, margined, or otherwise encumbered by the Participant. Except as the Board otherwise determines, upon termination of a Participant's employment or service on the Board during the applicable restriction period, Restricted Stock for which forfeiture restrictions have not lapsed at the time of such termination shall be forfeited. 7. The maximum number of shares that may be issued under the Plans will be 10% of the outstanding shares of the Company's common stock on the effective date of the Plans plus 10% of the number of shares of the Company's common stock issued or delivered by the Company (other than pursuant to compensation plans) during the term of the Plans. 2 The Employee Plan limits the total number of shares that may be awarded to any single Participant in a single year to 500,000 shares. In addition, no Participant may be granted more than 25% of the shares reserved for issuance under the Plans. The Employee Plan will be administered by the Board, which will award shares of Restricted Stock to the Participants from time to time as part of the Participants' compensation based on a Participant's actual or expected performance and value to the Company. 2 For purposes of calculating compliance with this limit, the Company will count as Restricted Stock all shares of the Company's common stock that are issued pursuant to the Plans less any shares that are forfeited back to the Company and cancelled as a result of forfeiture restrictions not lapsing. 8. Under the Director Plan, the Company's Non-Employee Directors will each receive a grant of $30,000 worth of shares of Restricted Stock at the beginning of each one-year term of service on the Board, for which forfeiture restrictions will lapse at the end of that year. The Director Plan will be administered by the Board, and the grants of Restricted Stock under the Director Plan will be automatic and will not be changed without Commission approval. 9. The Plans have been approved by the Board. The Plans will be submitted for approval to the Company's shareholders, and will become effective upon such approval, subject to the issuance of the requested order. Applicants' Legal Analysis A. Relief for the Company and Its Subsidiaries To Engage in Certain Transactions and for the Company To Adhere to a Modified Asset Coverage Requirement 1. Applicants request an order pursuant to sections 6(c), 57(c) and 57(i) of the Act and rule 17d-1 under the Act granting exemptions from sections 18(a), 57(a)(1), 57(a)(2) and 61(a) of the Act and permitting certain transactions otherwise prohibited by section 57(a)(4) of the Act to permit the Company and the Subsidiaries to engage in certain transactions that otherwise would be permitted if the Company and the Subsidiaries were one company and to permit the Company to adhere to a modified asset coverage requirement. 2. Section 18(a) of the Act prohibits a registered closed-end investment company from issuing any class of senior security or selling any such security of which it is the issuer unless the company complies with the asset coverage requirements set forth in that section. Section 61(a) of the Act makes section 18 applicable to BDCs, with certain modifications. Section 18(k) exempts an investment company operating as an SBIC from the asset coverage requirements for senior securities representing indebtedness that are contained in section 18(a)(1)(A) and (B). 3. Applicants state that a question exists as to whether the Company must comply with the asset coverage requirements of section 18(a) (as modified by section 61(a)) solely on an individual basis or whether the Company must also comply with the asset coverage requirements on a consolidated basis because the Company may be deemed to be an indirect issuer of any class of senior securities issued by MSMF or another SBIC Subsidiary. Applicants state that they wish to treat MSMF and other SBIC Subsidiaries as if each were a BDC subject to sections 18 and 61 of the Act. Applicants state that companies operating under the SBIA, such as MSMF, will be subject to the SBA's substantial regulation of permissible leverage in its capital structure. 4. Section 6(c) of the Act, in relevant part, permits the Commission to exempt any transaction or class of transactions from any provision of the Act if, and to the extent that, such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that the requested relief satisfies the section 6(c) standard. Applicants contend that, to the extent that the Company is entitled to rely on section 18(k) for an exemption from the asset coverage requirements of section 18(a) and 61(a), there is no policy reason to deny the benefit of that exemption when the Company consolidates its assets with those of MSMF and other SBIC Subsidiaries for the purpose of compliance with those requirements. 5. Sections 57(a)(1) and
(2)of the Act generally prohibit, with certain exceptions, sales or purchases or other property between BDCs and certain of their affiliates as described in section 57(b) of the Act. Section 57(b) includes a person, directly or indirectly, either controlling, controlled by or under common control of the BDC. Applicants state that the Company owns or will directly or indirectly own more than 99.9% of the voting securities of each Subsidiary and each Subsidiary is or will be under the common control of the Company. Applicants further state that any purchase or sale between
(a)the Company and one or more subsidiaries,
(b)Subsidiaries and downstream controlled affiliates of the Company and another subsidiary and
(c)the Company and a controlled portfolio affiliate of a Subsidiary may be prohibited. Applicants submit that the requested relief is to permit the Company and its Subsidiaries, all of whom are owned, directly or indirectly, by the shareholders of the Company, to do that which they would otherwise be permitted to do if they were one company. 6. Section 57(c) provides that the Commission will exempt a proposed transaction from the terms of the proposed transactions, including the consideration to be paid or received, if they are reasonable and fair and do not involve overreaching of any person concerned, and the proposed transaction is consistent with the policy of the BDC concerned and the general purposes of the Act. Applicants submit that the requested relief meets this standard. 7. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated persons of a registered investment company, or an affiliated person of such person, acting as principal, from participating in any joint transaction or arrangement in which the registered company or a company it controls is a participant, unless the Commission has issued an order authorizing the arrangement. Section 57(a)(4) of the Act imposes substantially the same prohibitions on joint transactions involving BDCs and certain affiliates of their affiliates as described in section 57(b). Section 57(i) of the Act provides that rules and regulations under sections 17(a) and 17(d) and rule 17d-1 will apply to transactions subject to section 57(a)(4) in the absence of rules under the section. The Commission has not adopted rules under section 57(a)(4) with respect to joint transactions and, accordingly, the standard set forth in rule 17d-1 governs applicants' request for relief. 8. Applicants state that a joint transaction in which a Subsidiary and the Company or another Subsidiary are participants may be prohibited under section 57(a)(4) because the Company would not be a controlled affiliate of the Subsidiaries. Applicants request relief under sections 57(i) and rule 17d-1 to permit joint transactions in which a Subsidiary and the Company or another Subsidiary participate to the extent that such transactions would not be prohibited if the Subsidiaries participating in the transactions were deemed to be part of the Company and not separate companies. 9. In determining whether to grant an order under section 57(i) and rule 17d-1, the Commission considers whether the participation of the BDC in the joint transaction is consistent with the provisions, policies and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants in the transaction. Applicants state that the standard is satisfied because the requested relief would be simply to permit the Company and its Subsidiaries to conduct their business as if they were one company. B. Relief for the Company To Issue Restricted Stock Sections 23(a) and (b), Section 63 1. Under section 63 of the Act, the provisions of section 23(a) of the Act generally prohibiting a registered closed-end investment company from issuing securities for services or for property other than cash or securities are made applicable to BDCs. This provision would prohibit the issuance of Restricted Stock as a part of the Plans. 2. Section 23(b) generally prohibits a closed-end investment company from selling its common stock at a price below its current net asset value (“NAV”). Section 63(2) makes section 23(b) applicable to BDCs unless certain conditions are met. Because Restricted Stock that would be granted under the Plans would not meet the terms of section 63(2), sections 23(b) and 63 prohibit the issuance of the Restricted Stock. 3. Section 6(c) provides that the Commission may, by order upon application, conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of the Act, if and to the extent that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. 4. The Company requests an order pursuant to section 6(c) of the Act granting an exemption from the provisions of sections 23(a) and
(b)and section 63 of the Act. The Company states that the concerns underlying those sections include:
(i)Preferential treatment of investment company insiders and the use of options and other rights by insiders to obtain control of the investment company;
(ii)complication of the investment company's structure that makes it difficult to determine the value of the company's shares; and
(iii)dilution of shareholders' equity in the investment company. The Company states that the Plans do not raise the concern about preferential treatment of the Company's insiders because the Plans are bona fide compensation plans of the type that is common among corporations generally. In addition, section 61(a)(3)(B) of the Act permits a BDC to issue to its officers, directors and employees, pursuant to an executive compensation plan, warrants, options and rights to purchase the BDC's voting securities, subject to certain requirements. The Company states that, for reasons that are unclear, section 61 and its legislative history do not address the issuance by a BDC of restricted stock as incentive compensation. The Company states, however, that the issuance of Restricted Stock is substantially similar, for purposes of investor protection under the Act, to the issuance of warrants, options, and rights as contemplated by section 61. The Company also asserts that the Plans would not become a means for insiders to obtain control of the Company because the number of shares of the Company issuable under the Plans would be limited as set forth in the application. The Company's current intention is to issue only shares of Restricted Stock as incentive compensation; however, if the Company issues stock options in the future, it will do so pursuant to section 61. Moreover, no individual Participant could be issued more than 25% of the shares reserved for issuance under the Plans. 5. The Company further states that the Plans will not unduly complicate the Company's structure because equity-based employee compensation arrangements are widely used among corporations and commonly known to investors. The Company notes that the Plans will be submitted to the Company's shareholders for their approval. The Company represents that a concise, “plain English” description of the Plans, including their potential dilutive effect, will be provided in the proxy materials that will be submitted to the Company's shareholders. The Company also states that it will comply with the proxy disclosure requirements in Item 10 of Schedule 14A under the Securities Exchange Act of 1934 (the “Exchange Act”). The Company further notes that the Plans will be disclosed to investors in accordance with the requirements of the Form N-2 registration statement for closed-end investment companies, and pursuant to the standards and guidelines adopted by the Financial Accounting Standards Board for operating companies. In addition, the Company will comply with the disclosure requirements for executive compensation plans applicable to operating companies under the Exchange Act. 3 The Company thus concludes that the Plans will be adequately disclosed to investors and appropriately reflected in the market value of the Company's shares. 3 In addition, Applicant will comply with the amendments to the disclosure requirements for executive and director compensation, related party transactions, director independence and other corporate governance matters, and security ownership of officers and directors to the extent adopted and applicable to BDCs. *See* Executive Compensation and Related Party Disclosure, Release No. 34-53185 (Jan. 27, 2006). 6. The Company acknowledges that, while awards granted under the Plans would have a dilutive effect on the shareholders' equity in the Company, that effect would be outweighed by the anticipated benefits of the Plans to the Company and its shareholders. The Company asserts that it needs the flexibility to provide the requested equity-based employee compensation in order to be able to compete effectively with other financial services firms for talented professionals. These professionals, the Company suggests, in turn are likely to increase the Company's performance and shareholder value. The Company also asserts that equity-based compensation would more closely align the interests of the Company's employees with those of the Company's shareholders. The Company believes that the granting of shares of Restricted Stock to Non-Employee Directors under the Director Plan is fair and reasonable because of the skills and experience that such directors provide to the Company. Such skills and experience are necessary for the management and oversight of the Company's investments and operations. The Company believes that granting the shares of Restricted Stock will provide significant incentives for Non-Employee Directors to remain on the Board and to devote their best efforts to the success of the Company's business in the future. The issuance of shares of Restricted Stock will also provide a means for the Company's Non-Employee Directors to increase their ownership interest in the Company, thereby helping to ensure a close identification of their interests with those of the Company and its shareholders. 7. In addition, the Company states that the Company's shareholders will be further protected by the conditions to the requested order that assure continuing oversight of the operation of the Plans by the Company's Board. The full Board and the Committee will review periodically the potential impact that the issuance of Restricted Stock could have on the Company's earnings and NAV per share, such review to take place prior to any decisions to issue Restricted Stock under the Plans, but in no event less frequently than annually. Adequate procedures and records will be maintained to permit such review. The Board will be authorized to take appropriate steps to ensure that the grant of Restricted Stock under the Plans would not have an effect contrary to the interests of the Company's shareholders. This authority will include the authority to prevent or limit the grant of additional Restricted Stock under the Plans. Section 57(a)(4), Rule 17d-1 8. Section 57(a) proscribes certain transactions between a BDC and persons related to the BDC in the manner described in section 57(b) (“57(b) persons”), absent a Commission order. Section 57(a)(4) generally prohibits a 57(b) person from effecting a transaction in which the BDC is a joint participant absent such an order. Rule 17d-1, made applicable to BDCs by section 57(i), proscribes participation in a “joint enterprise or other joint arrangement or profit-sharing plan,” which includes a stock option or purchase plan. Employees and directors of a BDC are 57(b) persons. Thus, the issuance of shares of Restricted Stock could be deemed to involve a joint transaction involving a BDC and a 57(b) person in contravention of section 57(a)(4). Rule 17d-1(b) provides that, in considering relief pursuant to the rule, the Commission will consider
(i)whether the participation of the BDC in a joint enterprise is consistent with the Act's policies and purposes and
(ii)the extent to which that participation is on a basis different from or less advantageous than that of other participants. 9. The Company requests an order pursuant to section 57(a)(4) and rule 17d-1 to permit the Plans. The Company states that the Plans, although benefiting the Participants and the Company in different ways, are in the interests of the Company's shareholders because the Plans will help the Company attract and retain talented professionals, help align the interests of the Company's employees with those of its shareholders, and in turn help produce a better return to the Company's shareholders. Thus, the Company asserts that the Plans are consistent with the policies and purposes of the Act and that the Company's participation in the Plans will be on a basis no less advantageous than that of other participants. Applicants' Conditions Applicants agree that the order granting the requested relief will be subject to the following conditions: A. Relief for the Company and Its Subsidiaries To Engage in Certain Transactions and for the Company To Adhere to a Modified Asset Coverage Requirement 1. The Company will at all times be the sole limited partner of any Subsidiary and the sole owner of the Subsidiary's general partner, or otherwise own and hold beneficially, all of the outstanding voting securities or other equity interests in the Subsidiary. 2. No person shall serve or act as investment adviser to MSMF or another Subsidiary unless the Company's Board and shareholders of the Company shall have taken the action with respect thereto also required to be taken by the functional equivalent of the board of directors of MSMF or another Subsidiary and shareholders of MSMF or another Subsidiary as if MSMF or another Subsidiary were a BDC. 3. The managers of a Subsidiary will be the Company, a Subsidiary of the Company, or a person elected or appointed by the Company. 4. The Company will not issue or sell any senior security and the Company will not cause or permit MSMF or any other SBIC Subsidiary to issue or sell any senior security of which the Company, MSMF or any other SBIC Subsidiary is the issuer except to the extent permitted by section 18 (as modified for BDCs by section 61) of the Act; provided that immediately after issuance or sale by any of the Company, MSMF or any other SBIC Subsidiary of any such senior security, the Company individually and on a consolidated basis, shall have the asset coverage required by section 18(a) of the Act (as modified by section 61(a)), except that, in determining whether the Company on a consolidated basis has the asset coverage required by section 18(a) of the Act (as modified by section 61(a)), any senior securities representing indebtedness of MSMF or another SBIC Subsidiary shall not be considered senior securities and, for purposes of the definition of “asset coverage” in section 18(h), will be treated as indebtedness not represented by senior securities. B. Relief for the Company To Issue Restricted Stock 1. The Employee Plan will be authorized in accordance with section 61(a)(3)(A)(iv) of the Act, and each Plan will be approved by the Company's shareholders. 2. Each issuance of Restricted Stock to employees, officers and Non-Employee Directors will be approved by the Required Majority, as defined in section 57(o) of the Act, of the Company's directors on the basis that such issuance is in the best interests of the Company and its shareholders. 3. The amount of voting securities that would result from the exercise of all of the Company's outstanding warrants, options, and rights, together with any Restricted Stock issued pursuant to the Plans, at the time of issuance shall not exceed 25% of the outstanding voting securities of the Company, except that if the amount of voting securities that would result from the exercise of all of the Company's outstanding warrants, options, and rights issued to the Company's directors, officers, and employees, together with any Restricted Stock issued pursuant to the Plans, would exceed 15% of the outstanding voting securities of the Company, then the total amount of voting securities that would result from the exercise of all outstanding warrants, options, and rights, together with any Restricted Stock issued pursuant to the Plans, at the time of issuance shall not exceed 20% of the outstanding voting securities of the Company. 4. The maximum amount of Restricted Stock that may be issued under the Plans will be 10% of the outstanding shares of common stock of the Company on the effective date of the Plans plus 10% of the number of shares of the Company's common stock issued or delivered by the Company (other than pursuant to compensation plans) during the term of the Plans. 5. Both the full Board and the Committee will review periodically the potential impact that the issuance of Restricted Stock under the Plans could have on the Company's earnings and NAV per share, such review to take place prior to any decisions to grant Restricted Stock under the Plans, but in no event less frequently than annually. Adequate procedures and records will be maintained to permit such review. The Board will be authorized to take appropriate steps to ensure that the grant of Restricted Stock under the Plans would not have an effect contrary to the interests of the Company's shareholders. This authority will include the authority to prevent or limit the granting of additional Restricted Stock under the Plans. All records maintained pursuant to this condition will be subject to examination by the Commission and its staff. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E7-25357 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28083; 812-13464] Millennium India Acquisition Company Inc.; Notice of Application December 21, 2007. AGENCY: Securities and Exchange Commission (“Commission”). ACTIONS: Notice of application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) granting an exemption from section 12(d)(3) of the Act. *Applicant:* Millennium India Acquisition Company Inc. (“Applicant”). *Summary of Application:* Applicant seeks an order under section 6(c) of the Act to permit Applicant to invest in the securities of two issuers that each derives more than 15% of its gross revenues from securities related activities as defined in rule 12d3-1(d)(1) under the Act, in excess of the limitations in rule 12d3-1(b). *Filing Dates:* The application was filed on December 18, 2007, and amended on December 21, 2007. *Hearing or Notification of Hearing:* An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving Applicant with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on January 15, 2008, and should be accompanied by proof of service on Applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary. ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC, 20549-1090. Applicant, c/o Mr. F. Jacob Cherian, Millennium India Acquisition Company Inc., 330 East 38th Street, New York, NY 10016. FOR FURTHER INFORMATION CONTACT: Jean E. Minarick, Senior Counsel, at
(202)551-6811, or Janet M. Grossnickle, Branch Chief, at
