Notices. Notice of petitions for modification of existing mandatory safety standards
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/register/2008/01/25/08-328A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 4410-15-M DEPARTMENT OF JUSTICE Drug Enforcement Administration Nasim F. Khan, M.D.; Denial of Application On June 8, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Nasim F. Khan, M.D. (Respondent), of Houston, Texas. The Show Cause Order proposed the denial of Respondent's pending application for a DEA Certificate of Registration as a practitioner on two grounds:
(1)That she lacked authority under state law to handle controlled substances, and
(2)that her “registration would be inconsistent with the public interest.” Show Cause Order at 1; *see also* 21 U.S.C. 823(f). The Show Cause Order specifically alleged that “[o]n June 26, 2006, [Respondent's] Texas Controlled Substance Registration was terminated,” and that she was therefore “not currently authorized by the State of Texas to prescribe, dispense, or otherwise handle controlled substances.” Show Cause Order at 1. The Show Cause Order further alleged that Respondent had committed acts inconsistent with the public interest because she had “allowed [her] DEA registration to be used to dispense controlled substances for other than legitimate medical purposes” and had “engage[ed] in self-prescribing of controlled substances, in violation of the Texas Controlled Substances Act.” *Id.* On June 15, 2007, the Show Cause Order, which also notified Respondent of her right to request a hearing on the allegations, was served on Respondent by Federal Express delivered to her residence. Because:
(1)More than thirty days have passed since service of the Show Cause Order, and
(2)neither Respondent, nor anyone purporting to represent her, has requested a hearing, I conclude that Respondent has waived her right to a hearing. *See* 21 CFR 1301.43(d). I therefore enter this Final Order without a hearing based on relevant material contained in the investigative file, *see id.* 1301.43(e), and make the following findings. Findings Respondent is a physician with a specialty in psychiatry and pathology. Respondent previously held a DEA Certificate of Registration as a practitioner at the registered location of Houston Medical Clinic, 10881 Richmond Ave., Apt. 412, Houston, Texas. In July 2004, DEA Diversion Investigators with the Houston Field Division received information that Respondent was prescribing promethazine with codeine cough syrup, a schedule V controlled substance, *see* 21 CRR 1308.15(c), to an individual who had been arrested three times by the Houston Police Department for unlawfully possessing controlled substances. In August 2005, DEA Diversion Investigators
(DIs)received information that two unlicensed individuals (F.K. and V.V.), who worked at the Main Medical Clinic (which was located in Jacinto City, Texas), were using Respondent's DEA registration to issue controlled-substance prescriptions for drugs which included Lorcet 10/650 (a branded drug combining hydrocodone and acetaminophen and a schedule III controlled substance, *see* 21 CFR 1308.13(e), Xanax (alprazolam), a schedule IV controlled substance, *see id.* 1308.14(c), and promethazine with codeine cough syrup. *Id.* 1308.15(c). F.K. and V.V. charged $100 for each prescription. The DIs subsequently went to the clinic and interviewed several people. While the DIs were told that Respondent had terminated her employment at the clinic, they also obtained a stack of prescription carbons. The copies indicated the patient's name, the name of a controlled substance, and Respondent's DEA number. During other interviews, the DIs determined that Respondent had seen only one or two “patients” each day, and that most of the clinic's “patients” were seen by other people including several foreign graduate students who were not licensed in any field of medical practice. The DIs also confirmed that V.V. had sold a stack of prescriptions, which bore a signature similar to Respondent's, for a large amount of cash. Thereafter, on August 11, 2005, the DIs interviewed Respondent at the location of a clinic (named the “45 Clinic”) which she was opening in Houston and for which she needed to change the address of her registered location. 1 During the interview, Respondent stated that she had seen approximately forty patients a day at the Main Medical Clinic and that the cost for a controlled-substance prescription was $80 cash. Respondent further stated that at the clinic, foreign graduate students worked under her supervision and wrote the prescriptions which she then signed. Respondent also stated that she had taken a continuing medical education class in pain management and that the only controlled substances she prescribed were Vicodin, Lorcet, and Lortab. 2 1 According to the investigative file, Respondent did not own the clinic. 2 Respondent also stated that she prescribed Ritalin for her child psychiatric patients who had Attention Deficit Disorder. In the course of the investigation, the DIs had previously determined that Respondent had obtained controlled substances based on 117 prescriptions issued to her under her DEA number. During the interview, Respondent denied that she had self-prescribed and claimed that her son was also a physician and had prescribed the controlled substances for her. Subsequently, the DIs searched the Texas Medical Board's website and found that there was no listing for her son. The DIs had also previously determined that between January 1, 2004, and August 11, 2005, Respondent had obtained approximately 474 twenty-five ml. bottles of schedule V cough medicines. When asked as to why she had ordered the drugs, Respondent maintained that they were small containers of cough syrup which she used when she was unable to sleep. While at Respondent's new clinic, the DIs interviewed V.V., the same individual who had been implicated in selling controlled-substance prescriptions at Respondent's former employer. V.V. told the investigators that she had first met Respondent on that very day (when she had purportedly interviewed for a position at the clinic) and that her duties at Respondent's clinic would include scheduling appointments, taking vital signs, and other duties performed by receptionists. Thereafter, on August 30, 2005, a registration technician changed Respondent's registered location to the address of her new clinic. Approximately three weeks later, on September 19, 2005, Respondent notified a DI that V.V. was using her DEA number to write unauthorized prescriptions for unknown individuals. Later that day, two DIs interviewed Respondent at her residence. Respondent told the DIs that she had terminated her employment at the Main Medical Clinic because she suspected that its owner was involved in illegal activities. Respondent stated that she had contacted DEA because she had received information that the Corpus Christi, Texas Police Department was looking for her regarding prescriptions she had written. Respondent further stated that during the previous week, she had gone to her new clinic and attempted to retrieve her prescriptions but was told that the pads belonged to the clinic. Respondent added that she had become concerned that someone was using her DEA number to issue prescriptions without her consent. Because of the unauthorized use of her number, Respondent then agreed to voluntarily surrender her DEA registration. She also surrendered her state controlled-substances registration. On September 30, 2005, Respondent applied for a new registration using the address of the 45 Clinic for her proposed registered location. Several days later, two DIs went to Respondent's residence and attempted to interview her. Upon opening the door, Respondent started screaming at the DIs and stated that they should contact her attorney. When one of the DIs asked Respondent for her attorney's phone number, Respondent stated that she would get the number and slammed the door. Several minutes later, Respondent opened the door, threw a piece of paper at the DI, and stated in a loud voice that “the White House knew who her father was and that she was his daughter.” After the DIs told Respondent that they were there to speak to her about her application, Respondent stated that “there would be no trick or treating here today.” One of the DIs again asked Respondent whether she had applied for a new registration. Respondent answered “yes” and again slammed the door shut. Thereafter, a local pharmacist notified DEA investigators that on October 3 and 4, he had received two prescriptions which were written under Respondent's DEA number. The pharmacist told the DIs that when he had attempted to verify one the prescriptions, Respondent did not return the call. Respondent, in a subsequent interview, denied issuing the prescriptions. On January 5, 2006, a detective with the Garland, Texas Police Department notified one of the DIs that numerous prescriptions written under Respondent's former DEA registration had been presented at a local pharmacy. The prescriptions bore the name and address of the Main Medical Clinic, Respondent's former employer. Thereafter, on March 28, 2006, an official of the Texas Department of Public Safety
(DPS)notified a DI that the State intended to terminate Respondent's state controlled-substances registration. The state official further told the DI that Respondent's application had been erroneously granted because at the time the application was approved, the State was upgrading its computer system and was unable to access her history. Subsequently, on June 26, 2006, DPS terminated Respondent's state controlled-substances registration on the ground that she was prohibited under the State's rules for re-applying for a period of one year following her surrendering of her state registration. I further find that the State has not re-instated her controlled-substances registration. I also find that on August 24, 2007, Respondent entered into an Agreed Order with the Texas Medical Board. Under the order, Respondent voluntarily and permanently surrendered her medical license. According to the Texas Medical Board's website, “[t]he action was based on [Respondent's] failure to meet the standard of care due [to] her non-therapeutic prescription of controlled substances to four patients and to herself.” Discussion Section 303(f) of the Controlled Substances Act provides that “[t]he Attorney General shall register practitioners * * * to dispense * * * controlled substances in schedule II, III, IV, or V, if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Section 303(f) further 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.” *Id.* 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 a registration should be revoked.” *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 (DC Cir. 2005). In this case, I conclude that there are two independent grounds for denying Respondent's application. First, Respondent is not currently authorized under Texas law to handle controlled substances and thus does not meet an essential requirement for a registration under the CSA. Second, while it appears that Respondent will not be returning to medical practice anytime soon, her experience in dispensing controlled substances and her record of compliance with applicable laws make clear that granting her a registration “would be inconsistent with the public interest.” 21 U.S.C. 823(f). Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in “the jurisdiction in which [she] practices” in order to maintain a DEA registration. *See* 21 U.S.C. 802(21) (“[t]he term ‘practitioner’ means a physician * * * licensed, registered, or otherwise permitted, by * * * the jurisdiction in which he practices * * * to distribute, dispense, [or] administer * * * a controlled substance in the course of professional practice”). *See also id.* section 823(f) (“The Attorney General shall register practitioners * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.”). Relatedly, DEA has repeatedly held that the CSA requires the revocation of a registration issued to a practitioner who no longer possesses authority under state law to handle controlled substances. *See Sheran Arden Yeates* , 71 FR 39130, 39131 (2006); *Dominick A. Ricci* , 58 FR 51104, 51105 (1993); *Bobby Watts* , 53 FR 11919, 11920 (1988). *See also* 21 U.S.C. 824(a)(3) (authorizing the revocation of a registration “upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances”). Here, the investigative file establishes that Respondent's Texas controlled-substances registration was terminated on June 26, 2006. Moreover, there is no evidence that the State has issued a new controlled substance registration to her, and the Agreed Order which Respondent entered into with the Texas Medical Board suggests that the State will not grant her a new controlled-substances registration any time soon. Because Respondent is without authority to handle controlled substances in Texas, the State in which she seeks a DEA registration, she does not meet an essential prerequisite for a new DEA registration. Accordingly, her application is denied on that basis. *See* 21 U.S.C. 823(f). I further note that even if Respondent possessed a state registration, the record would still support the denial of her application on the ground that her registration would be “inconsistent with the public interest.” 21 U.S.C. 823(f). As the State found, Respondent has engaged in the non-therapeutic prescription of controlled substances both to herself and others. With respect to her self-prescribing, the record establishes that Respondent issued to herself 117 prescriptions for narcotic-cough syrups, which are schedule V controlled substances. The record further establishes that Respondent's statements to investigators that the prescriptions were issued to her by her son, and that her son was a physician, were false. Moreover, there is also substantial and disturbing evidence that Respondent failed to exercise proper control over her prescriptions pads and allowed unlicensed and un-registered individuals at the Main Medical Clinic to write prescriptions under her DEA registration. This conduct violates federal law and regulations, which require that a prescription be “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of [her] professional practice,” 21 CFR 1306.04(a), and that each person writing a prescription be “[a]uthorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession and * * * [e]ither registered or exempted from registration.” *Id.* § 1306.03(a). Accordingly, even if Respondent held a state registration, her abysmal experience in dispensing controlled substances and her record of non-compliance with federal and state laws related to controlled substances would nonetheless require the denial of her application. 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 Nasim F. Khan, M.D., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective February 25, 2008. Dated: January 17, 2008. Michele M. Leonhart, Deputy Administrator. [FR Doc. E8-1241 Filed 1-24-08; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF LABOR Office of the Secretary Submission for OMB Review: Comment Request January 18, 2008. The Department of Labor
(DOL)hereby announces the submission of 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.* Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: Bridget Dooling, 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 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:* Certification of Funeral Expenses. *OMB Control Number:* 1215-0027. *Form Number:* LS-265. *Estimated Number of Respondents:* 195. *Total Estimated Annual Burden Hours:* 49. *Total Estimated Cost Burden:* $86. *Affected Public:* Private Sector: Business or other for-profits. *Description:* The Form LS-265 is used to report funeral expenses payable under section 9(a) of the Longshore and Harbor Workers' Act [ 33 U.S.C. 909]. *Agency:* Employment Standards Administration. *Type of Review:* Revision of currently approved collection. *Title:* Comparability of Current Work to Coal Mine Employment. *OMB Control Number:* 1215-0056. *Form Numbers:* CM-913 (the Forms CM-918 and CM-1093 are being discontinued). *Estimated Number of Respondents:* 1,350. *Total Estimated Annual Burden Hours:* 675. *Total Estimated Cost Burden:* $594. *Affected Public:* Individuals or households. *Description:* Once a miner has been identified as having performed non-coal mine work subsequent to coal mine employment, the miner or the miner's survivor is asked to complete a Form CM-913. The Form is used to compare the physical demands of the miner's coal mine work with last or current non-coal mine work. This employment information, together with medical information, is used to establish whether the miner is totally disabled due to black lung disease caused by coal mine employment, a criterion for entitlement of benefits. Information collected on the Form CM-913 helps DOL to determine if the miner has or had a reduced ability to perform his usual and customary coal mine work. The Black Lung Benefits Act, as amended, 30 U.S.C. 901 *et. seq.* and 20 CFR 718.204(b)(1) necessitate the collection of this information. Darrin A. King, Acting Departmental Clearance Officer. [FR Doc. E8-1291 Filed 1-24-08; 8:45 am] BILLING CODE 4510-CK-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 January 7 through January 11, 2008. 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. *None.* 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-62,531; Nova Measuring Instruments, Inc., Microstructure Division, Also known as Hypernex, State College, PA: 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) 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-62,342; Georgia Pacific West, Inc., Consumer Products Division, Bellingham, WA: October 19, 2006.* *TA-W-62,480; Carrier Corporation, Residential Products Division, Collierville, TN: November 16, 2006.* *TA-W-62,484; Halmode Apparel, A Division of Kellwood Company, New York, NY: November 4, 2007.* *TA-W-62,495; Telex Communications, Inc., Blue Earth Manufacturing Facility, Blue Earth, MN: December 6, 2007.* *TA-W-62,505; Spring Global US, Inc., Charles D. Owen Manufacturing Div., Leased Workers form Diversco, Swannanoa, NC: February 1, 2008.