(202)551-6821 (Division of Investment Management, Office of Investment Company Regulation). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-0102 (tel. 202-551-5850). Applicant's Representations 1. Applicant, a Delaware corporation, is registered as a non-diversified, closed-end management investment company under the Act. Applicant was formed in March 2006 as a special purpose acquisition company to serve as a vehicle to effect a merger, asset acquisition or other business combination with one or more businesses that have operations primarily in India. 2. SMC Global Securities Limited (“SMC”) and SAM Global Securities Limited (“SAM”), together with their respective subsidiaries, comprise the SMC Group of Companies (the “SMC Group”). The SMC Group, which is based in New Delhi, India, provides various financial services, including equities and commodities brokerage, mutual fund and initial public offering distribution, and depository and clearing services. More than 15% of SMC's and SAM's gross revenues are derived from “securities related activities” as defined in rule 12d3-1(d)(1) under the Act. 1 1 Subparagraph (d)(1) of rule 12d3-1 defines “securities related activities” to mean a person's activities as a broker, dealer, underwriter, or investment adviser to a registered investment company. 3. On May 12, 2007, Applicant entered into two substantially identical share subscription agreements (the “Subscription Agreements”) to invest in 14.9% of the equity securities of each of SMC and SAM, subject to shareholder approval and other conditions (the “Acquisition Transaction”). 2 In addition, Applicant has entered into a set of substantially identical option agreements that grant Applicant an option, exercisable within 30 days of the closing date of the corresponding Acquisition Transaction and subject to applicable law, to require SMC or SAM or both to begin regulatory approval proceedings that would permit it to issue global depositary shares to Applicant, which upon conversion into equity shares, represent an additional 6% of the equity share capital of SMC or SAM, as the case may be. 2 As described more fully in the application, Applicant does not seek to acquire more than 14.9% of the equity securities of SMC or SAM due to certain restrictions and lack of clarity in the regulatory approval process and timelines under Indian law. 4. The Applicant will not actively manage a portfolio. Rather, after the Acquisition Transaction closes, the Applicant intends to invest at least 80% of its assets in the securities of the SMC Group, U.S. government securities and other short-term instruments, unless or until such time as it raises additional capital. Upon consummation of the Acquisition Transaction and the related global depositary share acquisition, over 90% of Applicant's assets would be invested in the SMC Group. If the Applicant raises additional capital it may, if then permitted by Indian law and other regulatory requirements, make additional investments in the SMC Group or it may invest in one or more other Indian companies. Applicant does not seek an exemption from section 12(d)(3) of the Act for investment in the securities of any company other than the SMC Group. 5. Applicant's certificate of incorporation requires that the holders of a majority of Applicant's publicly listed common stock approve the Acquisition Transaction at a stockholders' meeting convened to consider proposals to approve such transactions. Moreover, shareholders who do not approve of the transactions may elect to have their publicly-traded shares converted into cash. Applicant will be precluded from proceeding with the Acquisition Transaction if more than 19.99% of Applicant's shareholders vote against the Acquisition Transaction and exercise their right to convert their shares to cash. Applicant filed definitive proxy materials on December 21, 2007, and expects to mail them to its shareholders on or about December 27, 2007. The shareholders' meeting is scheduled for January 10, 2008. 6. Applicant believes that permitting Applicant to invest in the equity securities of SMC and SAM in excess of the quantitative limitations set forth in rule 12d3-1(b) would benefit Applicant and be in the best interests of shareholders. Applicant will comply with all other requirements of rule 12d3-1. Applicant's Legal Analysis 1. Section 12(d)(3) of the Act, with limited exceptions, prohibits a registered investment company from purchasing or otherwise acquiring any securities issued by any person who is a broker, a dealer, is engaged in the business of underwriting, or is either an investment adviser of a registered investment company or a registered investment adviser. Rule 12d3-1 under the Act exempts the acquisition of securities of an issuer that derived more than 15% of its gross revenues in its most recent fiscal year from “securities related activities,” provided that, among other things, immediately after such acquisition,
(i)the acquiring company has invested not more than five percent of the value of its total assets in securities of the issuer and
(ii)the acquiring company owns not more than 5% of the outstanding securities of that class of the issuer's equity securities. Section 6(c) of the Act provides that the Commission may conditionally or unconditionally exempt any person, security or transaction from any provision of the Act or any rule thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. 2. Applicant requests an order pursuant to section 6(c) of the Act exempting Applicant from the provisions of section 12(d)(3) of the Act to the extent necessary to permit Applicant to invest in the equity securities of SMC and SAM, each an issuer that derives more than 15% of its gross revenues from “securities related activities,” in excess of the quantitative limitations set forth in rule 12d3-1(b). 3. Applicant states that section 12(d)(3) was intended
(a)to prevent investment companies from exposing their assets to the entrepreneurial risks of securities related businesses,
(b)to prevent potential conflicts of interest and to eliminate certain reciprocal practices between investment companies and securities related businesses, and
(c)to ensure that investment companies maintain adequate liquidity in their portfolios. 4. Applicant believes that its investment in the SMC Group does not raise the same type of entrepreneurial risks that may have concerned Congress in enacting section 12(d)(3). Applicant states that the ownership structure of most securities related businesses has changed since the time of enactment from partnership to a corporate form resulting in the limited liability status of these entities. In this case, Applicant argues that shareholders choosing to invest in Applicant have sought exposure to a vehicle that that provides a non-diversified investment in one or more businesses with operations primarily in India, 3 and Applicant's shareholders will have the opportunity to approve or reject the proposed investment after full disclosure of the transactions and the attendant risks. 3 The information that Applicant's shareholders will receive after the Acquisition Transaction demonstrates Applicant's role as a vehicle for U.S. investors to invest in an Indian company. As described more fully in the application, Aopplicant generally will file Forms 8-K furnishing the quarterly and annual financial statements translated into U.S. GAAP of SMC and SAM within five business days of receipt from SMC and SAM and also file promptly Forms 8-K furnishing any material information publicly disclosed by SMC and SAM under the Indian securities regulatory scheme or that would be required if the underlying securities were being registered under the Securities Act of 1933, as amended. 5. Applicant also believes that the Acquisition Transaction will not create potential conflicts of interest for Applicant or its shareholders. One potential conflict could occur if an investment company purchased securities or other interests in a broker-dealer to reward that broker-dealer for selling fund shares, rather than solely on investment merit. Applicant notes that, as a condition to the granting of exemptive relief, the SMC Group and its affiliated persons within the meaning of section 2(a)(3) of the Act and affiliated persons of such affiliated persons (collectively, “Affiliates”) will not sell any securities issued by Applicant and will not act as agent or as broker in connection with the sale of any shares of Applicant. 4 4 The terms and conditions of the application will be made binding on SMC Group through an undertaking by the SMC Group or amendments to the Subscription Agreements. 6. Applicant states that another potential conflict of interest is that a broker-dealer could be influenced to recommend to its clients certain investment companies that invest in such broker-dealer, thereby using the assets of the investment companies to boost the price of the broker-dealer. Applicant notes that, as a condition to the requested order, the SMC Group and its Affiliates will not sell any securities issued by Applicant as an underwriter, will not make a market in any securities issued by Applicant and will not act as agent or a broker in connection with the sale of any shares of the Applicant. 7. Applicant states that another purpose of section 12(d)(3) is to prevent investment companies from directing brokerage to a broker-dealer in which the investment company has invested to enhance the broker-dealer's profitability or to assist it during financial difficulty, even though that broker-dealer may not offer the best price and execution. Applicant represents that it is not a trading vehicle and will not actively trade in securities of SAM, SMC or securities of other issuers. Further, as a condition to the requested order, Applicant and its Affiliates will not use the SMC Group or its Affiliates as a broker-dealer for the purchase or sale of any portfolio securities. 8. Applicant also believes that section 12(d)(3) reflects a concern with respect to the liquidity of an investment company's portfolio. Because shareholders invested in Applicant for the specific purpose of buying and holding a vehicle that would provide a non-diversified investment in an Indian enterprise, liquidity of the Applicant's portfolio is not a concern for Applicant's shareholders. Moreover, Applicant is a closed-end investment company that does not offer redeemable securities; therefore, there are no minimum liquidity standards applicable to Applicant under the Act. 9. Applicant believes that the Acquisition Transaction does not present the potential for the risks and abuses section 12(d)(3) is intended to eliminate, including the risk of reciprocal practices. Applicant believes that the standards set forth in section 6(c) have been met. Applicant's Conditions Applicant agrees that the order granting the requested relief will be subject to the following conditions: 1. The Acquisition Transaction will not be consummated unless it is approved by the holders of a majority of the Applicant's publicly-listed shares of common stock present in person or by proxy at a stockholders' meeting convened to consider proposals to approve the Acquisition Transaction and unless holders of less than 20% of the Applicant's publicly-listed shares of common stock seek to convert their shares to cash. 2. Applicant will not invest in any financial services companies other than the SMC Group. Applicant will not actively trade in securities of SAM, SMC or securities of other issuers. 3. The SMC Group and its Affiliates will not sell any securities issued by Applicant as an underwriter, will not make a market in any securities issued by Applicant and will not act as agent or as a broker in connection with the sale of any shares of the Applicant. 4. Applicant and its Affiliates will not use the SMC Group or its Affiliates as a broker-dealer for the purchase or sale of any portfolio securities. 5. The SMC Group and its Affiliates will not act as custodian for Applicant and its Affiliates nor will they provide any other services to Applicant and its Affiliates. 6. No officer of Applicant or member of Applicant's board of directors (“Board”) shall be affiliated with the SMC Group or its Affiliates (other than as a result of the Acquisition Transaction discussed herein). 7. Applicant's Chief Compliance Officer will monitor and report to Applicant's Board no less than annually on compliance with these conditions. 8. Applicant will comply with the provisions of rule 12d3-1 under the Act, except for paragraph
(b)solely to the extent necessary to permit Applicant to have more than 5% of the value of its total assets invested in more than 5% of the outstanding securities of the classes of SMC Group's equity securities that are described in this application. For the Commission, by the Division of Investment Management, under delegated authority. Nancy M. Morris, Secretary. [FR Doc. E7-25350 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28080; 812-13453] The UBS Funds, et al.; Notice of Application December 19, 2007. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from rule 12d1-2(a) under the Act. *Summary of Application:* Applicants request an order to permit funds of funds relying on rule 12d1-2 under the Act to invest in certain financial instruments. *Applicants:* The UBS Funds, SMA Relationship Trust, UBS Investment Trust, UBS Index Trust, UBS Series Trust, and UBS Relationship Funds (collectively, the “Trusts”); UBS Global Asset Management (Americas) Inc. (the “Advisor”); and UBS Global Asset Management
(US)Inc. (“UBS Global AM (US)”). *Filing Dates:* The application was filed on November 23, 2007, and amended on December 14, 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 Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on January 15, 2008 and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary. ADDRESSES: Secretary, Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, c/o Mark F. Kemper, UBS Global Asset Management (Americas) Inc., One North Wacker Drive, Chicago, IL 60606. FOR FURTHER INFORMATION CONTACT: Lewis Reich, Senior Counsel, at
(202)551-6919, or Nadya B. Roytblat, Assistant Director, at
(202)551-6821 (Division of Investment Management, Office of Investment Company Regulation). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-0104 (telephone
(202)551-8090). Applicants' Representations 1. Each Trust organized as a Delaware statutory trust or a Massachusetts business trust and is registered under the Act as an open-end management investment company. The Trusts offer separate series (“Funds”) that may invest in other registered investment companies in reliance on section 12(d)(1)(G) of the Act and rule 12d1-2 under the Act (“Underlying Funds”). 1 Applicants propose that the Funds be permitted to invest in futures contracts, options on futures contracts, swap agreements, derivatives, and other financial instruments that may not be securities within the meaning of section 2(a)(36) of the Act (“Other Investments”) in addition to the Underlying Funds. 2 1 Applicants request that the relief apply to all existing and future series of the Trusts and all other management investment companies and their series registered under the Act that are in the same group of investment companies, as defined in section 12(d)(1)(G) of the Act, as the Trusts. All Funds that currently intend to rely on the order have been named as applicants. Any other existing or future entity that relies on the order in the future will do so only in accordance with the terms and conditions in the application. 2 As part of its strategy to invest in securities, Other Investments and Underlying Funds, an Applicant Fund also may, pursuant to rule 12d1-2 under the Act, invest in securities issued by another registered investment company that is not in the same group of investment companies as the Fund (a “Non-Group Fund”) consistent with section 12(d)(1)(A) or 12(d)(1)(F) of the Act. 2. The Advisor is a Delaware corporation and an indirect, wholly-owned subsidiary of UBS AG, an internationally diversified organization with operations in many aspects of the financial services industry. The Advisor is registered as an investment adviser under the Investment Advisers Act of 1940 and serves as investment adviser to the Funds. UBS Global AM (US), also a Delaware corporation and an indirect, wholly-owned subsidiary of UBS AG, is registered as a broker-dealer under the Securities Exchange Act of 1934 Act (“Exchange Act”) and serves as the principal underwriter to The UBS Funds, SMA Relationship Trust, UBS Investment Trust, UBS Index Trust, and UBS Series Trust. Applicants' Legal Analysis Section 12(d)(1)(A) of the Act provides that no registered investment company (“acquiring company”) may acquire securities of another investment company (“acquired company”) if such securities represent more than 3% of the acquired company's outstanding voting stock or more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or cause more than 10% of the acquired company's voting stock to be owned by investment companies. 1. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if:
(i)The acquiring company and acquired company are part of the same group of investment companies;
(ii)the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper;
(iii)the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Exchange Act or by the Commission; and
(iv)the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or
(G)of the Act. 2. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, government securities, and short-term paper:
(1)Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act;
(2)securities (other than securities issued by an investment company); and
(3)securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act. 3. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction from any provisions of the Act, or from any rule under the Act, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act. 4. Applicants state that the proposed arrangement would comply with the provisions of rule 12d1-2 under the Act, but for the fact that the Funds may invest a portion of their assets in Other Investments. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Funds to invest in Other Investments. Applicants assert that permitting the Funds to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address. Applicants' Conditions Applicants agree that the order granting the requested relief will be subject to the following conditions: 1. Prior to approving any investment advisory agreement under section 15 of the Act, the board of trustees of the appropriate Fund, including a majority of the trustees who are not “interested persons,” as defined in section 2(a)(19) of the Act, will find that the advisory fees, if any, charged under the agreement are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the advisory agreement of any Underlying Fund or any Non-Group Fund in which the Fund may invest. Such findings, and the basis upon which the findings are made, will be recorded fully in the minute books of the appropriate Fund. 2. Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2), to the extent that it restricts any Fund from investing in Other Investments as described in the application. For the Commission, by the Division of Investment Management, under delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E7-25378 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P [?USGPO Galley End:?] SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57021; File No. SR-ISE-2007-116] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Open the Exchange's Equity Trading Platform at 9 a.m. December 20 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 December 14, 2007, the International Securities Exchange, LLC (“Exchange” or “ISE”) 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 substantially prepared by the Exchange. The Exchange has designated this proposal as non-controversial under Section 19(b)(3)(A)(iii) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which renders the proposed rule change 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 The Exchange proposes to amend its rules to allow the Exchange to open the ISE Stock Exchange at 9 a.m. without regard to whether the primary market in a particular security is open and to make other associated changes to its rules. The text of the proposed rule change is available at ISE's principal office, the Commission's Public Reference Room, and *http://www.ise.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 IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to establish a Pre-Market Session for the trading of equity securities. The proposed Pre-Market Session will start at 9:00 a.m. and conclude when a security is opened for trading according to the existing procedures contained in ISE Rule 2106. Under Rule 2106, the Exchange currently opens securities for trading on the ISE Stock Exchange following the first trade on the primary market for New York Stock Exchange (“NYSE”) and American Stock Exchange (“Amex”) listed securities, and following the first reported national best bid and offer (“NBBO”) for Nasdaq and NYSE Arca listed securities. Generally, this means that the ISE Stock Exchange opens Nasdaq and NYSE Arca securities at 9:30 a.m. and opens NYSE and Amex securities after the first trade in a security, which occurs at or after 9:30 a.m. The proposed Pre-Market Session would not change the way in which the ISE Stock Exchange currently opens its regular trading session. 5 5 The Exchange will continue to accept orders for the regulatory trading session beginning at 7 a.m., and will continue to perform the current midpoint opening transaction for such orders received prior to the opening. When the primary market is either the NYSE or the Amex, the opening trade will continue to be executed at the midpoint of the first reported NBBO subsequent to a reported trade on the primary market after 9:30 a.m. When the primary market is Nasdaq or NYSE Arca, the opening trade will continue to be executed at the midpoint of the first reported NBBO after 9:30 a.m. The Exchange proposes to add a Pre-Opening Order to accommodate trading in the Pre-Market Session. A Pre-Opening Order is an order that is eligible for execution during Pre-Market Session trading. Unexecuted Pre-Opening Orders will become Day Orders upon commencement of the Regular Market Session. Equity EAMs that submit orders to the Pre-Market Session on behalf of non-members will be required to disclose the risks of participating in the Pre-Market Session to their customers, including the risk of:
(1)lower liquidity; 6
(2)higher volatility; 7
(3)changing prices; 8
(4)unlinked markets; 9
(5)news announcements; 10
(6)wider spreads, 11 and
(7)lack of calculation or dissemination of underlying index value or intra-day indicative value (“IIV”). 12 6 There may be lower liquidity in Pre-Market hours trading as compared to regular market hours. As a result, an order may only be partially executed, or not at all. 7 There may be greater volatility in Pre-Market hours trading than in regular market hours. As a result, an order may only be partially executed, or not at all, or the price received may be an inferior price in Pre-Market hours trading compared to what would have been received during regular markets hours. 8 The prices of securities traded during Pre-Market hours may not reflect the prices either at the end of regular market hours, or upon the opening of the next morning. As a result, an order may receive an inferior price in Pre-Market hours trading compared to what would have been received during regular markets hours. 9 The prices displayed on a particular Pre-Market hours system may not reflect the prices in other concurrently operating Pre-Market hours trading systems dealing in the same securities. Accordingly, an order may receive an inferior price in one Pre-Market hours trading system compared to the price the order would have received in another Pre-Market hours trading system. 10 In Pre-Market hours trading, news announcements may occur during trading, and if combined with lower liquidity and higher volatility, may cause an exaggerated and unsustainable effect on the price of a security. 11 Lower liquidity and higher volatility in Pre-Market hours trading may result in wider than normal spreads for a particular security. 12 Since the underlying index value and/or IIV of a derivative security may not be calculated or widely disseminated during the Pre-Market hours, an investor who is unable to calculate implied values for such products during Pre-Market hours may be at a disadvantage to market professionals. Under the proposal, the Pre-Market Session would operate the same as in the regular trading session, except that there would be no intermarket price protection for executions in the Pre-Market Session until 9:30 a.m. Because trading that occurs in the Pre-Market Session after 9:30 a.m. and until the security is opened in the regular market session will be subject to the requirements of Regulation NMS, starting at 9:30 a.m. the Pre-Market Session will protect incoming Pre-Opening Orders from trading through Protected Quotations 13 on other markets. Similarly, Regulation NMS will prohibit other markets from trading through ISE's quotes starting at 9:30 a.m. To accommodate the needs of these other markets to comply with Regulation NMS, we will execute incoming orders marked as intermarket sweep orders and orders marked as immediate-or-cancel in the Pre-Market Session starting at 9:30 a.m. even though they may not be marked as Pre-Opening Orders. 13 *See* ISE Rule 2100(c)(16). 2. Statutory Basis The Exchange believes that the basis under the Act for this proposed rule change is found in Section 6(b)(5), 14 in that the proposed rule change is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange believes that the proposal will provide an opportunity for investors to begin trading equity securities before the primary market opens with proper disclosure of the risks involved in doing so. 14 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange believes that the proposed rule change does not 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 The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act 15 and subparagraph (f)(6) of Rule 19b-4 thereunder. 16 Because the foregoing proposed rule change:
(i)Does not significantly affect the protection of investors or the public interest;
(ii)does not impose any significant burden on competition; and
(iii)does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6)(iii) thereunder. 17 15 15 U.S.C. 78s(b)(3)(A). 16 17 CFR 240.19b-4(f)(6). 17 Rule 19b-4(f)(6) also requires the Exchange to give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied the five-day pre-filing requirement. 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. 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 No. SR-ISE-2007-116 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-ISE-2007-116. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of 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-ISE-2007-116 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 18 18 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-25356 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P [?USGPO Galley End:?] SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57022; File No. SR-Amex-2007-138] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing of Proposed Rule Change To Establish a New Class of Off Floor Market Makers in ETFs Called Designated Amex Remote Traders December 20, 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 December 19, 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, II, and III below, which Items have been substantially prepared by the Amex. 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. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Amex proposes to adopt changes to its rules to create a new class of off-floor market makers in all ETF securities that trade on the Exchange, including the implementation of related changes to the Exchange's AEMI trading platform. These market makers, to be called “Designated Amex Remote Traders” or “DARTs,” will electronically enter competitive quotations on a regular basis sufficient to satisfy market maker regulatory requirements. Business requirements will include minimum performance standards with respect to each assigned security that a DART trades. The purpose of the new program is to
(1)encourage competitive quoting within the Amex and between the Amex and other market centers,
(2)retain and increase order flow by attracting new market makers to the Exchange, and
(3)encourage greater depth at or around the national best bid or offer (“NBBO”). The text of the proposed rule change is available on the Amex's Web site at *http://www.amex.com,* at the Amex's Principal Office, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Amex included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose In order to
(1)encourage competitive quoting within the Amex and between the Amex and other market centers,
(2)retain and increase ETF order flow in AEMI by attracting new market makers to the Exchange, and
(3)encourage greater depth at or around the NBBO, the Exchange proposes to adopt changes to its rules to create a new class of off-floor market makers in all ETF securities that trade on the Exchange, including the implementation of related changes to the Exchange's AEMI trading platform. These market makers, to be called “Designated Amex Remote Traders” or “DARTs,” will electronically enter competitive quotations on a regular basis sufficient to satisfy market maker regulatory requirements. DARTs will also have to meet certain business requirements, which will include minimum performance standards as discussed below. The Exchange anticipates that the implementation of the DARTs program should increase the liquidity available in those ETF securities to which DARTs are assigned and reduce the likelihood of tolerance breaches in AEMI due to the resultant additional depth at or around the NBBO. This proposed rule change replaces a similar proposed rule change for a DARTs program at the Exchange that was recently approved by the Commission. 3 The earlier approved rule change was deleted in a subsequent rule filing by the Exchange 4 in order to allow consideration of certain Amex equity Specialists' comments on the DARTs program that were received but inadvertently overlooked by the Commission. 5 In the instant filing, the Exchange responds to a number of the issues raised by the Comment Letter. In addition, the proposed rule change contains certain differences from the previously approved rule change for the DARTs program. The most significant difference is that the DARTs program as proposed herein is limited to ETF securities, in contrast to the Exchange's earlier rules which would have allowed DARTs in equity securities as well. The Exchange has determined that the implementation of DARTs for equities requires substantially greater time and effort than that required for ETFs alone, in part due to the substantially different treatment of Crowd Orders in the Exchange's priority and parity rules for equities and for ETFs. 6 Consequently, the Exchange believes that it should focus its initial efforts on creating a DARTs program for ETFs. 3 *See* Securities Exchange Act Release No. 56446 (Sept. 17, 2007), 72 FR 54303 (Sept. 24, 2007) (approving File No. SR-Amex-2007-85). 4 *See* Securities Exchange Act Release No. 56764 (Nov. 7, 2007), 72 FR 64095 (Nov. 14, 2007) (File No. SR-Amex-2007-113). 5 *See* letter dated September 5, 2007 to Nancy M. Morris, Secretary, Commission, from Brendan E. Cryan, Managing Member, Brendan E. Cryan & Company, LLC; Jonathan Q. Frey, Managing Partner, J. Streicher & Co., Michael Marchisi, Managing Partner, AIM SEcurities Co.; and Robert B. Nunn, Chief Operating Officer, Cohen Specialist, LLC (“Comment Letter”). 6 In general, under Rule 126-AEMI (Precedence of Bids and Offers), after giving priority to customer orders, the ETF portion of the rule establishes parity between the Specialist quote, non-customer Crowd Orders (which would include quotes from DARTs),a nd non-customer public orders (with the latter treated as a group foer the initial parity allocation). In contrat, the equity portion of the rule requires the Specialist quote to yield to public orders, as well as any Crowd Orders (including quotes from DARTs) to the exent such Crowd Orders are in parity with the public orders. DARTs will be members or member organizations physically located off-floor that will electronically enter competitive quotations into AEMI on a regular basis in all ETF securities to which they are assigned in the DARTs program. The proposed DARTs program is similar to the Supplemental Registered Options Traders (“SROT”) program implemented by the Amex for options, 7 with its own unique caveats. Under the DARTs proposal, Amex Specialist firms may also be DARTs, although they may not be registered as such in securities in which they are also the Specialist. DARTs will trade in an identical way as Registered Traders in the same ETF securities on the Exchange when auto-ex is on, with similar obligations under Exchange rules such as those relating to a course of dealings that contributes to the maintenance of a fair and orderly market. 7 *See* Amex Rule 993-ANTE (Supplemental Registered Options Traders). Due to their lack of a physical presence in the trading crowd, which is a basic requirement of the auction market, DARTs will not participate in any post-trade allocation in connection with an auction trade. Instead, a DART's participation in an auction pair-off on the Exchange will be limited to the marketable amount of its quotation on the AEMI Book at the time of the pair-off. For example, suppose the breach of a Tolerance has occurred (disabling auto-ex as provided in Rule 128A-AEMI) due to a large incoming buy order that leaves an imbalance of 100,000 shares of XYZ ETF to be executed. Assume that a DART in that security is offering 10,000 shares at $9.90, 10,000 shares at $9.95, and 5,000 shares at $10.10. If the Specialist sets the auction price at $10.00 and there are marketable sell orders/offers on the AEMI Book at that price for 70,000 shares (including the 10,000 shares offered by the DART at $9.90 and the 10,000 shares offered at $9.95), all of those shares would execute against the imbalance, leaving the remaining 30,000 shares for the post-trade allocation. Even though the DART has a remaining offer of 5,000 shares on the contra side of the aggressing order, he would not be considered an “active crowd participant” for purposes of the post-trade allocation and cannot therefore elect to participate in the disposition of the remaining 30,000 shares. Amex will establish minimum requirements for a DART to remain in the program, which may be modified by the Exchange from time to time. First, a DART must provide competitive quotations on a regular basis sufficient to satisfy market maker regulatory requirements. 8 Business requirements will include minimum performance standards determined from time to time by the Exchange, including volume participation rate and trade participation rate. A DART that fails to comply with one or more of the performance standards, as determined by the Chief Executive Officer of the Exchange or his/her designee, may be subject to loss of all or a portion of any benefits to which they would otherwise be entitled under Amex rules by virtue of its status as a DART, including possible suspension or termination of DART status. A DART may be either a regular member of the Exchange or an associate member of the Exchange that meets the requirements for electronic access to the Exchange's automated systems. The number of ETF securities in which a DART may be permitted to make markets will be determined by the Exchange in accordance with Commentary .05 in proposed Rule 110A-AEMI. The Exchange expects that the proposed rules for the DARTs program will set a high bar for prospective DART participants, and, while management anticipates starting the program with a limited group of DARTs, no specific upper limit on the number of DARTs is anticipated. In addition to the requirements described above, DARTs shall be required to meet eligibility criteria similar to those specified in the SROT program, which criteria will include: 8 See proposed Rule 110A-AEMI(b)(i), which requires DARTs to “ provide continuous two-sided quotations in all assigned securities * * * .” This basic market maker requirement mirrors the definition of “market maker” set forth in Section 3(a)(38) of the Act, which requires a dealer in the security involved to hold himself out “as being willing to buy and sell such security for his own account on a regular or continuous basis.” The following additional regulatory requirements will be imposed by proposed Rule 110A-AEMI(b)(ii): “With respect to each security to which he/she is assigned by the Exchange, a DART's transactions must constitute a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market. In connection with this function, a DART is required to make competitive bids and offers as reasonably necessary to contribute to the maintenance of a fair and orderly market and shall engage, to a reasonable degree under the existing circumstances, in dealings for his/her own account when there exists a lack of price continuity, a temporary disparity between the supply of and demand for the security(ies) in which he/she is trading, or a temporary distortion of the price relationships between the security(ies) in which he/she is trading and the security(ies) underlying or otherwise related to such security(ies).” • Adequacy of resources including capital, technology and personnel; • history of stability, superior electronic capacity, and superior operational capacity; • level of market-making and/or specialist experience in a broad array of securities; • ability to interact with order flow in all types of markets; • existence of order flow commitments; • willingness and ability to make competitive markets on the Exchange and otherwise promote the Exchange in a manner that is likely to enhance the ability of the Exchange to compete successfully for order flow in the ETF securities it trades; • the number of member organizations requesting approval to act as a DART; and • ability to transact in any ETF underlying markets. The Exchange would use the factor relating to the existence of order flow commitments to evaluate existing order flow commitments between a DART applicant and order flow providers. A future change to, or termination of, any such commitments would not be used by the Exchange at any point in the future to terminate or take remedial action against a DART. Furthermore, the Exchange would not take remedial action solely because orders subject to any such commitments were not subsequently routed to the Exchange. The factor relating to willingness to promote the Exchange includes assisting in meeting and educating market participants, maintaining communications with member firms in order to be responsive to suggestions and complaints, responding to suggestions and complaints, and other similar activities. The Exchange would use this criterion to determine which applicants would best be able to enhance the competitiveness of the Exchange. The Exchange would not apply this factor to in any way restrict, either directly or indirectly, a DART's activities as a market maker or specialist on other exchanges, or to restrict how a DART handles orders it holds in a fiduciary capacity to which it owes a duty of best execution. The regulatory requirements applicable to DARTs will be surveilled for by the FINRA Amex Regulation Division (“FINRA Amex”) consistent with current surveillance procedures for Registered Traders on the Exchange. FINRA Amex staff will work with Amex technical staff on planning the necessary changes to AEMI to capture required surveillance data and in surveilling the increased number of market makers that the program is expected to attract. Adjustments to current technology and surveillance procedures will likely also be necessitated by the fact that the DARTs will not be physically located on the floor of the Exchange. DARTs will interface with the Amex's Floor Officials in the case of trade disputes substantially in accordance with existing procedures used for SROTs, another off-floor market participant. DARTs accordingly will be required to designate persons on- and/or off-floor to be in direct real-time contact with Floor Officials on such matters. 9 9 In accordance with the current Amex service desk written procedures manual, SROTs have floor representation through their affiliated member firm or clearing entity. Service desk personnel have direct contact with the SROTs by telephone and e-mail. An SROT can request a trade review under obvious error rules through initial contact with the service desk, which will take specified follow-up steps. The service desk serves as the liaison between the SROT and floor activity, and in all situations requiring involvement by the Trading Floor Regulatory Liaison Group and a Floor Official. The service desk, in a customer service capacity, will present all data and communicate the SROT requests and follow-up detail to the appropriate parties. Documentation associated with corrective actions and/or floor rulings is presented to the SROT's on-floor representation for signature/stamp of approval and relevant documentation is recorded and saved. In situations involving clearly erroneous transactions or other events involving the SROT (although not initiated by the SROT), the Amex service desk will contact the SROT by phone or e-mail to provide notification of a possible dispute involving one or more SROT trades. A similar provision relating to DARTs will be added to the manual. However, Amex has recently received Commission approval of a proposed rule change making an on-floor presence to resolve trade disputes optional, with an off-floor presence to resolve disputes mandatory. Consequently, corresponding changes will be made to the above-referenced manual provisions. See Securities Exchange Act Release No. 56882 (December 3, 2007), 72 FR 69261 (December 7, 2007) (approving File No. SR-Amex-2007-56). Regulation M will apply to DARTs in the same way that it applies to any other market participants, as will Amex Rule 193 to the extent the DART is affiliated with a Specialist member organization. However, no expansion of the application of Amex Rule 193 beyond current practice is intended. 10 10 The language in Rule 110A-AEMI(c)(ii) cross-referencing Amex Rule 193 is substantively identical to language also contained in Amex Rules 993-ANTE(d)(iii) (Supplemental Registered Options Traders) and 994-ANTE(d)(iii) (Remote Registered Options Traders), neither of which have been interpreted to expand the applicability of Amex Rule 193 beyond affiliates of Specialists. Finally, the Comment Letter had observed that a provision in previously proposed Rule 110A-AEMI(a) relating to minimum capital requirements for DARTs is unnecessary due to its current inapplicability to DARTs (who will be subject to the Commission's net capital rule). 11 The Exchange has eliminated the provision from the rule change proposed herein. 11 Rule 15c3-1 under the Act, 17 CFR 240.15c3-1. The specific AEMI rules to which changes are being proposed are discussed below. Rule 110A-AEMI Designated Amex Remote Traders This proposed new rule will contain the basic requirements for DARTs as described herein, in the same manner that Rule 110-AEMI contains the basic requirements for Registered Traders. Rule 1A-AEMI Applicability, Definitions, References and Phase-In The Exchange is proposing revisions to Rule 1A-AEMI in order to
(1)update the definition of the AEMI Book to include electronic submissions from DARTs,
(2)provide that a Crowd Order includes any bid or offer in the AEMI Book entered by a DART,
(3)provide a definition of a DART with a cross-reference to proposed Rule 110A-AEMI,
(4)update the definition of the Specialist Order Book to exclude bids and offers of DARTs, and
(5)make a minor unrelated correction to the definition of Exchange Traded Funds (“ETFs”). Rule 109-AEMI “Stopping” Stock The Exchange proposes to revise Rule 109-AEMI to add DARTs to the list of Amex market participants prohibited from granting or accepting a stop with respect to a security traded in AEMI. Rule 112-AEMI Suspension of Registration of Registered Trader or Designated Amex Remote Trader The Exchange is proposing to add a provision to this rule to provide for the suspension of the registration of a DART under circumstances similar to the current provision that provides for the suspension of a Registered Trader. Both types of participants are market makers with respect to securities traded in AEMI. Rule 115-AEMI Exchange Procedures for Use of Unusual Market Exception The Exchange proposes to revise Rule 115-AEMI to provide procedures that will cover situations in which a DART is unable to publish quotations or is streaming in incorrect quotes under unusual market conditions. The Exchange also is proposing to correct an inaccuracy in the current rule in order to clarify that such issues with respect to Registered Traders are handled via the Service Desk and not by a Floor Official. Rule 123-AEMI Manner of Bidding and Offering The Exchange is proposing revisions to this rule to provide that AEMI shall accept electronic bids and offers from DARTs and include them in the AEMI Book. The proposed changes would also place DARTs on a par with Specialists and Registered Traders in terms of their ability to stream bids and offers into AEMI at multiple price levels (with the maximum number being changed from five to four to reflect current AEMI system capabilities) and would require (as with Specialists and Registered Traders) that all quotes provided be two-sided. A DART would also be prohibited from streaming in a quote that locks or crosses an existing quote that the same DART has previously streamed in for the same security. Rule 128A-AEMI Automatic Execution The Exchange is proposing two minor changes to Rule 128A-AEMI so that DARTs will be treated in the same manner as Registered Traders in connection with certain automatic executions when a DART's quotation
(1)matches the APQ on the other side of the market or
(2)would lock or cross the APQ in certain circumstances. Rule 128B-AEMI Auction Trades The changes being proposed to this rule would exclude DARTs from participation in any post-trade allocation in connection with an auction, as described above. Rule 719-AEMI Comparison of Exchange Transactions The Exchange is proposing to add DARTs to one of the equity account type codes used for market maker transactions in the AEMI securities in which they are registered. Rule 957 Accounts, Orders and Records of Registered Traders, Designated Amex Remote Traders, Specialists and Associated Persons The Exchange is proposing changes to Rule 957 that will place the same requirements on DARTs that Registered Traders are subject to with respect to reporting certain trading accounts and orders to the Exchange and producing books, records and other information pertaining to certain transactions. 2. Statutory Basis The proposed rule change is designed to be consistent with Regulation NMS, as well as consistent with Section 6(b) of the Act, 12 in general, and furthers the objectives of Section 6(b)(5), 13 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and national market system, and, in general, to protect investors and the public interest. 12 15 U.S.C. 78f(b). 13 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that a substantial portion of the Comment Letter on the Exchange's earlier rule filing on DARTs was devoted to business-side critiques of how best to allocate Amex resources to craft a market structure that will best ensure Amex's future success. The suggestion was made that adding DARTs to the Amex would somehow degrade market quality and injure Amex's competitive position. However, Amex management believes that, in the post-Regulation NMS world, it is essential that the Exchange's existing structure be enhanced by the introduction of additional quoting participants, while preserving those aspects of the Specialist system that order flow providers still value. Combined with other changes to Amex's market structure, Amex management believes that the addition of DARTs will create additional resident liquidity at the Amex needed to better compete with other trading centers for order flow. Further, the Exchange notes that most of the concerns expressed in the Comment Letter regarding the potential negative impact of the DARTs program on competition seemed focused on preventing the introduction of competitive market makers into the marketplace for equities, as opposed to the marketplace for ETFs in which market makers (Registered Traders) already participate. 14 Now that the proposed scope of the DARTs program is limited to ETFs only, such concerns—with which the Exchange takes strong issue in any event—are moot. Other statements in the Comment Letter regarding the stabilization rules are moot for the same reason. 14 For example, the Comment Letter at page 2 states, “This business as usual approach entirely ignores the fact that Registered Traders are not allowed to make markets in equities, which DARTs would be entitled to do should the Proposal be approved” and “we believe that the introduction of market makers into the Exchange's equity marketplace raises a number of significant concerns.” In addition, the Comment Letter at page 3 states, “While it is true that the Proposal appears to leave the role of equity specialists unchanged, the introduction of market makers, whether they act from on or off-floor, into the Amex's equity marketplace, is clearly duplicative of the specialist function.” C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received from Members, Participants or Others As noted in Section II.A.(1) above, the Comment Letter was the only comment letter received on the Exchange's earlier DARTs rule filing that relates to the substance of the rule change proposed herein, and the Exchange has addressed herein a number of issues raised in that letter. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which the Exchange consents, the Commission will:
(A)By order approve such proposed rule change, or
(B)Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form *(http://www.sec.gov/rules/sro.shtml);* or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-Amex-2007-138 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-2007-138. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Amex. 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-2007-138 and should be submitted on or before January 22, 2008. [?USGPO Galley End:?] For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 15 15 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-25351 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P [?USGPO Galley End:?] SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57030; File No. SR-Amex-2007-135] Self-Regulatory Organizations; American Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Section 107D(g) of the Amex Company Guide December 21, 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 December 7, 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 Amex. The Exchange has filed the proposal pursuant to section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which renders the proposal 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). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend section 107D(g) of the Amex *Company Guid* e (the “ *Company Guide* ”) to create a limited exception to the requirement that 90% of an index's numerical value underlying an issuance of index-linked securities (“Index Securities”) and at least 80% of the total number of component securities will meet the then current criteria for standardized options trading on a national securities exchange. This exception will apply only when
(i)no underlying component security represents more than 10% of the dollar weight of the index and
(ii)the index has a minimum of 20 components. The text of the proposed rule change is available on the Amex's Web site at *http://www.amex.com,* the Office of the Secretary, the Amex and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Amex included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of this proposal is to provide a limited exception to the requirement set forth in section 107D(g)(v) of the *Company Guide* requiring that 90% of an underlying index's numerical value and at least 80% of the total number of component securities meet the criteria for standardized options trading set forth in Amex Rule 915. In connection with foreign-based indexes, this requirement essentially prohibits the use of the generic listing standard for Index Securities that are linked to, or based on, the performance of a foreign or international index. The Exchange submits that this was not the intention of the generic listing standard, and therefore, proposes a limited exception to the options eligibility requirement for component securities of an underlying index. We believe this proposed rule change will permit a number of foreign or international indexes to be the subject of Index Securities listed and traded on the Exchange. Section 107D of the *Company Guide* provides generic listing standards to permit the listing and trading of Index Securities pursuant to Rule 19b-4(e) under the 1934 Act. 5 As a result, the Exchange may list Index Securities based on an index or indexes (the “Underlying Index”) that meet the criteria set forth in paragraph
(g)of section 107D of the *Company Guide* . Specifically, an Underlying Index is required to either be
(i)an index meeting the specific criteria set forth in Section 107D(g); or
(ii)an index previously approved for the trading of options or other derivative securities by the Commission under section 19(b)(2) of the 1934 Act and rules thereunder. 5 *See* Securities Exchange Act Release No. 51563 (April 15, 2005), 70 FR 21257 (April 25, 2005). The application of Amex Rule 915 in connection with foreign-based indexes is especially problematic as a result of the requirement in the Rule that requires an underlying security to be duly registered and be an “NMS stock” as defined in Rule 600 of Regulation NMS under the Securities Exchange Act of 1934 (the “1934 Act”). 6 In addition, the issuer of an underlying foreign security is unlikely to be able to comply with all applicable requirements of the 1934 Act as required by Rule 915. 6 NMS stock is defined as an “NMS security” other than an option. “NMS security” is defined as any security or class of securities for which transaction reports are collected, processed and made available pursuant to an effective transaction reporting plan other than options. In addition, although foreign securities may meet the minimum market capitalization and trading volume requirements, the other criteria set forth Rule 915 will be difficult for foreign securities to comply with. All of the options exchanges apply the same criteria to securities underlying exchange-traded options. These criteria relate primarily to the distribution and trading volume of the securities underlying an option 7 and, as such, are duplicative of the minimum market capitalization and trading volume requirements for securities underlying Index Securities set forth in section 107D(g)(i) and (ii). The Exchange notes that the requirement of section 107D(g) that a component included in a securities index must have had a trading volume of at least 1,000,000 shares per month over the most recent six month period 8 is significantly more stringent than the requirement of the options rules that the security have a trading volume of 2,400,000 shares over a twelve month period. However, while a significant number of securities meet the minimum market capitalization and trading volume requirements for components of securities indexes under section 107D(g), many do not meet the current criteria for standardized options trading. The Exchange believes that the explicit market capitalization and trading volume requirements of section 107D(g) are sufficient to ensure that any security underlying a series of Index Securities will have a liquid trading market. In addition, the proposed enhanced concentration limits and minimum number of components that would need to be met by an issuer in order to avail itself of the proposed exemption would significantly reduce the possibility of manipulation of the index. Based on the foregoing, the Exchange believes that the added protection of requiring that such securities be qualified for options trading is unnecessary. 7 The rules require a minimum of 7,000,000 publicly-held shares, 2,000 holders, a trading volume of 2,400,000 in the preceding 12 months and a market price of at least $3.00 per share for securities that are “covered securities” as defined in Section 18(b)(1)(A) of the Securities Act of 1933 and a market price of $7.50 for securities that are not “covered securities.” 8 Except that for each of the lowest weighted component securities in the index that in the aggregate account for no more than 10% of the weight of the index, the trading volume must be at least 500,000 shares per month in each of the last six months. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of section 6(b) of the Act. 9 Specifically, the Exchange believes the proposed rule change is consistent with the section 6(b)(5) Act 10 requirements that the rules of an exchange be designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts and, in general, to protect investors and the public interest. 9 15 U.S.C. 78f(b). 10 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The proposed rule change does not 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. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the forgoing rule change does not:
(1)Significantly affect the protection of investors or the public interest;
(2)impose any significant burden on competition; and
(3)become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act 11 and Rule 19b-4(f)(6) thereunder. 12 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b-4(f)(6). A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing. 13 However, Rule 19b-4(f)(6)(iii) 14 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because waiver will permit the Exchange to implement the proposed rule change as soon as possible thereby permitting potential issuers to avail themselves of the revised listing criteria. In addition, the Commission notes that it has recently approved a proposal by another Exchange, which included identical rule text to that proposed by Amex. 15 For these reasons, the Commission designates the proposed rule change to be operative upon filing with the Commission. 16 13 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-4(f)(6)(iii) requires that a self-regulatory organization submit to the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Commission has determined to grant the Exchange's request to waive the five-day pre-filing notice requirement. 14 *Id.* 15 *See* Securities Exchange Act Release No. 56879 (December 3, 2007), 72 FR 69271 (December 7, 2007) (NYSEArca-2007-110). 16 For the purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). At any time within 60 days of the filing of such 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. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-Amex-2007-135 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-2007-135. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of Amex. 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-2007-135 and should be submitted on or before January 22, 2008. 17 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 17 Nancy M. Morris, Secretary. [FR Doc. E7-25374 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57036; File No. SR-CHX-2007-27] Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing of Proposed Rule Change To Amend its Rule 25 To Eliminate a Requirement That a Participant Have a Formal Written Agreement To Use Another Participant's Give-Up December 21, 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 December 12, 2007, the Chicago Stock Exchange, Inc. (“CHX” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. The Commission is publishing this notice 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. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend CHX Rule 25 to eliminate a requirement that a participant have a formal written agreement to use another participant's give-up. 3 The text of this proposed rule change is available at the Exchange's Web site, *http://www.chx.com* , the Exchange's principal office, and at the Commission's Public Reference Room. 3 *See* e-mail from Ellen Neely, President and General Counsel, CHX, to Richard Holley III, Senior Special Counsel, Division of Trading and Markets, Commission, dated December 20, 2007 (defining a “give-up” as a multi-character symbol that identifies a CHX participant firm. In the context of this rule, if a participant executes a trade using another participant's give-up, the firm is identifying the other firm as a party to the trade and allocating the trade to the other firm's account for clearing). II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose When the CHX developed rules for its new trading model, it included a provision that requires a participant that executes a trade using another participant's give-up to have a written agreement authorizing the use of the give-up. The rule mirrors similar requirements in some other automated systems—it is designed to provide a measure of additional assurance that orders will clear and settle, even when they are submitted from remote locations, by firms that do not know each other. Soon after implementing its new trading model, the Exchange filed a proposal to limit the way in which the rule would apply to its institutional brokers. 4 Specifically, the Exchange sought to incorporate a new interpretation and policy that would confirm that institutional brokers could use other participants' give-ups in accordance with reasonable written order-handling procedures, without specifically requiring that a written agreement be in place. The Exchange noted in that filing that, while it believed that the rule provided an appropriate general standard, it was not intended to require a potentially substantial change in the long-standing business practices of the Exchange's institutional brokers, who often execute a trade using another participant's give-up, pursuant to instructions from such participant or its customer. 4 *See* File No. SR-CHX-2006-36. The Exchange has withdrawn this proposal. Upon further reflection, the Exchange now proposes to eliminate the “give-up agreement” rule altogether. The Exchange continues to believe that the rule sets a good business standard, but does not believe that it is appropriate to put a hard-and-fast rule to that effect in place because of its potential impact on the day-to-day business practices of some of its institutional brokers. 2. Statutory Basis The Exchange believes that the proposal is consistent with Section 6(b) of the Act 5 in general, and with Section 6(b)(5) of the Act 6 in particular, in that it is designed to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of, a free and open market and a national market system, and, in general, to protect investors and the public interest by allowing firms to develop their own business practices in connection with the execution of formal written agreements with the firms that send them orders. 5 15 U.S.C. 78f(b). 6 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 purpose of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received from Members, Participants or Others The Exchange has neither solicited nor received written comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding, or
(ii)as to which Amex consents, the Commission will: A. By order approve such proposed rule change; or B. Institute proceedings to determine whether the proposed rule change should be disproved. 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-CHX-2007-27 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-CHX-2007-27. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal offices 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-CHX-2007-27 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 7 7 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E7-25373 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57033; File No. SR-FINRA-2007-036] Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of Proposed Rule Change to Make Technical Amendments to the Uniform Application for Securities Industry Registration or Transfer (“Form U4”), the Uniform Termination Notice for Securities Industry Registration (“Form U5”) and the Uniform Branch Office Form (“Form BR”) December 21, 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 December 18, 2007, Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared substantially by FINRA. FINRA filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which renders it 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). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change FINRA is proposing to make technical amendments to the Uniform Application for Securities Industry Registration or Transfer (“Form U4”), the Uniform Termination Notice for Securities Industry Registration (“Form U5”) and the Uniform Branch Office Form (“Form BR”) (hereinafter referred to as “Forms”). 5 The technical amendments, among other things, reflect NASD's change in corporate name to FINRA and update the current list of self-regulatory organizations (“SROs”), government jurisdictions and registration categories listed on the Forms. The proposed revised Forms are available at FINRA, and the Commission's Public Reference Room. FINRA is not proposing any changes to rule text with the proposed rule change. 5 Representatives of broker-dealers, investment advisers or issuers of securities must use the Form U4 to become registered in the appropriate jurisdictions and/or with appropriate SROs. The Form U5 is used to terminate the registration of an individual in the various SROs and jurisdictions. The Form BR is used by broker-dealers and investment advisers for branch office registration, notification, closing or withdrawal. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, FINRA 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. FINRA 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 proposed rule change will make technical amendments to the Forms. First, the Forms will be amended to reflect changes in certain SRO names. In particular, references to NASD in the Forms will be replaced with references to FINRA, as appropriate. 6 The SRO registration sections of the Forms U4 and U5 also will be amended to:
(1)Add “NQX,” the acronym for the Nasdaq Stock Market LLC, which was approved by the Commission as a national securities exchange on January 13, 2006; 7 and
(2)reflect the name change of the Pacific Exchange, Inc. to NYSE Arca, Inc. by replacing “PCX” with “ARCA.” 8 6 FINRA was created on July 30, 2007 through the consolidation of NASD and the member regulation, enforcement and arbitration functions of NYSE Regulation. 7 *See* Securities Exchange Act Release No. 53128 (January 13, 2006), 71 FR 3550 (January 23, 2006). 8 *See* Securities Exchange Act Release No. 53615 (April 7, 2006), 71 FR 19226 (April 13, 2006) (File No. SR-PCX-2006-24) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change and Amendments No. 1 and 2 Thereto To Change the Names of the Pacific Exchange, Inc., PCX Equities, Inc., PCX Holdings, Inc., and the Archipelago Exchange, L.L.C.). Second, FINRA is proposing to amend Section 5 and Section 5B of the Forms U4 and U5, respectively, to update the list of government jurisdictions participating through the Central Registration Depository (CRD®) to include the U.S. Virgin Islands, which joined the CRD® system as a participating jurisdiction earlier this year. FINRA also is making conforming changes to the definition of “jurisdiction” to include the U.S. Virgin Islands. The SEC added the U.S. Virgin Islands as a jurisdiction on Forms BD and BDW in technical amendments to those forms in April 2007. 9 9 *See* Securities Exchange Act Release No. 55643 (April 19, 2007) 72 FR 20223 (April 24, 2007) (Technical Amendments to Form BD and Form BDW) (“Release”). In Footnote 6 of the Release, the SEC stated that adding the U.S. Virgin Islands to Forms BD and BDW will “facilitate the use of these forms by broker-dealers and would eliminate the need for separate paper filings of registration forms by broker-dealers in the United States Virgin Islands.” Similarly, the proposed changes to the Forms will enable firms to register their associated persons electronically through CRD. Finally, FINRA is proposing to update the list of examination and registration categories to include:
(1)MM—Market Maker Authorized Trader—Options (S44);
(2)OT—Authorized Trader; and
(3)MT—Market Maker Authorized Trader—Equities (S7). 10 FINRA is proposing to remove the SF-Single Stock Futures
(S43)registration category and the Series 43 examination option in Section 7 of Form U4 and Section 5A of Form U5, 11 as the category and examination were not developed by FINRA (then NASD); continuing education requirements have been deemed sufficient for registrants engaging in securities futures business. 12 FINRA also is proposing to remove the Series 12 examination, which was rescinded by the NYSE in May 2007. 13 10 *See* Securities Exchange Act Release No. 55446 (March 12, 2007), 72 FR 13155 (March 20, 2007) (SR-NYSEArca-2006-51) (Order Granting Approval of Propose Rule Change Relating to Amendments to Registration Rules of NYSE Arca, Inc.). 11 Commission corrected reference to where the removal of the reference to SF-Single Stock Futures
(S43)registration category occurs in Form U5. 12 *See* Securities Exchange Act Release No. 48932 (December 16, 2003), 68 FR 74674 (December 24, 2003) (SR-NASD-2003-186) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the National Association of Securities Dealers, Inc. Relating to the Administration of Qualification Examinations on Security Futures). *See also* Securities Exchange Act Release No. 54617 (October 17, 2006), 71 FR 62498 (October 25, 2006) (SR-NASD-2006-118) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Extend the Date by Which Eligible Registrants Must Complete Firm—Element Continuing Education to Qualify to Engage in a Securities Futures Business). 13 *See* Securities Exchange Act Release No. 55670 (April 25, 2007), 72 FR 24350 (May 2, 2007) (SR-NYSE-2007-41) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Eliminate the Securities Manager Examination (Series 12)). FINRA is filing this proposed rule change for immediate effectiveness. FINRA will announce the effective date of the proposed rule change in a *Regulatory Notice* . FINRA anticipates that the amended Forms will be available in February 2008. 2. Statutory Basis FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act, 14 which requires, among other things, that FINRA rules must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. FINRA is amending the Forms to, among other things, reflect its new corporate name and update the currently out-of-date list of SROs, government jurisdictions and registration categories listed in the Forms. 14 15 U.S.C. 78o-3(b)(6). B. Self-Regulatory Organization's Statement on Burden on Competition FINRA 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 FINRA has neither solicited nor received written comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing proposed rule change 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, if consistent with the protection of investors and public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Act 15 and Rule 19b-4(f)(6) thereunder. 16 15 15 U.S.C. 78s(b)(3)(A). 16 17 CFR 240.19b-4(f)(6). 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. 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-FINRA-2007-036 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-FINRA-2007-036. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of FINRA. 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-FINRA-2007-036 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 17 17 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E7-25370 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57032; File No. SR-ISE-2007-73] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Elimination of the Short Sale “tick” and Price Tests December 21, 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 August 21, 2007, the International Securities Exchange, LLC (“ISE” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. On October 26, 2007, ISE filed Amendment No. 1 to the proposed rule change. 3 The Exchange has designated the proposed rule change as constituting a “non-controversial” rule change under paragraph (f)(6) of Rule 19b-4 under the Act, 4 which renders the proposal effective upon receipt of this filing by the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 Amendment No. 1 supersedes and replaces the original filing in its entirety. 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend various ISE rules to conform to recent SEC amendments to Rule 10a-1 under the Act and Regulation SHO that eliminated SEC and self-regulatory organization (“SRO”) short sale “tick” and price tests. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and *http://www.ise.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 IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of Amendment No. 1 to this filing is to amend the proposed rule text to:
(1)Allow for the execution of short sale orders during the opening process;
(2)correct an incorrect cross reference to a Regulation SHO provision; and
(3)to remove the text proposing to delete a provision of Rule 2129 (MidPoint Match). On June 13, 2007, the SEC voted to adopt amendments to Rule 10a-1 under the Act and Regulation SHO to remove the “tick” test of Rule 10a-1 and any short sale price test of any SRO. As a result of the SEC's action, the ISE is seeking to conform its rules accordingly by rescinding ISE Rules 1407, which governs short sale transactions in Nasdaq Securities, and 2113(a) and (b), which contains a “tick” test applicable to short sales effected on the ISE, as well as to make conforming “housekeeping” changes to certain other rules. The Exchange proposes to remove references to the execution of short sale orders, as well as remove the “short exempt” marking requirements from the rules. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act 5 in general and furthers the objectives of section 6(b)(5) 6 in particular in that the Exchange's proposed rules are designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest. 5 15 U.S.C. 78f(b). 6 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The proposed rule change does not 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 The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become immediately effective pursuant to section 19(b)(3)(A) of the Act 7 and Rule 19b-4(f)(6) 8 thereunder because it does not:
(1)Significantly affect the protection of investors or the public interest;
(2)impose any significant burden on competition; and
(3)become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate. At any time within sixty