* *TA-W-62,540; Culp, Inc., Corporate Headquarters, High Point, NC: June 17, 2007.* *TA-W-62,562; Innovision Technologies, Inc., On-Site at Ford Motor Co., Product Development and Engineering Center, Dearborn, MI: December 6, 2006.* *TA-W-62,591; Miss Elaine, Inc., Ste. Genevieve, MO: March 11, 2007.* *TA-W-62,652; The Quill Company, Inc., Cranston, RI: January 7, 2007.* *TA-W-62,152; Ohio Valley Aluminum Company, LLC, A Subsidiary of Interlock Industries, On-Site Leased Workers form Callos Co., Niles, OH: September 10, 2006.* *TA-W-62,351; Black and Decker Consumer Products, Pressure Washer Division, On-Site Leased Workers from People Link, Decatur, AR: October 23, 2006.* *TA-W-62,587; Deluxe Media Services LLC, Vernon Hills, IL: December 16, 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-62,177; ASF Keystone, Inc., A Division of Amsted, Granite City, IL: September 20, 2006.* *TA-W-62,485; Mountain Surf, Inc., Friendsville, MD: November 19, 2006.* *TA-W-62,520; Carrier Access Corporation, Boulder, CO: November 27, 2006.* *TA-W-62,579; Durham Manufacturing Company, Metal Storage Bin Department, Durham, CT: December 14, 2006.* *TA-W-62,596; First Inertia Switch Ltd., Grand Blanc, MI: July 13, 2007.* *TA-W-62,628; Holcim (US), Inc., Weirton, WV: December 26, 2006.* *TA-W-62,075; Bay Area News Group East Bay, LLC, Subsidiary of California Newspaper Partnership, Formerly Alameda Newspaper Group, Pleasanton, CA: August 23, 2006.* *TA-W-62,075A; Bay Area News Group East Bay, LLC, Subsidiary of California Newspaper Partnership, Formerly Alameda Newspaper Group, Oakland, CA: August 23, 2006.* * TA-W-62,075B; Bay Area News Group East Bay, LLC, Subsidiary of California Newspaper Partnership, Formerly Contra Costa Newspaper, Walnut Creek, CA: August 23, 2006. * *TA-W-62,075C; Bay Area News Group East Bay, LLC, Subsidiary of California Newspaper Partnership, Formerly Alameda Newspaper Group, San Mateo, CA: August 23, 2006.* *TA-W-62,075D; Bay Area News Group East Bay, LLC, Subsidiary of California Newspaper Partnership, Formerly Alameda Newspaper Group, Premont, CA: August 23, 2006.* *TA-W-62,487; Tru Die Cast Corporation, New Troy, MI: November 9, 2006.* *TA-W-62,640; Parker Hannifin Corporation, Techseal Division, On-Site Leased Workers From Manpower, Wilson, NC: January 4, 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) and Section 246(a)(3)(A)(ii) 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) and Section 246(a)(3)(A)(ii) of the Trade Act have been met. *None.* 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-62,531; Nova Measuring Instruments, Inc., Microstructure Division, Also known as Hypernex, State College, PA* The Department has determined that criterion
(2)of Section 246 has not been met. Workers at the firm possess skills that are easily transferable. *None* . 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-62,600; OSRAM Sylvania Products, Inc., Waldoboro, ME* 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. *None* . 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. *None* . The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974. *None* . 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. *TA-W-62,443; Booth Electrosystems, Inc., Systems Department, Greenville, SC.* I hereby certify that the aforementioned determinations were issued during the period of January 7 through January 11, 2008. 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: January 17, 2008. Ralph Dibattista, Director, Division of Trade Adjustment Assistance. [FR Doc. E8-1282 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,506] Dielink International, Grand Rapids, MI; Notice of Termination of Investigation Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 29, 2007, in response to a petition filed by a company official on behalf of workers of Dielink International, Grand Rapids, Michigan. The worker group is covered by an active certification (TA-W-62,043, as amended), which expires September 17, 2009. Consequently, further investigation would serve no purpose, and the investigation has been terminated. Signed at Washington, DC, this 14th day of January 2008 Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1286 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,527] Development, Grand Rapids, MI; Notice of Termination of Investigation Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 3, 2007, in response to a petition filed by a company official on behalf of workers of Development, Grand Rapids, Michigan. The worker group is covered by an active certification (TA-W-62,043, as amended), which expires September 17, 2009. Consequently, further investigation would serve no purpose, and the investigation has been terminated. Signed at Washington, DC, this 14th day of January 2008. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1288 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,381] 3M, Electronic Solutions Division, Including On-Site Leased Workers of Volt, Manpower, Aramark, ISS Facility Services, Smith Micro Technologies, Per-Mar Security, B&B Electric, and Market and Johnson Eau Claire, Wisconsin; 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 of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on December 4, 2007, applicable to workers of 3M, Electronic Solutions Division, including on-site leased workers of Volt and Manpower, Eau Claire, Wisconsin. The notice was published in the **Federal Register** on December 19, 2007 (72 FR 71964). At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of organic interconnect substrates for electronic components. New information shows that leased workers of Aramark, ISS Facility Services, Smith Micro Technologies, Per-Mar Security, B&B Electric, and Market and Johnson were employed on-site at the Eau Claire, Wisconsin location of 3M, Electronic Solutions Division. The Department has determined that these workers were sufficiently under the control of 3M, Electronic Solutions Division to be considered leased workers. Based on these findings, the Department is amending this certification to include leased workers of Aramark, ISS Facility Services, Smith Micro Technologies, Per-Mar Security, B&B Electric, and Market and Johnson working on-site at the Eau Claire, Wisconsin location of the subject firm. The intent of the Department's certification is to include all workers employed at 3M, Electronic Solutions Division, Eau Claire, Wisconsin who were adversely-impacted by increased customer imports of organic interconnect substrates for electronic components. The amended notice applicable to TA-W-62,381 is hereby issued as follows: “All workers of 3M Eau Claire, Electronic Solutions Division, including on-site leased workers of Volt, Manpower, Aramark, ISS Facility Services, Smith Micro Technologies, Per-Mar Security, B&B Electric, and Market and Johnson, Eau Claire, Wisconsin, who became totally or partially separated from employment on or after October 30, 2006, through December 4, 2009, 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 17th day of January 2008. Richard Church, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1285 Filed 1-24-08; 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 February 4, 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 February 4, 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 January 2008. Ralph DiBattista, Director, Division of Trade Adjustment Assistance. Appendix [TAA Petitions instituted between 1/7/08 and 1/11/08] TA-W Subject firm (petitioners) Location Date of institution Date of petition 62637 Arcelor Mittal USA Weirton, Inc. (formerly Mittal ISG Weirton)
(Wkrs)Weirton, WV 01/07/08 01/02/08 62638 Thomasville Furniture Industries
(Comp)Thomasville, NC 01/07/08 01/03/08 62639 Bombardier Transportation
(Wkrs)Pittsburgh, PA 01/07/08 12/31/07 62640 Parker Hannifin Corporation
(Comp)Wilson, NC 01/07/08 01/04/08 62641 Hitachi Global Storage Technologies, Inc.
(Wkrs)San Jose, CA 01/07/08 12/18/07 62642 North State Industries (State) Nevis, MN 01/07/08 01/04/08 62643 Tri Source Inc
(Comp)Shelton, CT 01/08/08 01/05/08 62644 DC Safety
(Comp)Hauppauge, NY 01/08/08 01/04/08 62645 Spotless Enterprises Inc.
(Comp)Asheville, NC 01/08/08 01/07/08 62646 Pfizer Company
(Wkrs)Portage, MI 01/09/08 01/07/08 62647 Honeywell (Union) Greenville, OH 01/09/08 01/08/08 62648 Trio Manufacturing Company
(Comp)Forsyth, GA 01/09/08 01/08/08 62649 A&R Machine Company, Inc.
(Comp)East Sparta, OH 01/09/08 12/14/07 62650 Crane Vitreous China Plant
(Comp)Hondo, TX 01/09/08 12/13/07 62651 Alcoa (State) Frederick, MD 01/09/08 01/08/08 62652 The Quill Company, Inc.
(Comp)Cranston, RI 01/09/08 01/07/08 62653 RF Micro Devices (State) Broomfield, CO 01/09/08 01/07/08 62654 Leggett and Platt/Design Fabricators
(Comp)Thornton, CO 01/09/08 01/04/08 62655 Warp Processing Inc.
(Wkrs)Exeter, PA 01/10/08 01/09/08 62656 Saint Gobain Abrasives
(Comp)Littleton, NH 01/10/08 01/09/08 62657 Plum Creek Evergreen Sawmill and Reman
(Comp)Kalispell, MT 01/10/08 01/09/08 62658 Milwaukee Electric Tool Corporation
(Comp)Jackson, MS 01/10/08 01/09/08 62659 Richloom Home Fashions
(Wkrs)Clinton, SC 01/10/08 01/07/08 62660 Interface Inc.