(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. 7 15 U.S.C. 78s(b)(3)(A). 8 17 CFR 240.19b-4(f)(6). The Exchange requests that the Commission waive the 5-day pre-filing notice requirement and the 30-day operative delay period for “non-controversial” proposals under Exchange Act Rule 19b-4(f)(6) and make the proposed rule change effective and operative upon filing with the Commission. The Commission believes such waivers are consistent with the protection of investors and the public interest because the proposed rule change conforms ISE rules to currently effective Commission rules. 9 For this reason, the Commission designates the proposal to be operative upon filing with the Commission. 9 For purposes of waiving the 30-day pre-operative period, the Commission has considered the impact of the proposed rule change on efficiency, competition and capital formation. 15 U.S.C. 78c(f). 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-ISE-2007-73 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-ISE-2007-73. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the ISE. 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-ISE-2007-73 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 10 Nancy M. Morris, Secretary. 10 17 CFR 200.30-3(a)(12). [FR Doc. E7-25369 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57001; File No. SR-NASDAQ-2007-099] Self-Regulatory Organizations; the NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Establishing Fee for Registering and Transferring Registration of Associated Persons December 20, 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 December 20, 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 by Nasdaq. Pursuant to Section 19(b)(3)(A)(ii) of the Act 3 and Rule 19b-4(f)(2) thereunder, 4 Nasdaq has designated this proposal as establishing or changing a due, fee, or other charge, which renders the proposed rule change effective upon filing. 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)(ii). 4 17 CFR 240.19b-4(f)(2). I. Self-Regulatory Organization's Statement of the Terms of the Substance of the Proposed Rule Change Nasdaq proposes to charge fees for individual registration and transfer/re-licensing under Rule 7003(b). The proposed rule change is effective upon filing. The text of the proposed rule change is below. Proposed new language is underlined; proposed deletions are in brackets. *(a)* The following fees will be collected and retained by *FINRA* [NASD] via the Web CRD registration system for the registration of associated persons of Nasdaq members that are not also *FINRA* [NASD] members: (1)-(6) No change. *(b) The following fees will be collected via the Web CRD registration system for the registration of associated persons of Nasdaq members:* *(1) $55 for each initial Form U4 filed for the registration of a representative or principal.* *(2) $55 for each registration U4 transfer or re-licensing of a representative or principal.* 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 proposes to revise Rule 7003 and begin charging fees for registration and transfer/re-licensing of individuals. Currently, Nasdaq is one of only a few self-regulatory organizations (“SROs”) that charge membership application and renewal fees for firms, but does not charge fees for registered representatives. Subsequent to the early 2006 transition of the Nasdaq Market Center as a facility of the Financial Industry Regulatory Authority, Inc. (f/k/a National Association of Securities Dealers, Inc.) to a facility of a new SRO, Nasdaq decided to limit membership fees to firm application, renewal, and trading rights charges. However, since then Nasdaq's market share in trading New York Stock Exchange securities has increased significantly and Nasdaq will also soon launch an options exchange. Both of these events create additional regulation expense that must be supported. Nasdaq believes that the new fees are warranted to ensure that fees for registered representatives fund a portion of the cost of regulating the Nasdaq market. Nasdaq believes that even with the new fees, registered representatives that are Nasdaq members will still generally pay less than or the same amount they pay to be registered representatives in other SROs. 5 5 *See, http://www.finra.org/web/groups/reg_systems/documents/regulatory_systems/p005213.pdf* . Nasdaq proposes to begin charging $55 for individual initial registration and transfer/re-licensing on January 1, 2008. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act, 6 in general, and with Section 6(b)(4) of the Act, 7 in particular, in that it 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 the proposed Nasdaq membership fees for individual registration and transfer/re-licensing are a reasonable and equitable method of ensuring that registered representative fees funds a portion of the cost of regulating the Nasdaq market, and that the overall cost for registered representatives that are Nasdaq members is reasonable as compared with their cost of membership in other SROs. 6 15 U.S.C. 78f. 7 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 were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 8 and subparagraph (f)(2) of Rule 19b-4 thereunder. 9 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. 8 15 U.S.C. 78s(b)(3)(a)(ii). 9 17 CFR 240.19b-4(f)(2). 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-2007-099 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-2007-099. 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 the filing also will be available for inspection and copying at the principal office of Nasdaq. 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-2007-099 and should be submitted on or before January 22, 2008. 10 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 10 Florence E. Harmon, Deputy Secretary. [FR Doc. E7-25354 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57035; File No. SR-NYSE-2007-117] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Establish a New Non-Regulatory Trading Halt Condition Under Rule 123D Designated as “Investment Company Units or Index-Linked Securities” December 21, 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 December 19, 2007, the New York Stock Exchange, LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule changes as described in Items I and II below, which items have been substantially prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule changes from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Exchange Rule 123D to establish a new non-regulatory trading halt condition designated as “Investment Company Units or Index-Linked Securities.” This condition may be used with respect to Investment Company Units (commonly known as exchange-traded funds (“ETFs”)) and index-linked securities on or after January 1, 2008, to facilitate the closing of the trading room in which such securities are traded and the transfer of the listing of all such securities to NYSE Arca, Inc. (“NYSE Arca”). Any orders received by NYSE in a security subject to an “Investment Company Units or Index-Linked Securities” condition will be routed to NYSE Arca where they will be traded in accordance with the rules governing that market. The text of the proposed rule change is available on the NYSE's Web site at *http://www.nyse.com,* at the Office of the Secretary of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NYSE 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 As part of its strategic business planning, NYSE Euronext is seeking to move the listing and trading of all index-linked securities and ETFs from the Exchange to NYSE Arca by December 31, 2007. The Exchange has requested issuers of ETFs and index-linked securities to voluntarily delist those securities from NYSE and list them on NYSE Arca. The Exchange intends to close down the trading room in which ETFs and index-linked securities are traded on the Exchange floor on December 31, 2007. Upon closing of this trading room, there will no longer be any trading posts on the Exchange floor equipped with the appropriate technology to enable specialists to make an effective market in ETFs or index-linked securities. As a consequence, the Exchange is concerned that, while all of the issuers of ETFs and index-linked securities have agreed to such transfer, the transfer of a small number of ETFs and index-linked securities may not have been completed by December 31, 2007. To avoid the excessive cost involved in keeping the trading room open for a very small number of securities, the Exchange proposes to amend Rule 123D to establish a new non-regulatory trading halt condition designated as “Investment Company Units or Index-Linked Securities.” This condition may be used with respect to ETFs or index-linked securities on or after January 1, 2008, to facilitate the closing of the trading room in which such securities are traded and the transfer of the listing of all such securities to NYSE Arca. On or after January 1, 2008, any ETFs or index-linked securities that remain listed on NYSE will be subject to a trading halt pursuant to the Rule 123D “Investment Company Units or Index-Linked Securities” condition. Any orders received by NYSE in a security subject to this condition will be routed to NYSE Arca where the securities will be traded in accordance with the rules governing that market. 2. Statutory Basis The proposed rule change is consistent with Section 6(b) of the Act 3 in general, and furthers the objectives of Section 6(b)(5) of the Act 4 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 mechanisms of a free and open market and a national market system. 3 15 U.S.C. 78f(b). 4 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 Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 5 and Rule 19b-4(f)(6) 6 thereunder because the proposal does not:
(i)Significantly affect the protection of investors or the public interest;
(ii)impose any significant burden on competition; and
(iii)by its terms, become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. 5 15 U.S.C. 78s(b)(3)(A). 6 17 CFR 240.19b-4(f)(6). A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) 7 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay period. The Commission believes that waiver of the 30-day operative delay period is consistent with the protection of investors and the public interest. Specifically, in light of NYSE's plan to close the trading room on December 31, 2007, the proposed non-regulatory trading halt condition will ensure that those securities that have not transferred to NYSE Arca will continue to have an effective market. 8 The Commission notes that these securities would continue to trade on a national securities exchange. 7 17 CFR 240.19b-4(f)(6)(iii). 8 For purposes only of waiving the operative delay for this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such proposed 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. 9 9 15 U.S.C. 78s(b)(3)(C). 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-NYSE-2007-117 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-NYSE-2007-117. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of 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-NYSE-2007-117 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 10 10 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E7-25376 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57029; File No. SR-NYSEArca-2007-68] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change as Modified by Amendment No. 1 Thereto To Trade Shares of the GreenHaven Continuous Commodity Index Fund Pursuant to Unlisted Trading Privileges December 21, 2007. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on July 16, 2007, NYSE Arca, Inc. (“Exchange”), through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”), 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 December 21, 2007, the Exchange filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons and to approve the amended proposal on an accelerated basis. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange, through its wholly-owned subsidiary NYSE Arca Equities, proposes to trade pursuant to unlisted trading privileges (“UTP”) shares (“Shares”) of the GreenHaven Continuous Commodity Index Fund (“Fund”) pursuant to Commentary .02 to NYSE Arca Equities Rule 8.200. The text of the proposed rule change is available at *http://www.nyse.com,* the Exchange's principal office, and the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Pursuant to Commentary .02 to NYSE Arca Equities Rule 8.200, the Exchange may approve for listing and trading trust-issued receipts (“TIRs”) investing in shares or securities (“Investment Shares”) that hold investments in any combination of futures contracts, options on futures contracts, forward contracts, commodities, swaps or high-credit-quality short-term fixed income securities or other securities. The Exchange proposes to trade the Shares pursuant to UTP under Commentary .02 to NYSE Arca Equities Rule 8.200. The Shares represent beneficial ownership interests in the net assets of the GreenHaven Continuous Commodity Index Tracking Master Fund (“Master Fund”), consisting solely of the common units of beneficial interest (“Master Fund Units”). The Commission has approved a proposed rule change to list and trade the Shares on the American Stock Exchange LLC (“Amex”). 3 3 *See* Securities Exchange Act Release No. 56969 (December 14, 2007), 72 FR 72424 (December 20, 2004) (SR-Amex-2007-53) (“Amex Order”). *See also* Securities Exchange Act Release No. 56802 (November 16, 2007), 72 FR 65994 (November 26, 2007) (SR-Amex-2007-53) (“Amex Proposal”). The investment objective of the Fund and the Master Fund is to reflect the performance of the Continuous Commodity Total Return Index (“Index” or “CCI-TR”) 4 over time, less the expenses of the operations of the Fund and the Master Fund. The Fund will pursue its investment objective by investing substantially all of its assets in the Master Fund. The Master Fund will pursue its investment objective by investing in a portfolio of exchange-traded futures contracts (“Commodity Futures Contracts”) on the commodities comprising the Index (“Index Commodities”). The Master Fund will also hold cash and U.S. Treasury securities for deposit with the Master Fund's Commodity Broker as margin and other high-credit-quality short-term fixed income securities. The Master Fund's portfolio is managed to reflect the performance of the Index over time. 5 4 Reuters America LLC (“Reuters”) is the owner, publisher, and custodian of CCI-TR, which represents a total return version of the original Commodity Research Bureau (“CRB”) Index. The Index is widely viewed as a broad measure of overall commodity price trends because of the diverse nature of the Index's constituent commodities. The CCI-TR consists of 17 commodity futures prices. The 17 commodities are currently: corn, wheat, soybeans, live cattle, lean hogs, gold, silver, copper, cocoa, coffee, sugar #11, cotton, orange juice, platinum, crude oil, heating oil, and natural gas. The Index is calculated to produce an unweighted geometric mean of the individual commodity price relatives, *i.e.* , a ratio of the current price to the base year average price. The base year for the CCI-TR is 1982, with a starting value of 100. 5 The Funds will not be subject to registration and regulation under the Investment Company Act of 1940 (“1940 Act”). The Master Fund will not be “actively managed,” but instead will seek to track the performance of the CCI-TR. To maintain the correspondence between the composition and weightings of the Index Commodities comprising the Index, GreenHaven Commodity Services LLC (“Managing Owner”) 6 may adjust the portfolio on a daily basis to conform to periodic changes in the identity and/or relative weighting of the Index Commodities. The Managing Owner will also make adjustments and changes to the portfolio in the case of significant changes to the Index. 6 GreenHaven Commodity Services LLC, a Delaware limited liability company, will serve as the Managing Owner of the Fund and the Master Fund. The Managing Owner will serve as the commodity pool operator (“CPO”) and commodity trading advisor (“CTA”) of the Fund and the Master Fund. The Managing Owner is registered as a CPO and CTA with the Commodity Futures Trading Commission (“CFTC”) and is a member of the National Futures Association (“NFA”). Dissemination and Availability of Information About the Underlying Index, Underlying Futures Contracts and the Shares According to the Amex Proposal, Reuters is the owner, publisher, and custodian of CCI-TR, which represents a total return version of the ninth revision (as of 1995) of the original Commodity Research Bureau
(CRB)Index. Values of the underlying Index are computed by Reuters and widely disseminated every 15 seconds during Amex's trading hours, which correspond to the Exchange's Core Trading Session. 7 CCI-TR is calculated to offer investors a representation of the investable returns that an investor should expect to receive by attempting to replicate the CCI index by buying the respective commodity futures and collateralizing their investment with U.S. Government securities ( *i.e.* , 90-day T-Bills). The CCI-TR takes into account the economics of rolling listed commodity futures forward to avoid delivery and maintain exposure in liquid contracts. To achieve the objectives of the index, Reuters has established rules for calculation of the Index. Specifically, only settlement and last-sale prices are used in the Index's calculation; bids and offers are not recognized—including limit-bid and limit-offer price quotes. Where no last-sale price exists, typically in the more deferred contract months, the previous days' settlement price is used. 7 The Shares will trade on the NYSE Arca Marketplace as set forth in NYSE Arca Equities Rule 7.34(a), which provides that exchange-traded funds shall trade from 4 a.m. to 8 p.m. Eastern time (“ET”) (including the Opening Trading Session (4 a.m. to 9:30 a.m. ET), the Core Trading Session (9:30 a.m. to 4:15 p.m. ET), and the Late Trading Session (4:15 p.m. to 8 p.m. ET). [?USGPO Galley End:?] According to the Amex Proposal, the Managing Owner represents that it will seek to arrange to have the Index calculated and disseminated on a daily basis through a third party if the Index Sponsor ceases to calculate and disseminate the Index. If, however, the Managing Owner is unable to arrange the calculation and dissemination of the Index, the Amex has represented in the Amex Proposal that it will undertake to delist the Shares. In such event, the Exchange would cease trading the Shares. The disseminated value of the Index will not reflect changes to the prices of the Index Commodities between the close of trading of the various Commodity Futures Contracts and the close of trading of the Core Trading Session at the Exchange at 4:15 p.m. ET as well as the Exchange's Opening Session and Late Trading Session. In addition, Reuters and Amex on their respective Web sites will provide any adjustments or changes to the Index. The daily settlement prices for each of the Commodity Futures Contracts held by the Master Fund are publicly available on the NYBOT, New York Mercantile Exchange (“NYMEX”), Chicago Mercantile Exchange (“CME”), and Chicago Board of Trade (“CBOT”) Web sites. 8 In addition, various data vendors and news publications publish futures prices and data. Futures contract quotes and last-sale information for the Commodity Futures Contracts on the Index Commodities is widely disseminated through a variety of market data vendors worldwide, including Bloomberg and Reuters. In addition, complete real time data for the Commodity Futures Contracts is available by subscription from Reuters and Bloomberg. The various futures exchanges also provide delayed futures information on current and past trading sessions and market news free of charge on their respective Web sites. The contract specifications for each Commodity Futures Contract are also available from the various futures exchanges on their Web sites as well as other financial informational sources. 8 *See www.nybot.com, www.nymex.com, www.cme.com, and www.cbot.com* . The Web site for the Fund and/or Amex, which are publicly accessible at no charge, will contain the following information:
(1)The current NAV per Share daily and the prior business day's NAV per Share and the reported closing price;
(2)the midpoint of the bid-ask price 9 in relation to the NAV as of the time the NAV per Share is calculated (“Bid-Asked Price”);
(3)calculation of the premium or discount of such price against the NAV;
(4)data in chart form displaying the frequency distribution of discounts and premiums of the Bid-Ask Price against the NAV per Share, within appropriate ranges for each of the four previous calendar quarters;
(5)the Prospectus; and
(6)other applicable quantitative information. 9 The bid-ask price is determined using the highest bid and lowest offer as of the time of calculation of the NAV. According to the Amex Proposal, Amex will disseminate for the Fund on a daily basis by means of CTA/CQ High Speed Lines information with respect to the corresponding Indicative Fund Value (as discussed below), the recent NAV per Share and the number of Shares outstanding. Amex will also make available on its Web site daily trading volume of the Shares, closing prices of the Shares, and the NAV per Share. The closing prices and settlement prices of the Commodity Futures Contracts held by the Master Fund are also readily available from the NYMEX, CBOT, CME, and NYBOT; automated quotation systems; published or other public sources; or on-line information services such as Bloomberg or Reuters. In addition, Amex represented in the Amex Proposal that it will provide a hyperlink on its Web site at *www.amex.com* to the CCI-TR's Web site at *www.crbtrader.com* . The Bank of New York (“Administrator”) calculates and disseminates, once each trading day, the NAV per Share to market participants. Amex has represented that it will obtain a representation (prior to listing of the Fund) from the Trust that the NAV per Share will be calculated daily and made available to all market participants at the same time. In addition, the Administrator causes to be made available on a daily basis the corresponding cash deposit amounts to be deposited in connection with the issuance of the respective Shares. In addition, other investors can request such information directly from the Administrator, and which will be provided upon request. To provide updated information relating to the Fund for use by investors, professionals, and persons wishing to create or redeem the Shares, Amex will disseminate, through the facilities of CTA, an updated Indicative Fund Value for the Fund, according to the Amex Proposal. The Indicative Fund Value will be disseminated on a per-Share basis at least every 15 seconds from 9:30 a.m. to 4:15 p.m. ET. The Indicative Fund Value will be calculated based on the cash required for creations and redemptions ( *i.e.* , NAV x 50,000) for the Fund adjusted to reflect the price changes of the Commodity Futures Contracts and the holdings of U.S. Treasury securities and other high-credit-quality short-term fixed income securities. The Indicative Fund Value will not reflect changes to the price of an underlying commodity between the close of trading of futures contracts at the relevant futures exchanges and the close of trading of the Core Trading Session on the Exchange at 4:15 p.m. ET. The Indicative Fund Value will also not reflect changes to the price of an underlying commodity in the Opening Trading Session and the Late Trading Session. The value of a Share may accordingly be influenced by non-concurrent trading hours between Exchange and the various futures exchanges on which the futures contracts based on the Index commodities are traded. While the Shares will trade on the Exchange from 4 a.m. to 8 p.m. ET, the trading hours for each of the Index commodities underlying the futures contracts will vary. While the markets for futures trading for each of the Index commodities is open, the Indicative Fund Value can be expected to closely approximate the value per-Share of the corresponding Basket Amount. However, during Exchange trading hours when the Commodity Futures Contracts have ceased trading, spreads and resulting premiums or discounts may widen and, therefore, increase the difference between the price of the Shares and the NAV of the Shares. The Indicative Fund Value on a per-Share basis disseminated during the Exchange's Core Trading Session, Opening Trading Session, and Late Trading Session should not be viewed as a real-time update of the NAV, which is calculated only once a day. UTP Trading Criteria The Exchange represents that it will cease trading the Shares of the Fund if:
(1)The listing market stops trading the Shares because of a regulatory halt similar to a halt based on NYSE Arca Equities Rule 7.12 or a halt because the Indicative Fund Value or the value of the Index is no longer available at least every 15 seconds; or
(2)the listing market delists the Shares. Additionally, the Exchange may cease trading the Shares if such other event shall occur or condition exists which in the opinion of the Exchange makes further dealings on the Exchange inadvisable. UTP trading in the Shares is also governed by the trading halts provisions of NYSE Arca Equities Rule 7.34 relating to temporary interruptions in the calculation or wide dissemination of the Intraday Indicative Value (which would encompass the Indicative Fund Value) or the value of the underlying index. Trading Rules The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. ET. The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. The trading of the Shares will be subject to Commentary .02(e)(1)-(4) to NYSE Arca Equities Rule 8.200, which sets forth certain restrictions on ETP Holders acting as registered Market Makers in TIRs that invest in Investment Shares to facilitate surveillance. *See* “Surveillance” below for more information. With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include:
(1)The extent to which trading is not occurring in the underlying Commodity Futures Contracts, or
(2)whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares could be halted pursuant to the Exchange's “circuit breaker” rule 10 or by the halt or suspension of trading of the underlying Commodity Futures Contracts. 10 *See* NYSE Arca Equities Rule 7.12. Surveillance The Exchange intends to utilize its existing surveillance procedures applicable to derivative products to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules. The Exchange's current trading surveillance focuses on detecting when securities trade outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations. Commentary .02(e)(1) to NYSE Arca Equities Rule 8.200 requires that the ETP Holder acting as a registered Market Maker in the Shares provide the Exchange with information relating to its trading in the underlying physical asset or commodity, related futures or options on futures, or any other related derivatives. Commentary .02(e)(4) to NYSE Arca Equities Rule 8.200 prohibits the ETP Holder acting as a registered Market Maker in the Shares from using any material nonpublic information received from any person associated with an ETP Holder or employee of such person regarding trading by such person or employee in the underlying physical asset or commodity, related futures or options on futures, or any other related derivative (including the Shares). In addition, Commentary .02(e)(1) to NYSE Arca Equities Rule 8.200 prohibits the ETP Holder acting as a registered Market Maker in the Shares from being affiliated with a market maker in the underlying physical asset or commodity, related futures or options on futures, or any other related derivative unless adequate information barriers are in place, as provided in NYSE Arca Equities Rule 7.26. Commentary .02(e)(2)-(3) to NYSE Arca Equities Rule 8.200 requires that Market Makers handling the Shares provide the Exchange with all the necessary information relating to their trading in the underlying physical assets or commodities, related futures contracts and options thereon, or any other derivative. The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members or affiliates of the ISG. 11 In addition, the Exchange has an Information Sharing Agreement in place with NYMEX for the purpose of providing information in connection with trading in or related to futures contracts traded on the NYMEX. 11 For a list of the current members and affiliate members of ISG, *see http://www.isgportal.com* . CBOT, CME, and NYBOT are members of ISG. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. Information Bulletin Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following:
(1)The procedures for purchases and redemptions of Shares in Baskets (and that Shares are not individually redeemable);
(2)NYSE Arca Equities Rule 9.2(a), 12 which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares;
(3)how information regarding the Indicative Fund Value is disseminated;
(4)the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction;
(5)the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated indicative fund value will not be calculated or publicly disseminated; and
(6)trading information. 12 NYSE Arca Equities Rule 9.2(a) provides that an ETP Holder, before recommending a transaction, must have reasonable grounds to believe that the recommendation is suitable for the customer based on any facts disclosed by the customer as to his other security holdings and as to his financial situation and needs. Further, the rule provides, with a limited exception, that prior to the execution of a transaction recommended to a non-institutional customer, the ETP Holder shall make reasonable efforts to obtain information concerning the customer's financial status, tax status, investment objectives, and any other information that it believes would be useful to make a recommendation. In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the registration statement for the Fund. The Bulletin will also reference the fact that there is no regulated source of last-sale information regarding physical commodities, that the Commission has no jurisdiction over the trading of commodity futures contracts, and that the CFTC has regulatory jurisdiction over the trading of commodity futures contracts. The Bulletin will also discuss any exemptive, no-action, or interpretive relief granted by the Commission from Section 11(d)(1) of the Act 13 and certain rules under the Act, including Rule 10b-10, Rule 14e-5, Rule 10b-17, Rule 11d1-2, Rules 15c1-5 and 15c1-6, and Rules 101 and 102 of Regulation M under the Act. 13 15 U.S.C. 78k(d)(1). [?USGPO Galley End:?] The Bulletin will also disclose that the NAV for the Shares will be calculated after 4 p.m. Eastern time each trading day. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, 14 in general, and Section 6(b)(5), 15 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. 14 15 U.S.C. 78f(b). 15 15 U.S.C. 78f(b)(5). In addition, the Exchange believes that the proposed rule change is consistent with Rule 12f-5 under the Act 16 because it deems the Shares to be equity securities, thus rendering the Shares subject to the Exchange's rules governing the trading of equity securities. 16 17 CFR 240.12f-5. B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments on the proposed rule change were neither solicited nor received. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File No. SR-NYSEArca-2007-68 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2007-68. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2007-68 and should be submitted on or before January 22, 2008. 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, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 17 In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act, 18 which requires that an exchange have rules designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. The Commission believes that this proposal should benefit investors by increasing competition among markets that trade the Shares. 17 In approving this rule change, the Commission notes that it has considered the proposal's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 18 15 U.S.C. 78f(b)(5). [?USGPO Galley End:?] In addition, the Commission finds that the proposal is consistent with Section 12(f) of the Act, 19 which permits an exchange to trade, pursuant to UTP, a security that is listed and registered on another exchange. 20 The Commission notes that it previously approved the listing and trading of the Shares on Amex. 21 The Commission also finds that the proposal is consistent with Rule 12f-5 under the Act, 22 which provides that an exchange shall not extend UTP to a security unless the exchange has in effect a rule or rules providing for transactions in the class or type of security to which the exchange extends UTP. The Exchange has represented that it meets this requirement because it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. 19 15 U.S.C. 78 *l* (f). 20 Section 12(a) of the Act, 15 U.S.C. 78 *l* (a), generally prohibits a broker-dealer from trading a security on a national securities exchange unless the security is registered on that exchange pursuant to Section 12 of the Act. Section 12(f) of the Act excludes from this restriction trading in any security to which an exchange “extends UTP.” When an exchange extends UTP to a security, it allows its members to trade the security as if it were listed and registered on the exchange even though it is not so listed and registered. 21 *See supra* note 3. 22 17 CFR 240.12f-5. The Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act, 23 which sets forth Congress' finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Quotations for and last-sale information regarding the Shares are disseminated through the facilities of the CTA. The Exchange represents that values of the underlying Index are computed by Reuters and widely disseminated every 15 seconds. Furthermore, the Indicative Fund Value for the Fund will be updated on a per-Share basis and published via the facilities of the CTA/CQ High Speed Lines on a 15-second delayed basis throughout the Exchange's Core Trading Session. The Exchange also represents that Amex will disseminate information with regard to the recent NAV per Share and Shares outstanding on a daily basis by means of the CTA/CQ High Speed Lines. 23 15 U.S.C. 78k-1(a)(1)(C)(iii). The Commission also believes that the Exchange's trading halt rules are reasonably designed to prevent trading in the Shares when transparency is impaired. If the listing market halts trading when the Indicative Fund Value is not being calculated or disseminated, the Exchange would halt trading in the Shares. The Exchange has represented that it would follow the procedures with respect to trading halts set forth in NYSE Arca Equities Rule 7.34. The Commission notes that, if the Shares should be delisted by the listing exchange, the Exchange would no longer have authority to trade the Shares pursuant to this order. In support of this proposal, the Exchange has made the following representations: 1. The Exchange's surveillance procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules. 2. Prior to the commencement of trading, the Exchange would inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. 3. The Information Bulletin also would discuss the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction. 4. Trading in the Shares will be subject to Commentary .02(e)(1)-(4) to NYSE Arca Equities Rule 8.200, which sets forth certain restrictions on ETP Holders acting as registered Market Makers in TIRs that invest in Investment Shares to facilitate surveillance. This approval order is based on these representations. The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the **Federal Register** . As noted previously, the Commission previously found that the listing and trading of the Shares on Amex is consistent with the Act. The Commission presently is not aware of any regulatory issue that should cause it to revisit that finding or would preclude the trading of the Shares on the Exchange pursuant to UTP. Therefore, accelerating approval of this proposal should benefit investors by creating, without undue delay, additional competition in the market for the Shares. V. Conclusion *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 24 that the proposed rule change (SR-NYSEArca-2007-68), as amended, be and it hereby is, approved on an accelerated basis. 24 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 25 25 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E7-25368 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57018; File No. SR-Phlx-2007-68] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Notice of Filing of a Proposed Rule Change and Amendment No. 1 Thereto Relating to Customized U.S. Dollar-Settled Foreign Currency Options December 20, 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 September 6, 2007, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) 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 substantially prepared by Phlx. On December 18, 2007, the Exchange submitted Amendment No. 1 to the proposed rule change. 3 The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 Amendment No. 1 replaces the original filing in its entirety. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Phlx proposes to amend Rule 1079, FLEX Index and Equity Options, to permit trading of U.S. dollar-settled foreign currency options (“FCOs”) with certain individually tailored features. 4 4 The term “FLEX” is a trademark of the Chicago Board Options Exchange, Inc. The text of the proposed rule change is available at Phlx, the Commission's Public Reference Room, and *http://www.phlx.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, Phlx 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. Phlx 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 purpose of the proposed rule change is to permit the trading of U.S. dollar-settled FCOs with individually tailored expiration dates and exercise prices. 5 Currently, a variety of customized physical delivery FCOs are traded on the Exchange pursuant to Rule 1069, Customized Foreign Currency Options. 6 Users currently have the ability with respect to physical delivery FCOs to customize the strike price and quotation method and to choose underlying and base currency combinations from among various Exchange listed currencies, including the U.S. dollar. Customized physical delivery FCOs were originally introduced to provide investors with the flexibility and variety offered in the over-the-counter market as well as the benefits attributed to an exchange auction market as they hedge their exchange rate risks. 5 The Options Clearing Corporation (“OCC”) will be the issuer and guarantor of these new options. 6 *See* Securities Exchange Act Release No. 34925 (November 1, 1994), 59 FR 55720 (November 8, 1994) (approving SR-Phlx-94-18). Customized physical delivery FCOs trade without a specialist or limit order book pursuant to Rule 1069. Individually tailored equity and index options may also be traded pursuant to Rule 1079, FLEX Index and Equity Options. 7 The Exchange now proposes to amend Rule 1079 to permit some individual tailoring of U.S. dollar- settled FCOs as well. 8 Individually tailored U.S. dollar-settled FCOs would be known as “FLEX currency options” and Rule 1079 would be amended to include FLEX currency options in its title. Any references in Exchange rules or proposed rule changes to “FLEX currency options” would apply *only* to U.S. dollar-settled FCOs that are proposed to trade pursuant to Rule 1079. “FLEX currency options” would *not* include customized physical delivery FCOs that trade pursuant to Rule 1069. 7 *See* Securities Exchange Act Release No. 39549 (January 14, 1998), 63 FR 3601 (January 23, 1998) (adopting SR-Phlx-96-38). 8 Corresponding changes are proposed to be made to Options Floor Procedure Advice F-28, Trading FLEX Index and Equity Options. The Exchange is not proposing to amend Rule 1069, Customized Foreign Currency Options. Rule 1069 will continue to apply to physical delivery FCO only. Pursuant to this proposed rule change, the Exchange would be able to offer market participants the ability to trade FLEX currency options with non-standardized expiration dates. At present, pursuant to Exchange Rule 1012, Series of Options Open for Trading, FCO users can only trade U.S. dollar-settled FCO contracts with standardized terms, including standardized expiration dates. Thus, U.S. dollar-settled FCO contracts currently may only be traded with expirations at 1, 2, 3, 6, 9 and 12 months. The Exchange is proposing to revise this previously-standard term by allowing FLEX currency option contracts to expire on any month, business day and year within two years, provided that a FLEX currency option would not be permitted to expire on any day that falls on or within two business days prior or subsequent to an expiration day for a non-FLEX U.S. dollar-settled FCO on the same underlying currency or on any day on which the Federal Reserve Bank is not scheduled to publish its Noon Buying Rate. 9 This flexibility would enable market participants to hedge their exchange rate exposure more accurately by trading a contract that expires on a trading day of their choosing. All FLEX currency options with customized expiration dates would expire at 11:59 p.m. eastern time on their designated expiration date and cease trading at 10:15 a.m. eastern time that day. 10 9 *See* proposed amendment to Rule 1079(a)(6)(A). 10 *Id. See also* proposed amendment to Rule 1079(a)(9)(C). Pursuant to Rule 1079(a)(3), users will also be able to individually tailor the strike prices of U.S. dollar-settled FCOs. Strike prices need not be consistent with strike price intervals permissible for non-FLEX U.S. dollar-settled FCOs. The strike price may be specified in terms of a specific dollar amount rounded to the nearest ten thousandth of a dollar (expressed without reference to the first two decimal places) for FLEX currency options other than the Japanese yen currency option. FLEX options on the Japanese yen may be specified in terms of a specific dollar amount rounded to the nearest one millionth of a dollar (expressed without reference to the first four decimal places). FLEX U.S. dollar-settled foreign currency options will be margined at the same levels as the Exchange's non-FLEX U.S. dollar-settled foreign currency options. 11 11 *See* Phlx Rule 722. Pursuant to the proposed amendment to Rule 1079(a)(4)(B), FLEX currency options would be quoted in terms of dollars per unit of underlying foreign currency, just like the non-FLEX U.S. dollar settled FCOs. FLEX currency options may be quoted and traded in the same minimum increments that are established for non-FLEX U.S. dollar settled FCOs pursuant to Exchange Rule 1034. 12 12 *See* Rule 1034, Minimum Increments, section (a), for the minimum increments applicable to non-FLEX U.S. dollar-settled FCO. Commencing January 2, 2008, U.S. dollar-settled FCO will be quoted and traded in minimum increments of $.0001 (expressed as .01) for option contracts on the British pound, $.0001 (expressed as .01) for option contracts on the Swiss franc, $.0001 (expressed as .01) for option contracts on the Canadian dollar, $.0001 (expressed as .01) for option contracts on the Australian dollar, $.0001 (expressed as .01) for option contracts on the Euro, $.000001 (expressed as .01) for option contracts on the Japanese yen. *See* Securities Exchange Act Release No. 56933 (December 7, 2007), 72 FR 71185 (December 14, 2007) (approving SR-Phlx-2007-70). [?USGPO Galley End:?] Rule 1079(a)(9) is being amended to provide for settlement for FLEX currency options. The closing settlement value for FLEX options on the Australian dollar, the Euro and the British pound would be the day's announced Noon Buying Rate, as determined by the Federal Reserve Bank of New York on the expiration date. If the Noon Buying Rate is not announced by 5:00 p.m. eastern time, the closing settlement value would be the most recently announced Noon Buying Rate, unless the Exchange determined to apply an alternative closing settlement value as a result of extraordinary circumstances. The closing settlement value for FLEX options on the Canadian dollar, the Swiss franc and the Japanese yen would be an amount equal to one divided by the day's announced Noon Buying Rate, as determined by the Federal Reserve Bank of New York on the expiration date, rounded to the nearest .0001 (except in the case of the Japanese yen where the amount would be rounded to the nearest .000001). If the Noon Buying Rate were not announced by 5 p.m. eastern time, the closing settlement value would be based upon the most recently announced Noon Buying Rate, unless the Exchange determined to apply an alternative closing settlement value as a result of extraordinary circumstances. This settlement provision closely tracks Rule 1057, U.S. Dollar-Settled Foreign Currency Option Closing Settlement Value, applicable to non-FLEX U.S. dollar-settled FCOs. 13 FLEX currency options will be subject to the exercise-by-exception procedures of OCC. 14 13 However, Rule 1057 bases the closing settlement value for non-FLEX U.S. dollar-settled FCO on the Noon Buying Rate of the business day *prior* to expiration rather than that of the expiration date itself. 14 *See* OCC Rule 805, which sets forth the expiration date exercise procedures for options cleared and settled by the OCC. The exercise-by-exception or “Ex-by-Ex” procedure employed by OCC in OCC Rule 805 allows an OCC Clearing Member to effect a choice not to exercise an option that is in the money by the exercise threshold amount or more, or to exercise an option which has not reached the exercise threshold amount. The Exchange proposes to amend Rule 1079(a)(5), which currently permits market participants to determine whether a FLEX index or equity option will have either an American or European exercise style. 15 As amended, Rule 1079(a)(5) would continue to permit this flexibility for FLEX index and equity options, while limiting FLEX currency options to European exercise style only. The option type may be a put, call or hedge order. 16 15 An American style option may be exercised at any time up to its expiration, while a European style option can only be exercised on its expiration day. *See* Phlx Rule 1000(b)(34) and (35). 16 *See* Exchange Rules 1079(a)(2), 1000(b)(7) and 1066(f). Currently Rule 1079(c), which will also apply to FLEX currency options, provides that at least two Exchange members (ROTs and/or a Specialist) must be assigned to each FLEX option. ROTs and Specialists must apply on the appropriate Exchange form to be assigned in FLEX options. 17 An assigned ROT or assigned Specialist may choose to be assigned in a particular FLEX option. Assigned ROTs and the assigned Specialist are subject to certain obligations respecting the trading of FLEX options. For example, the affirmative and negative market making obligations of Rule 1014(c) apply. Assigned ROTs and the assigned Specialist must respond with a market respecting any FLEX option upon request by a Floor Official. However, assigned ROTs and assigned Specialists are not required to provide continuous quotes or markets at a certain minimum bid-ask differential (quote spread parameter). 17 *See* Rule 1079(c)(1) regarding Assigned ROTs and Assigned Specialists. Rule 1079(c)(1) currently applies to all FLEX options and would apply to FLEX currency options as well. If there is an assigned Specialist and an assigned ROT in a FLEX option, the FLEX option trades pursuant to the specialist system, just as non-FLEX options do on the Exchange. Only the Specialist in the non-FLEX option may be the assigned specialist in that FLEX option. However, there may not be a Specialist in FLEX options. Where there is no assigned FLEX Specialist, two assigned ROTs are required. 18 The current responsibilities of a Specialist to determine a market based on the bids and offers voiced as well as to disseminate bids/offers and trades may be handled by the Requesting Member, where there is no assigned Specialist in that FLEX option. If a trade occurs where the Requesting Member is not a participant and there is no assigned Specialist, the responsibility to submit the trade falls upon the seller or largest participant, in accordance with existing trading procedure. 19 18 The non-FLEX Specialist may be an assigned ROT in the FLEX option, or not assigned at all. 19 *See* Floor Procedure Advice F-2, Time Stamping, Matching and Access to Matched Trades. Trading of FLEX currency options will be subject to Rule 1079(b), which currently governs the trading of FLEX equity and index options. Generally, like FLEX equity and index options, FLEX currency options would be traded in accordance with many existing option rules. Rule 1079 states that although FLEX options are generally subject to the rules in the options section of the Exchange rules, to the extent that the provisions of Rule 1079 are inconsistent with other applicable Exchange rules, Rule 1079 takes precedence with respect to FLEX options. Provisions of Rule 1079 that are not limited by their terms to FLEX equity or index options would be equally applicable to FLEX currency options. 20 Thus, most of Rule 1079(b), Procedure for Quoting and Trading FLEX Options, will apply to FLEX currency options in the same way it applies to FLEX equity and index options. 20 For example, the following provisions of Rule 1079 are not restricted to FLEX equity or index options or to FLEX U.S. dollar-settled FCOs, and are therefore applicable to each of them: The introductory language of Rule 1079; Rule 1079(a)(2) which specifies permissible order types; Rule 1079(a)(6)(C) which provides that a FLEX option cannot expire on the same day that series is established at OCC; Rule 1079(a)(7) which provides that requests for quotes (“RFQs”) are to be submitted pursuant to Rule 1079(b); Rule 1079(a)(10), which generally defines the term “Requesting Member” as a member of the Exchange qualified to trade FLEX options who initiates an RFQ; Rule 1079(b), which establishes the procedure for quoting and trading FLEX options (other than Rule 1079(b)(1)(3) which is being revised to apply only to equity and index FLEX options); and Rule 1079(c), which establishes who may trade FLEX options. Rule 1079(b)(5)(B) is being amended to make that provision applicable to FLEX U.S. dollar-settled FCO just as it applies to FLEX index and FLEX equity options. The Automated Options Market (“AUTOM”) system is not available for FLEX options. 