(Wkrs)Elkin, NC 01/10/08 01/04/08 62661 Agilent Technologies
(Comp)Loveland, CO 01/11/08 01/10/08 62662 Pentair Electronic Packaging
(Comp)Des Plaines, IL 01/11/08 01/09/08 62663 C and D Technologies
(Rep)Conyers, GA 01/11/08 01/09/08 62664 Catawba Valley Finishing, LLC
(Wkrs)Newton, NC 01/11/08 01/10/08 62665 Chemcraft Systems, LLC
(Comp)Cullman, AL 01/11/08 01/10/08 62666 Wentworth Corporation
(Comp)Madison, NC 01/11/08 01/10/08 62667 Gold Toe Moretz, LLC
(Comp)Burlington, NC 01/11/08 01/09/08 62668 Conrad Forest Products
(Comp)North Bend, OR 01/11/08 01/10/08 [FR Doc. E8-1281 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,525] Magna Donnelly Engineered Glass, Holland, MI; Notice of Termination of Investigation Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 3, 2007 in response to a worker petition filed by a company official on behalf of workers at Magna Donnelly Engineered Glass, Holland, Michigan. The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated. Signed at Washington, DC, this 17th day of January 2008. Richard Church, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1287 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,271] Ravenswood Specialty Services, Inc., Ravenswood, WV; Notice of Negative Determination Regarding Application for Reconsideration By application dated November 29, 2007, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (the Union) requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of Ravenswood Specialty Services, Inc., Ravenswood, West Virginia (subject firm) to apply for Trade Adjustment Assistance
(TAA)and Alternative Trade Adjustment Assistance (ATAA). The negative determination was issued on October 18, 2007. The Department's Notice of determination was published in the **Federal Register** on October 31, 2007 (72 FR 61686). Workers produce nylon polymer and Minlon, and are not separately identifiable by related article. The petition was denied because the subject firm did not shift production to a foreign country, the subject firm did not import nylon polymer or Minlon, and the subject firm's major declining customer did not import nylon polymer or Minlon during the relevant period. In the request for reconsideration, the Union stated that “the workers' separations are due to foreign imports and a shift of production to a foreign country. We are in the process of gathering further information to help support this position and will forward it to your office as soon as possible.” Pursuant to 29 CFR 90.18(c), administrative 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 misinterpretation of facts or of the law justified reconsideration of the decision. The Union did not supply facts not previously considered; nor provide additional documentation indicating that there was either
(1)a mistake in the determination of facts not previously considered or
(2)a misinterpretation of facts or of the law justifying reconsideration of the initial determination. After careful review of the request for reconsideration, the Department determines that 29 CFR 90.18(c) has not been met. 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 at Washington, DC this 16th day of January 2008. Elliott S. Kushner, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1284 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,043] Synergis Technologies Group Corporation, Dielink International Development; Including On-Site Leased Workers from Forge Industrial Staffing, All Performance Staffing and Aerotek Grand Rapids, Michigan; 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 of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on September 17, 2007, applicable to workers of Synergis Technologies Group Corporation, including on-site leased workers from Forge Industrial Staffing, and All Performance Staffing, Grand Rapids, Michigan. The notice was published in the **Federal Register** on October 3, 2007 (72 FR 56385). At the request of petitioners, a company official and a state agency representative, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of metal stamping dies. New information provided by the company shows that the worker group includes those employees of Synergis Technologies Group Corporation divisions known as Dielink International and Dievelopment. These two divisions are located at different street addresses in Grand Rapids, but are engaged in employment related to the production of metal stamping dies. Furthermore, the Unemployment Insurance
(UI)wage account for these divisions is reported under Synergis Technologies Group Corporation. The company official also confirms that the worker group includes on-site leased workers from Aerotech. The Department has determined that the Aerotech workers were sufficiently under the control of Synergis Technologies Group Corporations. Based on these findings, the Department is amending this certification to include workers of Dielink International, Dievelopment, and workers from Aerotek working on-site at the Grand Rapids, Michigan locations of the subject firm. The intent of the Department's certification is to include all workers employed at Synergis Technologies Group Corporation, Grand Rapids, Michigan who were adversely-impacted by a shift in production of metal stamping dies to China. The amended notice applicable to TA-W-62,043 is hereby issued as follows: “All workers of Synergis Technologies Group Corporation, Dietech International and Dievelopment, Grand Rapids, Michigan, including on-site leased workers from Forge Industrial Staffing, All Performance Staffing and Aerotek, who became totally or partially separated from employment on or after August 24, 2006, through September 17, 2009, 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 January 2008. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1283 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Employment and Training Administration [TA-W-62,616] Weyerhaeuser Longview Lumber, Longview, WA; Notice of Termination of Investigation Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 31, 2007 in response to a petition filed by the International Association of Machinists and Aerospace Workers-Woodworkers, Local W-536 on behalf of workers at Weyerhaeuser Longview Lumber, Longview, Washington. The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated. Signed at Washington, DC, this 17th day of January, 2008. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E8-1280 Filed 1-24-08; 8:45 am] BILLING CODE 4510-FN-P DEPARTMENT OF LABOR Mine Safety and Health Administration Petitions for Modification AGENCY: Mine Safety and Health Administration, Labor. ACTION: Notice of petitions for modification of existing mandatory safety standards. SUMMARY: Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR Part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification filed by the parties listed below to modify the application of existing mandatory safety standards published in Title 30 of the Code of Federal Regulations. DATES: All comments on the petitions must be received by the Office of Standards, Regulations, and Variances on or before February 25, 2008. ADDRESSES: You may submit your comments, identified by “docket number” on the subject line, by any of the following methods: 1. *Electronic mail: Standards-Petitions@dol.gov.* 2. *Facsimile:* 1-202-693-9441. 3. *Regular Mail:* MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2349, Arlington, Virginia 22209, Attention: Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances. 4. *Hand-Delivery or Courier:* MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2349, Arlington, Virginia 22209, Attention: Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances. We will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments. Individuals who submit comments by hand-delivery are required to check in at the receptionist desk on the 21st floor. Individuals may inspect copies of the petitions and comments during normal business hours at the address listed above. FOR FURTHER INFORMATION CONTACT: Edward Sexauer, Chief, Regulatory Development Division at 202-693-9444 (Voice), *sexauer.edward@dol.gov* (E-mail), or 202-693-9441 (Telefax), or contact Barbara Barron at 202-693-9447 (Voice), *barron.barbara@dol.gov* (E-mail), or 202-693-9441 (Telefax). [These are not toll-free numbers]. SUPPLEMENTARY INFORMATION: I. Background Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary determines that:
(1)An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
(2)that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modifications. II. Petitions for Modification *Docket Number:* M-2007-069-C. *Petitioner:* Cumberland River Coal Company, Pardee Complex, P.O. Drawer 109, Appalachia, Virginia 24216. *Mine:* Dogwood #2 Mine, MSHA I.D. No. 44-07018, located in Wise County, Virginia. *Regulation Affected:* 30 CFR 77.214(a) (Refuse piles; general). *Modification Request:* The petitioner proposes to place refuse rock from preparation plant operations over the abandoned portals of the Old Dominion Energy, Inc., Dogwood #2 Mine and is requesting modification of the existing standard to allow extension of refuse site 1211-VA5-0286-82 to that area. The petitioner states that:
(1)Modification of the existing standard would not jeopardize the safety of the miners at the mine or the disposal area;
(2)no miners have been working in the mine since it has been abandoned;
(3)there are four mine openings in the area planned for placement of refuse rock;
(4)the openings are in the Low Split D seam at an elevation of 2,460 feet; and
(5)the site is lower in elevation than the mine openings. The petitioner has listed in this petition specific steps that will be followed when sealing the abandoned mine openings in preparation for placement of refuse rock. Persons may review a complete description of the proposed steps and procedures at the MSHA address listed in the notice. The petitioner asserts that the proposed preparation for refuse rock placement will maintain the same level of safety as the existing standard. *Docket Number:* M-2007-070-C. *Petitioner:* White County Coal, LLC, P.O. Box 457, Carmi, Illinois 62821. *Mine:* Pettiki Mine, MSHA I.D. No. 11-03058, located in White County, Illinois. *Regulation Affected:* 30 CFR 75.503 (Permissible electric face equipment; maintenance) and 30 CFR 18.35 (Portable (trailing) cables and cords). *Modification Request:* The petitioner requests a modification of the existing standard to increase the maximum length of cables supplying power to permissible equipment used in continuous mining sections. The petitioner states that:
(1)This petition will only apply to trailing cables supplying three-phase, 995-volt power to continuous mining machines and trailing cables supplying three-phase, 480-volt power to roof bolters;
(2)the maximum length of the 995-volt continuous mining machine trailing cables will be 950 feet and the maximum length of the 480-volt trailing cables for roof bolters will be 900 feet;
(3)995-volt continuous mining machine trailing cables will not be smaller than 2/0 and the 480-volt trailing cables for roof bolters will not be smaller than #2 American Wire Gauge (AWG);
(4)all circuit breakers used to protect 2/0 trailing cables exceeding 850 feet in length will have instantaneous trip units calibrated to trip at 1,500 amperes and the trip setting will be sealed or locked and will have permanent legible permanent labels that will be maintained as legible to identify the circuit breaker as being suitable for protecting 2/0 cables;
(5)replacement instantaneous trip units, used to protect 2/0 trailing cables, will be calibrated to trip at 1,500 amperes and the setting will be sealed or locked;
(6)all circuit breakers used to protect #2 AWG trailing cables exceeding 700 feet in length will have instantaneous trip units calibrated to trip at 800 amperes, the trip setting will be sealed or locked, and the circuit breakers will have permanent legible labels that will be maintained as legible to identify the circuit breakers as being suitable for protecting #2 AWG cables;
(7)replacement instantaneous trip units used to protect #2 AWG trailing cables will be calibrated to trip at 800 amperes and the setting will be sealed or locked;
(8)the designated operator will visually examine the trailing cables during each production day to ensure that the cables are operating safely and the instantaneous settings of the calibrated breakers do not have seals or locks removed and do not exceed the stipulated settings;
(9)any trailing cable that is not in safe operating condition will be removed from service immediately and repaired or replaced; and
(10)splices or repairs shall be workmanlike, in accordance with manufacturer's instructions and 30 CFR 75.603 and 75.604. Persons may review a complete description of petitioner's alternative method and procedures at the MSHA address listed in the notice. The petitioner states that the alternative method will not be implemented until miners designated to examine the integrity of the seals or locks verify the short-circuit settings, and proper procedures training have been provided for examining trailing cables for defects and damage. The petitioner further states that the miners will be trained in the terms and conditions of the Proposed Decision and Order, and within 60 days the petitioner will submit revisions of its Part 48 training plan to the District Manager that includes task training to comply with the final order. The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection to the miners. *Docket Number:* M-2007-071-C. *Petitioner:* Independence Coal Company. *Mine:* Allegiance Mine, MSHA I.D. No. 46-08735, located in Boone County, West Virginia. *Regulation Affected:* 30 CFR 75.1002 (Installation of electric equipment and conductors; permissibility). *Modification Request:* The petitioner requests a modification of the existing standard to permit the use of a 2400-volt power center to power a continuous miner with high-voltage trailing cable inby the last open crosscut and within 150 feet of pillar workings. The petitioner has listed in this petition specific steps that will be followed. Persons may review a complete description of the proposed steps and procedures at the MSHA address listed in this notice. The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded the miners at the mine by the existing standard. *Docket Number:* M-2007-072-C. *Petitioner:* Harlan-Cumberland Coal Company, LLC, P.O. Box 269, Grays Knob, Kentucky 40829. *Mine:* Totz Preparation Plant, MSHA I.D. No. 15-10657, and Coarse Coal Refuse Fill #1, located in Harlan County, Kentucky. *Regulation Affected:* 30 CFR 77.214 (Refuse piles; general). *Modification Request:* The petitioner requests a modification of the existing standard to permit coarse refuse fill to be constructed over abandoned underground mine openings because the mines are abandoned and all reserves in these mines have been depleted. The petitioner states that:
(1)There are no safety issues that might affect any underground miners;
(2)surface workers at the coal preparation plant will be protected by clearly identifying the openings and insuring that the openings are sealed and/or provided drainage. The petitioner further states that:
(1)The openings at issue have been abandoned since as early as the mid-1900's and as late as the late 1990's and represent no threat to underground miners because all of the affected mine workings/openings are abandoned;
(2)there are no active underground mine workings above or below the abandoned coal seams in this area; and
(3)there are no active workings within 2,000 feet of the coarse refuse fill. The petitioner asserts that the proposed alternative method will achieve and guarantee the same measure of protection afforded by the standard. Dated: January 17, 2008. Jack Powasnik, Deputy Director, Office of Standards, Regulations, and Variances. [FR Doc. E8-1309 Filed 1-24-08; 8:45 am] BILLING CODE 4510-43-P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [Notice 08-010] Notice of Information Collection AGENCY: National Aeronautics and Space Administration (NASA). ACTION: Notice of information collection. SUMMARY: The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)). DATES: All comments should be submitted within 60 calendar days from the date of this publication. ADDRESSES: All comments should be addressed to Dr. Walter Kit, National Aeronautics and Space Administration, Washington, DC 20546-0001. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Dr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JE0000, Washington, DC 20546,
(202)358-1350, *Walter.Kit-1@nasa.gov.* SUPPLEMENTARY INFORMATION: I. Abstract Contractors performing research and development are required by statutes, NASA implementing regulations, and OMB policy to submit reports of inventions, patents, data, and copyrights, including the utilization and disposition of same. The NASA New Technology Summary Report reporting form is being used for this purpose. II. Method of Collection NASA FAR Supplement clauses for patent rights and new technology encourage the contractor to use an electronic form and provide a hyperlink to the electronic New Technology Reporting Web (eNTRe) site *http://invention.nasa.gov.* This website has been set up to help NASA employees and parties under NASA funding agreements ( *i.e.* , contracts, grants, cooperative agreements, and subcontracts) to report new technology information directly, via a secure Internet connection, to NASA. III. Data *Title:* NASA FAR Supplement, Part 1827, Patents, Data, and Copyrights. *OMB Number:* 2700-0052. *Type of review:* Extension of a currently approved collection. *Affected Public:* Business or other for-profit, not-for-profit institutions, Federal Government, and State, Local or Tribal Government. *Estimated Number of Respondents:* 1016. *Estimated Time Per Response:* 0.166 hour. *Estimated Total Annual Burden Hours:* 3,391. *Estimated Total Annual Cost:* $0. IV. Request for Comments *Comments are invited on:*
(1)Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility;
(2)the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology. Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record. Gary Cox, Executive Officer. [FR Doc. E8-1338 Filed 1-24-08; 8:45 am] BILLING CODE 7510-13-P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [Notice 08-011] Notice of Information Collection AGENCY: National Aeronautics and Space Administration (NASA). ACTION: Notice of information collection. SUMMARY: The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)). DATES: All comments should be submitted within 60 calendar days from the date of this publication. ADDRESSES: All comments should be addressed to Dr. Walter Kit, National Aeronautics and Space Administration, Washington, DC 20546-0001. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Dr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JE0000, Washington, DC 20546,
(202)358-1350, *Walter.Kit-1@nasa.gov.* SUPPLEMENTARY INFORMATION: I. Abstract Grantees and cooperative agreement partners are required to submit new technology reports indicating new inventions and patents. II. Method of Collection Grant recipients are encouraged to use information technology to prepare patent reports through a hyperlink to the electronic New Technology Reporting Web (eNTRe) site * http:// invention.nasa.gov. * This website has been created to help NASA employees and parties under NASA funding agreements (i.e., contracts, grants, cooperative agreements, and subcontracts) to report new technology and patent notification directly, via a secure Internet connection, to NASA. III. Data *Title:* Patents—Grants and Cooperative Agreements. *OMB Number:* 2700-0048. *Type of review:* Extension of currently approved collection. *Affected Public:* Business or other for-profit, not-for-profit institutions, Federal Government, and State, Local or Tribal Government. *Estimated Number of Respondents:* 5451. *Estimated Time per Response:* 4,361 negative responses/0.166 Hour, 1090 responses/8 Hours. *Estimated Total Annual Burden Hours:* 9,444. *Estimated Total Annual Cost:* $0. IV. Request for Comments Comments are invited on:
(1)Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility;
(2)the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology. Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record. Gary Cox, Executive Officer. [FR Doc. E8-1340 Filed 1-24-08; 8:45 am] BILLING CODE 7510-13-P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [Notice (08-009)] Aerospace Safety Advisory Panel; Meeting AGENCY: National Aeronautics and Space Administration (NASA). ACTION: Notice of meeting. SUMMARY: In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announce a forthcoming meeting of the Aerospace Safety Advisory Panel. DATES: Wednesday, 1 p.m. to 3 p.m. Eastern Daylight Time. ADDRESSES: 100 Spaceport Way, Cape Canaveral, FL 32920 (Florida Space Authority). FOR FURTHER INFORMATION CONTACT: Ms. Kathy Dakon, Aerospace Safety Advisory Panel Executive Director, National Aeronautics and Space Administration, Washington, DC 20546,
(202)358-0732. SUPPLEMENTARY INFORMATION: The Aerospace Safety Advisory Panel will hold its 1st Quarterly Meeting for 2008. This discussion is pursuant to carrying out its statutory duties for which the Panel reviews, identifies, evaluates, and advises on those program activities, systems, procedures, and management activities that can contribute to program risk. Priority is given to those programs that involve the safety of human flight. The agenda will include Safety Organization and Management, Human Capital, and Constellation Program Safety. The meeting will be open to the public up to the seating capacity of the room. Seating will be on a first-come basis. Please contact Ms. Susan Burch on
(202)358-0550 at least 48 hours in advance to reserve a seat. Visitors will be requested to sign a visitor's register. Photographs will only be permitted during the first 10 minutes of the meeting. During the first 30 minutes of the meeting, members of the public may make a 5-minute verbal presentation to the Panel on the subject of safety in NASA. To do so, please contact Ms. Susan Burch on
(202)358-0914 at least 48 hours in advance. Any member of the public is permitted to file a written statement with the Panel at the time of the meeting. Verbal presentations and written comments should be limited to the subject of safety in NASA. Dated: January 17, 2008. P. Diane Rausch, Advisory Committee Management Officer, National Aeronautics and Space Administration. [FR Doc. E8-1267 Filed 1-24-08; 8:45 am] BILLING CODE 7510-13-P NUCLEAR REGULATORY COMMISSION Entergy Nuclear Fitzpatrick, LLC, and Entergy Nuclear Operations, Inc., James A. Fitzpatrick Nuclear Power Plant; Notice of Availability of the Final Supplement 31 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding the License Renewal of James A. Fitzpatrick Nuclear Power Plant, Docket No. 50-333 Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC, Commission) has published a final site-specific supplement to the “Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS),” NUREG-1437, regarding the renewal of operating license DPR-59 for an additional 20 years of operation for the James A. FitzPatrick Nuclear Power Plant (JAFNPP). JAFNPP is located on Lake Ontario in Oswego County, approximately seven miles northeast of the City of Oswego, New York. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources. As discussed in Section 9.3 of the final Supplement 31, based on:
(1)The analysis and findings in the GEIS;
(2)the Environmental Report submitted by Entergy Nuclear FitzPatrick, LLC, and Entergy Nuclear Operations, Inc.;
(3)consultation with Federal, State, and local agencies;
(4)the NRC staff's own independent review; and
(5)the NRC staff's consideration of public comments, the recommendation of the staff is that the Commission determine that the adverse environmental impacts of license renewal for JAFNPP are not so great that preserving the option of license renewal for energy-planning decision makers would be unreasonable. The final Supplement 31 to the GEIS is publicly available at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, or from the NRC's Agencywide Documents Access and Management System (ADAMS). The ADAMS Public Electronic Reading Room is accessible at *http://adamswebsearch.nrc.gov/dologin.htm.* The Accession Number for the final Supplement 31 to the GEIS is ML080170183. Persons who do not have access to ADAMS, or who encounter problems in accessing the documents located in ADAMS, should contact the NRC's PDR reference staff by telephone at 1-800-397-4209, or 301-415-4737, or by e-mail at *pdr@nrc.gov.* In addition, the libraries: Penfield Library SUNY, 7060 State Route 104, Oswego, New York 13126 and Oswego Public Library, 140-142 East Second Street, Oswego, New York 13126 have agreed to make the final supplement to the GEIS available for public inspection. *For Further Information Contact:* Ms. Jessie M. Muir, Projects Branch 2, Division of License Renewal, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Mail Stop O-11F1, Washington, DC 20555-0001. Ms. Muir may be contacted by telephone at 1-800-368-5642, extension 0491 or via e-mail at *jmm7@nrc.gov.* Dated at Rockville, Maryland, this 18th day of January 2008. For the Nuclear Regulatory Commission. Bo Pham, Acting Branch Chief, Projects Branch 2, Division of License Renewal, Office of Nuclear Reactor Regulation. [FR Doc. E8-1290 Filed 1-24-08; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [Docket No. 40-9073] Notice of License Application Request of Energy Metals Corporation, Casper, WY and Opportunity To Request a Hearing AGENCY: Nuclear Regulatory Commission. ACTION: Notice of license application, and opportunity to request a hearing. DATES: A request for a hearing must be filed by March 25, 2008. FOR FURTHER INFORMATION CONTACT: Paul Michalak, Hydrogeologist, Uranium Recovery Licensing Branch, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC, 20555. Telephone:
(301)415-7612; fax number:
(301)415-5955; e-mail: *pxm2@nrc.gov.* SUPPLEMENTARY INFORMATION: I. Introduction By letter dated October 2, 2007, Energy Metals Corporation—US (EMC), submitted a Source Materials License Application to the Nuclear Regulatory Commission
(NRC)for the Moore Ranch Uranium Project in Campbell County, Wyoming. The Moore Ranch Uranium Project would involve the recovery of uranium by in situ leach
(ISL)extraction techniques. An NRC administrative review, documented in a letter to EMC dated December 20, 2007, found the application acceptable to begin a technical review (Adams Accession No. ML073511649). Before approving the license application, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended, and NRC's regulations. These findings will be documented in a Safety Evaluation Report
(SER)and a site-specific environmental review consistent with the provisions of 10 CFR Part 51. II. Opportunity to Request a Hearing The NRC hereby provides notice that this is a proceeding on an application for a source materials license regarding EMC's proposal to construct and operate the Moore Ranch Uranium Project ISL uranium extraction facility in Campbell County, Wyoming. Any person whose interest may be affected by this proceeding, and who desires to participate as a party, must file a request for a 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 (Aug. 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/requester 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/requester 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/requester has obtained a digital ID certificate, has 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 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 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 submissions. The formal requirements for documents contained 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 March 25, 2008. In addition to meeting other applicable requirements of 10 CFR 2.309, 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 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 which 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 on 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 technical 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 technical (i.e., 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 Technical 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 ten
(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 October 2, 2007 license application and its supporting documentation (i.e., Technical Report and Environmental Report), 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 documents related to this Notice is ML072851218, Redacted Version of Application for USNRC Source Materials License, Moore Ranch Uranium Project, Campbell County, Wyoming. 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 17th day of January, 2008. For the Nuclear Regulatory Commission. Keith I. McConnell, Deputy Director, Decommissioning and Uranium Recovery, Licensing Directorate, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs. [FR Doc. E8-1305 Filed 1-24-08; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Managing Gas Accumulation in Emergency Core Cooling, Decay Heat Removal, and Containment Spray Systems AGENCY: Nuclear Regulatory Commission. ACTION: Notice of Issuance. SUMMARY: The U.S. Nuclear Regulatory Commission
(NRC)has issued Generic Letter
(GL)2008-01 all holders of operating licenses for nuclear power reactors, except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel. The NRC is issuing this GL to address the issue of gas 1 accumulation in the emergency core cooling, decay heat removal (DHR), 2 and containment spray systems (hereinafter referred to as the “subject systems”). Specifically, the NRC is issuing this GL for two purposes: 1 “Gas” as used here includes air, nitrogen, hydrogen, water vapor, or any other void that is not filled with liquid water. 2 DHR, residual heat removal (RHR), and shutdown cooling are common names for systems used to cool the reactor coolant system
(RCS)during some phases of shutdown operation. In this GL, the NRC staff generally uses “DHR.”