21 All FLEX options must be quoted and traded in the trading crowd of the corresponding non-FLEX option. Because FLEX options are not continuously quoted, nor are series pre-established, the variable terms of FLEX options are established by the following process. In order to initiate a transaction, a Requesting Member must submit an RFQ to the appropriate trading crowd, announcing the terms of the quote sought. The characteristics, including which terms and to what degree certain option features may be individually tailored, are outlined in Rule 1079(a). On receipt of an RFQ in proper form, the assigned Specialist or the Requesting Member causes the terms of the RFQ to be disseminated as an administrative text message through the Options Price Reporting Authority (“OPRA”). 22 RFQs, responsive quotes, booked orders and completed trades are promptly reported to OPRA and disseminated as an administrative text message. Although certain information is not required to be part of the RFQ (such as account type, crossing intention, response time and size), this information is reflected on the final order ticket. Further, the size and crossing intention must be voiced as part of voicing the RFQ. 21 The term “AUTOM” is used interchangeably with the term “Phlx XL,” the Exchange's fully electronic trading platform for options. The Exchange intends to file a separate proposed rule change to update its rules to reflect that orders are now delivered electronically over Phlx XL. 22 Operationally, the Requesting Member provides this information to data entry personnel, who enter it into Exchange systems. Following the RFQ announcement, a preset response time begins, during which members may provide responsive quotes. As stated in existing Rule 1079(b)(2), the response time, between 2 and 15 minutes, is determined by the Options Committee. 23 23 The Options Committee has established a response time of ten minutes for FLEX equity and index options. The response time for FLEX currency options would be the same as for FLEX equity and index options. Although the Options Committee is authorized to change the response time within the permissible range, any such change would be preceded by notice to the Exchange membership. Pursuant to proposed Rule 1079(a)(8), as proposed to be amended, if there is no open interest in the particular FLEX currency option series when an RFQ is submitted, the minimum size of an RFQ for FLEX currency options would be 50 contracts. If there is open interest, the minimum size of the RFQ would be 25 contracts, or the remaining size on a closing transaction, whichever is less. The minimum value size for a responsive quote, other than a responsive quote of an assigned ROT or assigned specialist, would be 50 contracts or the remaining size on a closing transaction, whichever is less. Assigned ROTs and assigned Specialists who respond to an RFQ would be required to respond to each RFQ with at least 250 contracts or the size amount requested in the RFQ, whichever is less. 24 24 These minimum sizes are different from the minimum sizes applicable to equity options and index options under existing Rule 1079(a)(8). During the response time, qualified members could provide responsive quotes to the RFQ, which may be entered, modified or withdrawn during such response time. At the end of the response time, the assigned Specialist, or if none, the Requesting Member would determine the best bid and offer (“BBO”), based on price, disseminating such market with reference to the corresponding RFQ. However, where two or more bids/offers are at parity, under Rule 1079(b)(3) bids/offers submitted by an assigned Specialist, assigned ROT or customer would have priority over the bids/offers submitted by non-assigned ROTs and by controlled accounts as defined in Phlx Rule 1014(g)(i). Following the determination of the BBO, a BBO Improvement Interval may be invoked if the Requesting Member rejects the BBO or the BBO is for less than the entire size requested. The BBO Improvement Interval is a two minute time period during which the BBO may be matched or improved. As a result of the Improvement Interval, a new BBO is established, which is disseminated with reference to the corresponding RFQ. An assigned ROT and the assigned Specialist who responded with a market during the response time may immediately join the new BBO. A trade in FLEX options cannot be executed until the end of the response time or BBO Improvement Interval. Once the response time or BBO Improvement Interval ends, the Requesting Member is given the first opportunity to trade on the market by voicing a bid/offer in the trading crowd. The Requesting Member has no obligation to accept any bid or offer for a FLEX option. If the Requesting Member rejects the BBO or the BBO size exceeds the entire size requested, another member may accept such BBO or the unfilled balance of the BBO. Acceptance of a bid/offer creates a binding contract under Exchange rules. Once the BBO is established, the RFQ remains open that trading day, unless a trade occurs, and a member may re-quote the market with respect to the open RFQ without submitting an additional RFQ. 25 If a trade occurs, a new RFQ is required. Only an assigned ROT or assigned Specialist who responded to the open RFQ during the response time or BBO Improvement Interval may immediately join the re-quoted market, thus matching for parity purposes. Neither the Requesting Member, nor the re-quoting member, is given the first opportunity to trade on the re-quoted market. 25 A re-quote does not require the submission of a new RFQ, thereby avoiding the delay of a new response time where such time may not be needed due to a recent quote. An option quoted earlier in the trading day should be easier to price, such that a new response time is not needed. Any time a market is re-quoted that day, the new BBO and any resulting trade are disseminated with reference to the original RFQ. However, once a trade occurs, a new RFQ is required. The Options Committee may determine to establish an abbreviated response time for a new RFQ, because the full ten minutes may not be required for pricing determinations. Further, as with FLEX index options and FLEX equity options, there will be a limit order book for FLEX currency options. As with FLEX index and equity options, the Specialist in the listed non-FLEX U.S. dollar-settled FCO, whether or not assigned in FLEX options, must accept FLEX orders on the FLEX book after completion of the RFQ process. As such, the Specialist would be required to monitor FLEX markets for any booked orders. The Exchange would require all Specialists in U.S. dollar-settled FCOs, whether acting as an assigned FLEX currency option Specialist or not, to maintain the FLEX book for consistency with the procedures for non-FLEX options and to prevent investor confusion. Only customer day limit orders may be placed on the FLEX currency option book. Booked orders expire at the end of each trading day. The limit price and size must be written on the RFQ ticket and disseminated as an administrative text message through OPRA. In order to trade with the book, an executing member must quote the market and announce the trade. The Exchange believes that the FLEX order book should serve as a useful tool for customers, as does the current limit order book respecting non-FLEX U.S. dollar-settled currency options. With respect to booked orders for the same FLEX currency option (that is, orders for a FLEX currency option with identical terms), Rule 1014 will apply to determine priority and parity among such orders. 26 When trading with a booked order, a member must re-quote the market and announce the trade. 26 Although the principles of price/time priority and simultaneous bids/offers at parity of Rule 1014 would apply, the enhanced specialist participation of sub-paragraphs (g)(ii) and
(iii)are not applicable to FLEX options. Generally, on the Phlx options floor, a cross may take place in accordance with Rule 1064. Crossing in FLEX currency options will be governed Rule 1079(b)(6), which currently applies to crosses in the existing FLEX equity and index options. The Requesting Member must voice the crossing intention as part of voicing the RFQ. After the BBO has been determined, the Requesting Member intending to cross must bid (or offer) at or better than the BBO. If the Requesting Member's bid/offer is at the BBO, the Requesting Member may execute 25% or a fair split, whichever is greater, of the contra-side of the order that is the subject of the RFQ. For instance, if there are two members on parity at the BBO, the Requesting Member and an assigned ROT, the Requesting Member is entitled to receive 50% of the contra-side contracts, which is a fair split, not just the 25% guaranteed minimum right of participation. The remainder of the contra-side is split in accordance with the parity/priority provision applicable to determining the BBO, such that assigned ROTs/Specialists may be afforded priority. If the Requesting Member's bid/offer improves the existing BBO, an assigned ROT or assigned Specialist who responded with a market during the response time or BBO Improvement Interval, may immediately join the Requesting Member's improved bid or offer, thus matching for parity purposes. However, the Requesting Member may execute 25% or a fair split, whichever is greater, of the contra-side of the order that is the subject of the RFQ. The remainder of the contra-side is split in accordance with the parity/priority provision applicable to determining the BBO, such that assigned ROTs/Specialists may be afforded priority. However, broker-dealer crosses and solicited orders, as defined in Rule 1064, are not eligible for the split afforded by these crossing provisions. Broker-dealer crosses and solicited orders must be announced and bid/offered, under the FLEX crossing provision. No 25% minimum guaranteed right of participation applies to solicited orders or broker-dealer/broker-dealer crosses. In addition, crossing transactions may not be subject to a minimum right of participation, because a customer-to-customer cross would not be required to yield the remainder (75%) to assigned ROTs/Specialists. Assigned ROTs and the assigned Specialist who respond with a market during the response time may join a new bid/offer voiced during the Improvement Interval and prior to a cross, provided they do so immediately and subject to preserving the priority of customer orders. Enabling assigned ROTS and the assigned Specialist to join any such new bid/offer affords them parity at that new BBO. Proposed Rule 1079(d)(3) is unique to FLEX currency options and provides that positions in FLEX U.S. dollar-settled FCOs would be aggregated with positions in non-FLEX U.S. dollar-settled FCO contracts as well as physical delivery FCO contracts for purposes of determining compliance with the position limits established by Rule 1001. Like non-FLEX U.S. dollar-settled FCOs,
(i)one British pound FLEX option contract would count as one third of a contract,
(ii)one Euro FLEX option contract would count as one sixth of a contract,
(iii)one Australian dollar FLEX option contract would count as one fifth of a contract,
(iv)one Canadian dollar FLEX option contract would count as one fifth of a contract,
(v)one Swiss Franc FLEX option contract would count as one sixth of a contract, and
(vi)one U.S. dollar-settled Japanese yen FLEX option contract would count as one sixth of a contract. 27 27 The counting of both FLEX and non-FLEX U.S. dollar-settled FCO contracts as less than one full contract reflects the fact that the size of the U.S. dollar-settled FCO contract is smaller than the Exchange's physical delivery contract on the same currencies. The position limit rules were originally adopted for the larger physical delivery contracts. Pursuant to existing Rule 1079(c)(3), no ROT or Specialist may effect any FLEX option transaction unless a Letter of Guarantee has been issued by a clearing member organization and filed with the Exchange pursuant to Rule 703 specifically accepting financial responsibility for all FLEX option transactions made by such person and such letter has not been revoked. As a rule applicable to all FLEX options, Rule 1079(c)(3) would apply to the new FLEX currency options as well. The Exchange may waive the financial requirements of this Rule in unusual circumstances. Assigned Specialists/ROTs in FLEX currency options, as well as non-assigned ROTs/Specialists in FLEX currency options, also would be required to comply with Exchange financial requirements set forth in Rule 703, Financial Responsibility and Reporting. Like other FLEX options, there would be no trading rotations in FLEX currency options, either at the opening or at the close of trading. The Exchange has determined that, initially, FLEX currency options would have the same trading hours as non-FLEX U.S. dollar-settled FCO. The Exchange would be able to establish other trading times for FLEX currency options within the regular trading hours for the non-FLEX U.S. dollar-settled FCOs, including reflecting any new trading hours for non-FLEX U.S. dollar-settled FCOs. 28 28 Under this proposal, expanding and narrowing FLEX currency trading hours within the regular trading hours of the particular product would not require a proposed rule change pursuant to Section 19(b) of the Act. The Exchange, however, would notify its members, in advance, prior to making any such change. Any proposal to expand trading hours outside of established regular trading hours would be submitted as a proposed rule change to the Commission pursuant to Section 19(b) of the Act. The Exchange also proposes to amend Floor Procedure Advice F-28, Trading FLEX Index and Equity Options, to include FLEX Currency Options in its title and to make parallel changes to those being proposed to Rule 1079(b). Exchange rules and regulations involving sales practice will be applicable to FLEX currency options. Finally, the Exchange represents that it has adequate surveillance procedures for, and systems capacity to support, the trading of FLEX currency options. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act, 29 in general, and with Section 6(b)(5) of the Act, 30 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to a free and open market and a national market system, and, in general, to protect investors and the public interest, by providing investors the ability to tailor foreign currency option contracts to suit their particular investment requirements and increased flexibility in satisfying particular investment objectives. 29 15 U.S.C. 78f. 30 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 would 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 were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which Amex consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. 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-Phlx-2007-68 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-Phlx-2007-68. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of Phlx. 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-Phlx-2007-68 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 31 31 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E7-25355 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57038; File No. SR-Phlx-2007-93] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to $5 Strike Price Intervals of Options on Exchange-Traded Fund Shares above $200 December 21, 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 December 19, 2007, the Philadelphia Stock Exchange, Inc. (“Phlx” 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 Phlx. The Exchange filed the proposal as a “non-controversial” proposed rule change pursuant to section 19(b)(3)(A) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which rendered the proposal 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). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Phlx proposes to amend Commentary .05 to Exchange Rule 1012 (“Series of Options Open for Trading”) to clarify that strike price intervals of options on Exchange-Traded Fund Shares (“ETFs”) will be $5 or greater where the strike price is over $200. 5 5 Strike price intervals for series of options on ETFs were initially established at $1 or greater where the strike price is $200 or less. *See* Securities Exchange Act Release No. 44055 (March 8, 2001), 66 FR 15310 (March 16, 2001) (SR-Phlx-2001-32) (filing silent regarding strike price intervals where the strike price is over $200). The text of the proposed rule change is available at the Phlx, the Commission's Public Reference Room, and *http://www.phlx.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 Phlx included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx 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 purpose of the proposed rule change is to clarify that strike price intervals of options on ETFs will be $5 or greater where the strike price is over $200. Commentary .05 to Phlx Rule 1012 currently states that strike price intervals of options on ETFs will be $1 or greater when the strike price of the underlying asset is $200 or less. As such, most ETF options, which have become popular investment tools, are priced at $1 strike price intervals. 6 However, some ETF options are listed at $10 strike price intervals at strike prices greater than $200. 7 According to the Exchange, within the last few months, the Phlx has received requests from Phlx traders to price ETF options at $5 strike price intervals above $200. Because the Exchange does not currently have a provision that allows ETF options to list and trade at $5 or greater strike price intervals where the strike price is more than $200, however, the Exchange has only been able to list these ETF options at $10 or greater strike price intervals. 8 This has put Phlx at a competitive disadvantage, particularly with respect to options exchanges that allow $5 strike price intervals for ETF options. 9 6 The proposal establishing strike price intervals for series of options on ETFs at $1 or greater where the strike price is $200 or less did not discuss strike price intervals where the strike price is over $200. *See* Securities Exchange Act Release No. 44055 (March 8, 2001), 66 FR 15310 (March 16, 2001)(SR-Phlx-2001-32). 7 For example, ETF options trading under the symbols ILF, FXI, MDY, and EEM are all listed at strike prices greater than $200. 8 Commentary .05(a) to Phlx Rule 1012 states, among other things, that strike prices of options may be $2.50 or greater where the strike price is $25 or less, $5 or greater where the strike price is more than $25 but less than $200, and $10 or greater where the strike price is $200 or more. 9 *See, e.g.* , Amex Rule 903 stating that options on ETFs may trade at $5 strike price intervals where the strike price is over $200. *See* Securities Exchange Act Release Nos. 40157 (July 1, 1998), 63 FR 37426 (July 10, 1998) (SR-AMEX-1996-44) and 48024 (June 12, 2003), 68 FR 36617 (June 18, 2003) (SR-AMEX-2003-36). Supplementary Material .01 to Chapter IV, Sec. 6 of BOX rules similarly allows listing and trading of ETF options at $5 strike price intervals where the strike price is over $200. The Exchange believes that the rule proposal to clarify the availability of $5 strike price intervals for ETF options above $200 should enable Phlx to competitively list and trade ETF options at appropriate strike price intervals to the benefit of public customers, traders on the Exchange, and the Exchange itself. 2. Statutory Basis [?USGPO Galley End:?] The Exchange believes that its proposal is consistent with section 6(b) of the Act 10 in general, and furthers the objectives of section 6(b)(5) of the Act 11 in particular, in that it is designed to promote just and equitable principles of trade, perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest. Specifically, the Exchange believes that the proposal would achieve this by allowing listing and trading of options on ETFs at $5 strike price intervals within certain parameters, commensurate with the rules of other options exchanges. 10 15 U.S.C. 78f(b). 11 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition 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 either solicited or received by the Exchange. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act 12 and Rule 19b-4(f)(6) thereunder, 13 because the foregoing proposed rule 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 if consistent with the protection of investors and the public interest. As required under Rule 19b-4(f)(6)(iii) under the Act, 14 Phlx provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, prior to the date of the filing of the proposed rule change. 12 15 U.S.C. 78s(b)(3)(A). 13 17 CFR 240.19b-4(f)(6). 14 17 CFR 240.19b-4(f)(6)(iii). 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. 15 15 *See* 15 U.S.C. 78s(b)(3)(C). 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-Phlx-2007-93 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-Phlx-2007-93. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Phlx. 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-Phlx-2007-93 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 16 Nancy M. Morris, Secretary. 16 17 CFR 200.30-3(a)(12). [FR Doc. E7-25366 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57023; File No. SR-Phlx-2007-83] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Order Approving a Proposed Rule Change Relating to Amending By-Law Article X, Section 10-11 December 20, 2007. On October 29, 2007, the Philadelphia Stock Exchange, Inc. (“Phlx” 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 expand the type of business that certain members of the Exchange's Business Conduct Committee (“Committee”) must conduct in order to qualify as a Committee member. The proposed rule change was published for comment in the **Federal Register** on November 19, 2007. 3 The Commission received no comments on the proposal. This order approves the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 56775 (November 9, 2007), 72 FR 65119. The Committee has exclusive jurisdiction to, among other things:
(1)Monitor compliance with the Act, the rules and regulations under the Act, and the Exchange's By-Laws and Rules; and