(1)To request addressees to submit information to demonstrate that the subject systems are in compliance with the current licensing and design bases and applicable regulatory requirements, and that suitable design, operational, and testing control measures are in place for maintaining this compliance, and
(2)To collect the requested information to determine if additional regulatory action is required. This **Federal Register** notice is available through the NRC's Agencywide Documents Access and Management System (ADAMS) under Accession Number ML080160231. DATES: The GL was issued on January 11, 2008. ADDRESSES: Not applicable. FOR FURTHER INFORMATION, CONTACT: Warren Lyon at 301-415-2897 or by e-mail *wcl@nrc.gov* or David Beaulieu at 301-415-3243 or e-mail *dpb@nrc.gov* . SUPPLEMENTARY INFORMATION: NRC Generic Letter 2008-01 may be examined, and/or copied for a fee, at the NRC's Public Document Room
(PDR)at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the 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 GL is ML070360665. If you do not have access to ADAMS or if you have problems in accessing the documents in ADAMS, contact the NRC 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 16th day of January 2008. For the Nuclear Regulatory Commission. Martin C. Murphy, Chief, Generic Communications Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation. [FR Doc. E8-1302 Filed 1-24-08; 8:45 am] BILLING CODE 7590-01-P OFFICE OF PERSONNEL MANAGEMENT Excepted Service AGENCY: U.S. Office of Personnel Management (OPM). ACTION: Notice. SUMMARY: This gives notice of OPM decisions granting authority to make appointments under Schedules A, B, and C in the excepted service as required by 5 CFR 6.6 and 213.103. FOR FURTHER INFORMATION CONTACT: C. Penn, Group Manager, Executive Resources Services Group, Center for Human Resources, Division for Human Capital Leadership and Merit System Accountability, 202-606-2246. SUPPLEMENTARY INFORMATION: Appearing in the listing below are the individual authorities established under Schedules A, B, and C between December 1, 2007, and December 31, 2007. Future notices will be published on the fourth Tuesday of each month, or as soon as possible thereafter. A consolidated listing of all authorities as of June 30 is published each year. Schedule A No Schedule A appointments were approved for December 2007. Schedule B No Schedule B appointments were approved for December 2007. Schedule C The following Schedule C appointments were approved during December 2007. Section 213.3303 Executive Office of the President Office of Management and Budget BOGS80002 Confidential Assistant to the Associate Director for Natural Resource Programs. Effective December 11, 2007. Office of National Drug Control Policy QQGS80002 Special Assistant to the Director to the Chief of Staff. Effective December 04, 2007. Section 213.3304 Department of State DSGS61103 Staff Assistant to the Under Secretary for Arms Control and Security Affairs. Effective December 4, 2007. DSGS61270 Public Affairs Specialist to the Assistant Secretary for Public Affairs. Effective December 21, 2007. Section 213.3305 Department of the Treasury DYGS00230 Public Affairs Specialist to the Director, Public Affairs. Effective December 27, 2007. DYGS00501 Special Assistant to the Under Secretary for Domestic Finance. Effective December 27, 2007. DYGS00502 Senior Policy Advisor to the Under Secretary for Domestic Finance. Effective December 27, 2007. Section 213.3306 Department of Defense DDGS17120 Special Assistant to the Assistant Secretary of Defense (Health Affairs). Effective December 07, 2007. DDGS17124 Special Events Coordinator to the Assistant Secretary of Defense Public Affairs. Effective December 14, 2007. DDGS17121 Staff Assistant to the Deputy Assistant Secretary of Defense (Middle East). Effective December 18, 2007. DDGS17127 Special Assistant to the Deputy General Counsel Legal Counsel. Effective December 19, 2007. Section 213.3307 Department of the Army DWGS60086 Special Assistant to the General Counsel. Effective December 4, 2007. Section 213.3310 Department of Justice DJGS00069 Confidential Assistant to the Director, Office of Public Affairs. Effective December 7, 2007. DJGS00252 Director of Advance to the Attorney General. Effective December 11, 2007. DJGS00196 Special Assistant to the Chief of Staff. Effective December 20, 2007. Section 213.3311 Department of Homeland Security DMGS00729 Special Assistant to the Chief Privacy Officer. Effective December 07, 2007. DMGS00735 Director of Special Projects and Protocol to the Assistant Secretary for Public Affairs. Effective December 27, 2007. DMGS00736 Director of Strategic Communications to the Assistant Secretary for Public Affairs. Effective December 27, 2007. Section 213.3313 Department of Agriculture DAGS00928 Director of External Affairs to the Administrator, Farm Service Agency. Effective December 7, 2007. DAGS00926 Deputy Chief of Staff to the Chief of Staff. Effective December 14, 2007. DAGS00927 Staff Assistant to the Assistant Secretary for Congressional Relations. Effective December 27, 2007. Section 213.3314 Department of Commerce DCGS00603 Special Assistant to the Under Secretary for International Trade. Effective December 21, 2007. DCGS00154 Senior Advisor to the Under Secretary of Commerce for Industry and Security. Effective December 27, 2007. DCGS00172 Policy Advisor to the Assistant Secretary for Export Administration. Effective December 27, 2007. DCGS00338 Press Secretary to the Director of Public Affairs. Effective December 27, 2007. DCGS00359 Confidential Assistant to the Chief of Staff. Effective December 27, 2007. DCGS00492 Confidential Assistant to the Director of Advance. Effective December 27, 2007. DCGS00561 Legislative Affairs Specialist to the Deputy Under Secretary and Deputy Director of U.S. Patent and Trademark Office. Effective December 27, 2007. DCGS60596 Confidential Assistant to the Director of Public Affairs. Effective December 27, 2007. Section 213.3315 Department of Labor DLGS60263 Special Assistant to the Deputy Assistant Secretary for Labor-Management Programs. Effective December 11, 2007. Section 213.3317 Department of Education DBGS00658 Deputy Assistant Secretary for External Affairs to the Assistant Secretary, Office of Communications and Outreach. Effective December 4, 2007. DBGS00531 Press Secretary to the Assistant Secretary, Office of Communications and Outreach. Effective December 19, 2007. DBGS00644 Chief of Staff for the Office of Communications and Outreach to the Assistant Secretary, Office of Communications and Outreach. Effective December 21, 2007. DBGS00505 Deputy Secretary's Regional Representative, Region 6 to the Director, Regional Services. Effective December 27, 2007. Section 213.3318 Environmental Protection Agency EPGS07031 Deputy Press Secretary to the Associate Administrator for Public Affairs. Effective December 4, 2007. Section 213.3331 Department of Energy DEGS00626 Special Advisor to the White House Liaison. Effective December 11, 2007. Section 213.3379 Commodity Futures Trading Commission CTOT00058 Special Assistant to the Commissioner. Effective December 17, 2007. Section 213.3391 Office of Personnel Management PMGS00065 Attorney—Advisor to the General Counsel. Effective December 7, 2007. Section 213.3393 Pension Benefit Guaranty Corporation BGGS01213 Director, Communications and Public Affairs Department to the Deputy Executive Director, Office of Policy and External Affairs. Effective December 27, 2007. Section 213.3394 Department of Transportation DTGS60301 Associate Director for Governmental Affairs to the Deputy Assistant Secretary for Governmental Affairs. Effective December 4, 2007. Authority: 5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218. U.S. Office of Personnel Management. Howard C. Weizmann, Deputy Director. [FR Doc. E8-1268 Filed 1-24-08; 8:45 am] BILLING CODE 6325-39-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57171; File