(2)authorize the initiation of Exchange disciplinary actions or proceedings. Phlx By-Law X, Section 10-11(h) currently requires that, of the nine members that comprise the Committee, one Committee member must principally carry out its business on XLE 4 and one Committee member must principally carry out its business on the equity options floor. 4 XLE is the electronic system that is operated by the Exchange for the entry, display, execution, and reporting of orders in NMS stocks. *See* Section 1-1(ii) of Phlx's By-Laws. The proposed rule change would revise the qualification requirements for these two Committee positions. Specifically, Phlx proposes to amend Section 10-11(h) of its By-Laws to provide that these two positions can be filled, respectively, by a Member or person associated with a Member Organization who conducts equity business on XLE and a Member who conducts options business at the Exchange. After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 5 In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act, 6 which requires that an exchange have rules designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. In addition, the Commission finds that the proposed rule change is consistent with Section 6(b)(3) under the Act, 7 which requires that the rules of a national securities exchange assure a fair representation of its members in the selection of its directors and the administration of its affairs. The proposed rule change would allow a greater pool of Members to be eligible to hold these two Committee positions and would not alter Member participation on the Committee. 5 In approving this rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 6 15 U.S.C. 78f(b)(5). 7 15 U.S.C. 78f(b)(3). *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 8 that the proposed rule change (SR-Phlx-2007-83) be, and it hereby is, approved. 8 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 9 Nancy M. Morris, Secretary. 9 17 CFR 200.30-3(a)(12). [FR Doc. E7-25367 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57034; File No. SR-Phlx-2007-91] Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by the Philadelphia Stock Exchange, Inc. To Require a Non-Streaming Quote Trader Registered Option Traders (“non-SQT ROT”) To Submit a List of Options for Intended Assignment December 21, 2007. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 2 thereunder, notice is hereby given that on December 12, 2007, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) 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 by the Phlx. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Phlx proposes to amend Exchange Rule 1014(b)(ii)(C) to require Exchange “non-SQT ROTs” (as defined below) to submit to the Exchange a list of the options in which such non-SQT ROT intends to be assigned to make markets. The text of the proposed rule change is available at the Phlx's principal office, the Commission's Public Reference Room, and *http://www.Phlx.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 Phlx included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx 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 purpose of the proposed rule change is to enable the Exchange to better track the activities of non-SQT ROTs on the Exchange. Currently there are a number of categories of Exchange Registered Options Traders that make markets in various options on the Exchange. These categories include Exchange Streaming Quote Traders (“SQTs”) 3 and Remote Streaming Quote Traders (“RSQTs”) 4 that submit continuous electronic option quotations to the Exchange's electronic trading platform for options, Phlx XL. 5 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 An SQT is a Registered Options Trader (“ROT”) who has received permission from the Exchange to generate and submit option quotations electronically through an electronic interface with AUTOM via an Exchange approved proprietary electronic quoting device in eligible options to which such SQT is assigned. *See* Exchange Rule 1014(b)(ii)(A). 4 An RSQT is an ROT that is a member or member organization with no physical trading floor presence who has received permission from the Exchange to generate and submit option quotations electronically through AUTOM in eligible options to which such RSQT has been assigned. An RSQT may only submit such quotations electronically from off the floor of the Exchange. *See* Exchange Rule 1014(b)(ii)(B). 5 *See* Securities Exchange Act Release No. 50100 (July 27, 2004), 69 FR 44612 (August 3, 2004) (SR-Phlx-2003-59). Currently, there are a number of ROTs on the Exchange's options floor that do not stream electronic quotations into the Phlx XL system, known as “non-SQT ROTs.” Instead, non-SQT ROTs make verbal markets when called upon to do so, and also have the ability to send limit orders to the limit order book via electronic interface with Phlx XL. There are several rules that include certain requirements for non-SQT ROTs, such as minimum quarterly in-person trading requirements 6 and the obligation of a non-SQT ROT who transacts more than 20% of his/her contract volume electronically ( *i.e.,* by way of placing limit orders on the limit order book that are executed electronically and allocated automatically in accordance with Exchange Rule 1014(g)(vii)) versus in open outcry during any calendar quarter, to submit electronic quotations in a designated percentage of series in such option during the following calendar quarter, depending on the Exchange's total contract volume traded electronically during the affected calendar quarter. 7 6 *See* Exchange Rule 1014, Commentary .01. 7 *See* Exchange Rule 1014(b)(ii)(E)(2). In order to enable the Exchange to better track the above-mentioned non-SQT ROT activity, non-SQT ROTs would be required to notify the Exchange of each option, on an issue-by-issue basis, in which such non-SQT ROT intends to be assigned to make markets. Such notification would be in writing on a form prescribed by the Exchange (an “ROT Assignment Form”). Any change to such ROT Assignment Form must be made in writing by such non-SQT ROT prior to the end of the trading session in which such change is to take place. The purpose of the “end of the trading session” requirement is to permit non-SQT ROTs to provide additional liquidity to issues not listed on the ROT Assignment Form (especially during periods of peak market activity) without the burden and delay of seeking out a new ROT Assignment Form and appropriate Exchange staff, which could cause the non-SQT ROT to miss out on a trading opportunity. Receipt of the properly completed ROT Assignment Form from a duly qualified non-SQT ROT applicant would constitute acceptance by the Exchange of such non-SQT ROT's assignment in, or termination of assignment in (as indicated on the ROT Assignment Form), the options listed on such ROT Assignment Form. All such assignments would not be effective, and would be terminated, in the event that such non-SQT ROT applicant fails to qualify as an ROT on the Exchange. 2. Statutory Basis The Exchange believes that its proposal is consistent with section 6(b) of the Act 8 in general, and furthers the objectives of section 6(b)(5) of the Act 9 in particular, in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange believes that the foregoing proposal should enable it to better monitor the activities of non-SQT ROTs, which should enhance the fair and orderly market of the Exchange, which would benefit investors in general. 8 15 U.S.C. 78f(b). 9 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 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 either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which Phlx consents, the Commission shall:
(a)By order approve such proposed rule change, or
(b)institute proceedings to determine whether the proposed rule change should be disapproved. 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 No. SR-Phlx-2007-91 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 No. SR-Phlx-2007-91. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Phlx. 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 No. SR-Phlx-2007-91 and should be submitted on or before January 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 10 10 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E7-25375 Filed 12-28-07; 8:45 am] BILLING CODE 8011-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #11140 and #11141] Hawaii Disaster #HI-00010 AGENCY: U.S. Small Business Administration. ACTION: Notice. SUMMARY: This is a notice of an Administrative declaration of a disaster for the State of Hawaii dated 12/19/2007. *Incident:* Severe Storms, High Winds, Rains and Flooding. *Incident Period:* 12/04/2007 through 12/07/2007. EFFECTIVE DATE: 12/19/2007. *Physical Loan Application Deadline Date:* 02/18/2008. *Economic Injury
(EIDL)Loan Application Deadline Date:* 09/19/2008. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations. The following areas have been determined to be adversely affected by the disaster: Primary Counties: Honolulu, Maui. *Contiguous Counties:* None. *The Interest Rates are:* Percent Homeowners With Credit Available Elsewhere 5.875 Homeowners Without Credit Available Elsewhere 2.937 Businesses With Credit Available Elsewhere 8.000 Businesses & Small Agricultural Cooperatives Without Credit Available Elsewhere 4.000 Other (Including Non-Profit Organizations) With Credit Available Elsewhere 5.250 Businesses and Non-Profit Organizations Without Credit Available Elsewhere 4.000 The number assigned to this disaster for physical damage is 11140 B and for economic injury is 11141 0. The State which received an EIDL Declaration # is Hawaii. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Dated: December 19, 2007. Steven C. Preston, Administrator. [FR Doc. E7-25379 Filed 12-28-07; 8:45 am] BILLING CODE 8025-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #11124 and #11125] Washington Disaster Number WA-00015 AGENCY: U.S. Small Business Administration. ACTION: Amendment 2. SUMMARY: This is an amendment of the Presidential declaration of a major disaster for the State of Washington (FEMA-1734-DR), dated 12/09/2007. *Incident:* Severe Storms, Flooding, Landslides, and Mudslides. *Incident Period:* 12/01/2007 and continuing through 12/17/2007. EFFECTIVE DATE: 12/17/2007. *Physical Loan Application Deadline Date:* 02/07/2008. *EIDL Loan Application Deadline Date:* 09/09/2008. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: The notice of the President's major disaster declaration for the State of Washington, dated 12/09/2007 is hereby amended to establish the incident period for this disaster as beginning 12/01/2007 and continuing through 12/17/2007. All other information in the original declaration remains unchanged. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E7-25372 Filed 12-28-07; 8:45 am] BILLING CODE 8025-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #11124 and #11125] Washington Disaster Number WA-00015 AGENCY: U.S. Small Business Administration. ACTION: Amendment 3. SUMMARY: This is an amendment of the Presidential declaration of a major disaster for the State of Washington (FEMA-1734-DR), dated 12/09/2007. *Incident:* Severe Storms, Flooding, Landslides, and Mudslides. *Incident Period:* 12/01/2007 and continuing through 12/17/2007. EFFECTIVE DATE: 12/19/2007. *Physical Loan Application Deadline Date:* 02/07/2008. *EIDL Loan Application Deadline Date:* 09/09/2008. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: The notice of the Presidential disaster declaration for the State of Washington, dated 12/09/2007 is hereby amended to include the following areas as adversely affected by the disaster: *Primary Counties:* Clallam, Kitsap. *Contiguous Counties:* Washington, King. All other information in the original declaration remains unchanged. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E7-25377 Filed 12-28-07; 8:45 am] BILLING CODE 8025-01-P SOCIAL SECURITY ADMINISTRATION [Docket No. SSA-2007-0100] Rate for Assessment on Direct Payment Fees to Representatives in 2008 AGENCY: Social Security Administration (SSA). ACTION: Notice. SUMMARY: SSA is announcing that the assessment percentage rate under sections 206(d) and 1631(d)(2)(C) of the Social Security Act (the Act), 42 U.S.C. 406(d), and 1383(d)(2)(C) is 6.3 percent for 2008. FOR FURTHER INFORMATION CONTACT: Gwen Jones Kelley, Acting Associate General Counsel for Program Law, Office of the General Counsel, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401. Phone:
(410)965-0495, e-mail *Gwen.Jones.Kelley@ssa.gov* . SUPPLEMENTARY INFORMATION: Section 406 of Public Law No. 106-170, the Ticket to Work and Work Incentives Improvement Act of 1999, established an assessment for the services required to determine and certify payments to attorneys from the benefits due claimants under Title II of the Act. This provision is codified in section 206 of the Act (42 U.S.C. 406). That legislation set the assessment for the calendar year 2000 at 6.3 percent of the amount that would be required to be certified for direct payment to the attorney under sections 206(a)(4) or 206(b)(1) of the Act before the application of the assessment. For subsequent years, the legislation requires the Commissioner of Social Security to determine the percentage rate necessary to achieve full recovery of the costs of determining and certifying fees to attorneys, but not in excess of 6.3 percent. Beginning in 2005, sections 302 and 303 of Public Law No. 108-203, the Social Security Protection Act of 2004 (SSPA), extended the direct payment of fees to attorneys in cases under Title XVI of the Act and to eligible non-attorney representatives in cases under Title II or Title XVI of the Act. Fees directly paid under these provisions are subject to the same assessment. In addition, sections 301 and 302 of the SSPA imposed a dollar cap (i.e., currently $79.00) on the amount of the assessment so that the assessment may not exceed the lesser of that dollar cap or the amount determined using the assessment percentage rate. The Commissioner of Social Security has determined, based on the best available data, that the current rate of 6.3 percent will continue for 2008. We will continue to review our costs for these services on a yearly basis. Dated: December 20, 2007. Mary Glenn-Croft, Deputy Commissioner for Budget, Finance and Management. [FR Doc. E7-25409 Filed 12-28-07; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF STATE [Public Notice 6047] Culturally Significant Objects Imported for Exhibition Determinations: “Arms and Armor from Imperial Austria” SUMMARY: Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, *et seq.* ; 22 U.S.C. 6501 note, *et seq.* ), Delegation of Authority No. 234 of October 1, 1999, Delegation of Authority No. 236 of October 19, 1999, as amended, and Delegation of Authority No. 257 of April 15, 2003 [68 FR 19875], I hereby determine that the objects to be included in the exhibition “Arms and Armor from Imperial Austria”, imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at the Cleveland Museum of Art, Cleveland, Ohio, from on or about February 24, 2008, until on or about June 1, 2008, and at possible additional exhibitions or venues yet to be determined, is in the national interest. Public Notice of these Determinations is ordered to be published in the **Federal Register** . FOR FURTHER INFORMATION CONTACT: For further information, including a list of the exhibit objects, contact Richard Lahne, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8058). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001. Dated: December 19, 2007. C. Miller Crouch, Principal Deputy Assistant Secretary for Educational and Cultural Affairs, Department of State. [FR Doc. E7-25421 Filed 12-28-07; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF STATE [Public Notice 6046] Culturally Significant Objects Imported for Exhibition Determinations: “The Lure of the East: British Orientalist Painting, 1830-1925” SUMMARY: Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, *et seq.* ; 22 U.S.C. 6501 note, *et seq.* ), Delegation of Authority No. 234 of October 1, 1999, Delegation of Authority No. 236 of October 19, 1999, as amended, and Delegation of Authority No. 257 of April 15, 2003 [68 FR 19875], I hereby determine that the objects to be included in the exhibition “The Lure of the East: British Orientalist Painting, 1830-1925”, imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at the Yale Center for British Art, New Haven, Connecticut, from on or about February 7, 2008, until on or about April 27, 2008, and at possible additional exhibitions or venues yet to be determined, is in the national interest. Public Notice of these Determinations is ordered to be published in the **Federal Register** . FOR FURTHER INFORMATION CONTACT: For further information, including a list of the exhibit objects, contact Wolodymyr Sulzynsky, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001. Dated: December 21, 2007. C. Miller Crouch, Principal Deputy Assistant Secretary for Educational and Cultural Affairs, Department of State. [FR Doc. E7-25419 Filed 12-28-07; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF STATE [Public Notice 6017] Announcement of Meetings of the International Telecommunication Advisory Committee *Summary:* This notice announces a meeting of the International Telecommunication Advisory Committee
(ITAC)to prepare advice on U.S. positions for the February 2008 meeting of the working groups of the International Telecommunication Union Council. The ITAC will meet to prepare advice for the U.S. on positions for the February 2008 meeting of the working groups of the International Telecommunication Union Council on Wednesday January 16, 2:30-4:30 p.m. EST at a location in the Washington, DC, metro area. Meeting details and detailed agendas will be posted on the mailing list *itac@eblist.state.gov* . People desiring to participate on this list may apply to the secretariat at *minardje@state.gov* . The meeting is open to the public. Dated: December 21, 2007. Doreen F. McGirr, International Communications & Information Policy, Department of State. [FR Doc. E7-25418 Filed 12-28-07; 8:45 am] BILLING CODE 4710-45-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Notice of Passenger Facility Charge
(PFC)Approvals and Disapprovals AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Monthly Notice of PFC Approvals and Disapprovals. In November 2007, there were four applications approved. This notice also includes information on two applications, approved in October 2007, inadvertently left off the October 2007 notice. Additionally, 10 approved amendments to previously approved applications are listed. SUMMARY: The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158). This notice is published pursuant to paragraph d of § 158.29. PFC Applications Approved *Public Agency:* City of Charlotte, North Carolina. *Application Number:* 07-02-C-00-CLT. *Application Type:* Impose and use a PFC. *PFC Level:* $3.00. *Total PFC Revenue Approved in This Decision:* $144,557,137. *Earliest Charge Effective Date:* February 1, 2018. *Estimated Charge Expiration Date:* December 1, 2020. *Class of Air Carriers Not Required To Collect PFCs:* Air taxi/commercial operators filing FAA Form 1800-31. *Determination:* Approved. Based on information contained in the public agency's application, the FAA has determined that the approved class accounts for less than 1 percent of the total annual enplanements at Charlotte/Douglas International Airport. *Brief Description of Projects Approved for Collection and Use:* Construct taxiway V. New aircraft rescue and firefighting vehicle. Aircraft deicing facility. Terminal complex signage. Baggage handling room concourse E. Concourse restroom reconstruction. Master plan land acquisition. Application development cost. *Brief Description of Projects Partially Approved for Collection and Use:* West Boulevard relocation—west. *Determination:* The FAA has determined that only the portion of this project connecting the relocated Wallace Neel Road to the existing road system is eligible at this time. The remaining portions of the project have not been adequately justified since they do not appear necessary for the construction of the third parallel runway. Concourse E improvements. *Determination:* The FAA determined that the costs associated with the tenant finishes are not PFC eligible. *Decision Date:* October 25, 2007. FOR FURTHER INFORMATION CONTACT: John Marshall, Atlanta Airports District Office,
(404)305-7153. *Public Agency:* Telluride Regional Airport Authority, Telluride, Colorado. *Application Number:* 08-06-C-00-TEX. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in This Decision:* $6,000,000. *Earliest Charge Expiration Date:* January 1, 2008. *Estimated Charge Expiration Date:* January 1, 2019. *Class of Air Carriers Not Required To Collect PFC's:* Part 135 charter operators. *Determination:* Approved. Based on information contained in the public agency's application, the FAA has determined that the approved class accounts for less than 1 percent of the total annual enplanements at Telluride Regional Airport. *Brief Description of Project Approved for Collection and Use:* Runway safety area reconstruction. *Decision Date:* October 31, 2007. FOR FURTHER INFORMATION CONTACT: Chris Schaffer, Denver Airports District Office,
(303)342-1258. *Public Agency:* Port of Bellingham, Bellingham, Washington. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved In This Decision:* $707,705. *Earliest Charge Effective Date:* September 1, 2010. *Estimated Charge Expiration Date:* September 1, 2012. *Class of Air Carriers Not Required To Collect PFC'S:* None. *Brief Description of projects approved for Collection and Use:* Terminal expansion—expand gate holding area. Replace rotating beacon. *Decision Date:* November 2, 2007. FOR FURTHER INFORMATION CONTACT: Trang Tran, Seattle Airports District Office,
(425)227-1662. *Public Agency:* Allegheny County Airport Authority, Pittsburgh, Pennsylvania. *Application Number:* 07-06-C-00-PIT. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved In This Decision:* $40,370,883. *Earliest Charge Effective Date:* June 1, 2023. *Estimated Charge Expiration Date:* December 1, 2024. *Class of Air Carriers Not Required To Collect PFC's:* Non-scheduled, on demand air carriers. *Determination:* Approved. Based on information contained in the public agency's application, the FAA has determined that the approved class accounts for less than 1 percent of the total annual enplanements at Pittsburgh International Airport. *Brief Description of Project Partially Approved for Collection and Use:* Deicing—contaminated storm water treatment facility—phase II final design/construction. *Determination:* The FAA determined that a portion of the requested PFC amount had previously been financed by other funding sources. *Decision Date:* November 16, 2007. FOR FURTHER INFORMATION CONTACT: Lori Ledebohm, Harrisburg Airports District Office,
(717)730-2835. *Public Agency:* City of Quincy, Illinois. *Application Number:* 08-03-C-00-UIN. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved In This Decision:* $635,573. *Earliest Charge Effective Date:* January 1, 2008. *Estimated Charge Expiration Date:* March 1, 2019. *Class of Air Carriers Not Required To Collect PFC'S:* Non-scheduled air service. *Determination:* Approved. Based on information contained in the public agency's application, the FAA has determined that the approved class accounts for less than 1 percent of the total annual enplanements at Quincy Regional Airport. Brief Description of Projects Approved for Collection and use: Install terminal area security fence. Rehabilitate taxiway B and portions or taxiways A and D. Install perimeter fence. Extend runway 18/36 and runway safety area improvements. Expansion of aircraft rescue and firefighting apron. Realign taxiway A and construct 400 feet of taxiway F. Update airport layout plan. Reconstruct T-hanger access taxiways and drainage improvements. Remove and realign taxiway D northwest of runway 18/36. Expand general aviation cargo ramp. Master plan and terminal study. Acquire snow removal equipment. Install waterline. Rehabilitate airport entrance road. Acquire wheel loader with ramp blade. Taxiway F construction. *Decision Date:* November 28, 2007. FOR FURTHER INFORMATION CONTACT: Benjamin Mello, Chicago Airports District Office,
(847)294-7195. *Public Agency:* Port of Friday Harbor, Friday Harbor, Washington. *Application Number:* 08-02-C-00-FHR. *Application Type:* Impose and use a PFC. *PFC Level:* $3.00. *Total PFC Revenue Approved in This Decision:* $290,272. *Earliest Charge Effective Date:* January 1, 2008. *Estimated Charge Expiration Date:* July 1, 2016. *Class of Air Carriers Not Required To Collect PFC'S:* Passengers enplaned on a flight to an airport in a community that has a population of less than 10,000 and is not connected by a land highway or vehicular way to the land-connected National Highway System within a State. *Determination:* Approved. Based on information contained in the public agency's application, the FAA has determined that the approved class accounts for less than 1 percent of the total annual enplanements at Friday Harbor Airport. *Brief Description of Projects Approved for Collection and Use:* Overlay runway 16/34. Upgrade perimeter fence. Update master plan. Acquire land for airport development. Acquire land for approach protection. PFC administration. *Decision Date:* November 30, 2007. FOR FURTHER INFORMATION CONTACT: Trang Tran, Seattle Airports District Office,
(425)227-1662. Amendments to PFC Approvals Amendment No. city, state Amendment approved date Original approved net PFC revenue Amended approved net PFC revenue Original estimated charge exp. date Amended estimated charge exp. date 98-03-C-03-BPT, Beaumont, TX 11/01/07 $1,966,490 $1,541,860 4/01/05 4/01/05 01-03-C-02-FOD, Fort Dodge, IA 11/06/07 290,193 315,570 04/01/08 04/01/11 05-04-C-01-GLH, Greenville, MS 11/07/07 125,240 135,614 06/01/08 08/01/08 *98-07-C-01-MHT, Manchester, NH 11/15/07 84,643,000 115,844,450 10/01/16 08/01/15 00-01-C-02-FHR, Friday Harbor, WA 11/15/07 223,812 226,805 11/01/05 01/01/08 02-08-C-02-JAC, Jackson, WY 11/16/07 1,186,158 1,189,579 04/01/04 01/01/04 06-12-C-01-MRY, Monterey, CA 11/23/07 1,811,815 2,153,658 03/01/09 08/01/08 93-01-C-03-DSM, Des Moines, IA 11/26/07 8,775,029 8,259,287 05/01/98 05/01/98 99-04-C-02-DSM, Des Moines, IA 11/26/07 1,850,000 1,726,806 11/01/04 11/01/04 00-05-C-02-DSM, Des Moines, IA 11/26/07 1,150,000 971,946 03/01/05 03/01/05 Notes: The amendment denoted by an asterisk (*) includes a change to the PFC level charged from $3.00 per enplaned passenger to $4.50 per enplaned passenger. For Manchester, NH this change is effective on January 1, 2008. Issued in Washington, DC on December 20, 2007. Joe Hebert, Manager, Financial Analysis and Passenger Facility Charge Branch. [FR Doc. 07-6241 Filed 12-28-07; 8:45 am]
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CFR
U.S. Code
29 references not yet in our index
  • 419 F.3d 477
  • 412 F.3d 165
  • 423 U.S. 122
  • 485 U.S. 759
  • 231 F.2d 699
  • 519 U.S. 482
  • 781 F.2d 229
  • 749 F.2d 1116
  • 425 U.S. 308
  • Pub. L. 104-13
  • 29 CFR 90.18
  • 26 USC 2813
  • 29 CFR 90.18(c)
  • 45 CFR 614
  • 10 CFR 71
  • 10 CFR 110
  • 72 FR 49
  • 10 CFR 2
  • 10 CFR 100
  • 10 CFR 50
  • 17 CFR 240.19
  • 17 CFR 240.15
  • 17 CFR 240.12
  • 15 USC 78
  • Pub. L. 106-170
  • Pub. L. 108-203
  • 79 Stat. 985
  • Pub. L. 101-508
  • 14 CFR 158
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Notice of meeting
C.F.R.§ 1301.33
U.S.C.§ 823
C.F.R.§ 1301.43
C.F.R.§ 1308.13
C.F.R.§ 1306.04
U.S.C.§ 843
C.F.R.§ 0.100
U.S.C.§ 841
U.S.C.§ 824
F. App'x419 F.3d 477
F. App'x412 F.3d 165
SCOTUS423 U.S. 122
Cites 78 · showing 12Cited by 0 across 0 sources
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