No. 4-534] Joint Industry Plan; American Stock Exchange LLC, Chicago Board Options Exchange, Incorporated, International Securities Exchange, LLC, New York Stock Exchange LLC, and NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 to the Proposed National Market System Plan for the Selection and Reservation of Securities Symbols January 18, 2008. I. Introduction On March 23, 2007, pursuant to Rule 608 of Regulation NMS under the Act 1 (“Rule 608”), American Stock Exchange LLC (“Amex”), New York Stock Exchange LLC (“NYSE”), and NYSE Arca, Inc. (“NYSE Arca”) filed with the Commission a proposed plan for the purpose of the selection and reservation of securities symbols (“Three-Characters Plan”). On March 23, 2007, The Nasdaq Stock Market, Inc. (“Nasdaq”), National Association of Securities Dealers, Inc. (“NASD”) (n/k/a Financial Industry Regulatory Authority, Inc. (“FINRA”)), 2 National Stock Exchange, Inc. (“NSX”), and Philadelphia Stock Exchange, Inc. (“Phlx”) also filed with the Commission a proposed plan for the purpose of the selection and reservation of securities symbols (“Five-Characters Plan”). On April 23, 2007, the Chicago Stock Exchange, Inc. (“CHX”), Nasdaq, NASD, NSX, and Phlx filed a supplement to the Five-Characters Plan. 3 The proposed plans were published for comment in the **Federal Register** on July 17, 2007. 4 1 17 CFR 242.608. 2 On July 26, 2007, the Commission approved a proposed rule change filed by NASD to amend NASD's Certificate of Incorporation to reflect its name change to Financial Industry Regulatory Authority Inc., or FINRA, in connection with the consolidation of the member firm regulatory functions of NASD and NYSE Regulation, Inc. *See* Securities Exchange Act Release No. 56146 (July 26, 2007), 72 FR 42190 (August 1, 2007). 3 In the Supplement, CHX joined as a party proposing the Five-Characters Plan. In addition, the Supplement contained a revised version of the Five-Characters Plan. The parties to the Five-Characters Plan revised the plan as follows:
(i)Changed the definition of securities for which an SRO must maintain facilities for the quoting and trade reporting of such securities in order to be party to the plan and corresponding changes throughout the plan and
(ii)deleted the statement that new parties to the plan would pay an equal share of all development costs. 4 *See* Securities Exchange Act Release No. 56037 (July 10, 2007), 72 FR 39096 (“Joint Industry Plan Notice”). On August 1, 2007, Amex, Chicago Board Options Exchange, Incorporated (“CBOE”), International Securities Exchange, LLC (“ISE”), NYSE, and NYSE Arca filed Amendment No. 1 to the proposed Three-Characters Plan (“Amendment No. 1”). The Commission requests comment on Amendment No. 1 from interested persons. II. Description of Amendment No. 1 Amendment No. 1 makes the following modifications to the proposed Three-Characters Plan:
(1)Adds two new parties to the proposed plan;
(2)amends the symbol portability provision of the proposed plan with respect to three-character symbols;
(3)clarifies that the Three-Characters Plan covers reservations of one-, two-, and three-character symbols for options under the OPRA Plan; and
(4)minor, non-substantive, technical changes, including re-naming the plan administrator. A. New Parties to the Plan The Three-Characters Plan was originally submitted by Amex, NYSE, and NYSE Arca. The Three-Characters Plan would grant the plan participants the following symbol reservation rights:
(1)NYSE and Amex each would receive the right to reserve 200 symbols without any time or other limitations or restrictions as “perpetual reservations” and 1,500 symbols for a limited time of 24 months as “limited-time reservations”
(2)all other parties would receive the right to reserve 40 perpetual reservations, and
(3)NYSE Arca would receive the right to reserve 500 limited-time reservations. 5 Amendment No. 1 adds CBOE and ISE as signatories to, and participants in, the proposed Three-Characters Plan. In addition, Amendment No. 1 modified the proposed limited-time reservation provision of the plan to grant CBOE the right to reserve 500 limited-time reservations and ISE the right to reserve 200 limited-time reservations. 6 5 *See* Joint Industry Plan Notice *supra* note 4, at 39099-100 for additional details regarding perpetual reservations and limited-time reservations. 6 *See* amended Section IV(b)(1)(B) of the Three-Characters Plan. The Commission requests commenters' views on the amended provisions to the proposed Three-Characters Plan that add CBOE and ISE as parties to the plan and that would grant them the limited-time reservation rights described above. The Commission also requests commenters' views on the number of symbols a self-regulatory organization (“SRO”) should be permitted to reserve as perpetual reservations or limited-time reservations. In particular, the Commission requests commenters' view on any basis on which it would be appropriate for certain SROs to receive more reservations than other SROs. For example, should there be a distinction in the number of limited-time reservations that non-primary listing markets receive? If so, what factors should be taken into account in allotting the number of limited-time reservations? Finally, the Commission requests commenters' views on how these amended provisions would affect new listing markets. B. Symbol Portability The proposed Three-Characters Plan originally provided that, if an SRO lists a security that transferred from another SRO, the SRO from which the issuer delisted its security would have the right to the symbol for that security, unless it consents to the transfer of the symbol to the other SRO. If the SRO to which the issuer transferred its listing believes there is a compelling business reason why it should have the rights to the symbol (if it is a two- or three-character symbol, but not a one-character symbol), such SRO could submit to the Processor the determination of which SRO shall have the rights in that symbol. 7 The Processor could only grant the rights in the symbol to the new SRO if the Processor determines that such SRO's business reasons for obtaining such rights substantially outweigh the business needs of the other SRO to that symbol. The Processor's decision would be final and not subject to appeal. 7 The Three-Characters Plan would not permit disputes over one-character symbols to be submitted to the Processor. Amendment No. 1 modifies this proposed portability provision with respect to three-character symbols. Specifically, an SRO to which a security that uses a three-character symbol transfers its listing would have the rights to that three-character symbol, 8 unless, in the new SRO's discretion, it consents to allowing the former SRO to retain the symbol. The participants to the Three-Character Plan noted that Amendment No. 1 would comport the Three-Characters Plan with a Nasdaq rule recently approved by the Commission, which permits an issuer that has traded under a three-character symbol to continue to use that three-character symbol if the issuer moves its listing to Nasdaq. 9 8 The new SRO would be required to use the three-character symbol to identify the security transferred to its market. 9 *See* Amendment No. 1, Cover Letter at 2. *See also* Securities Exchange Act Release No. 56028 (July 9, 2007), 72 FR 38639 (July 13, 2007) (SR-NASDAQ-2007-031) (approving a rule change to allow a company that transfers its listing to Nasdaq to retain its three-character symbol). . The Commission requests comment on the change in Amendment No. 1 regarding the portability of a three-character symbol to a new listing market when an issuer transfers its listing. When an issuer moves its listing to a new listing market, should either the former listing market or the new listing market retain the right to use the issuer's symbol? How would awarding the rights to the symbol to the former listing market affect competition? How would awarding such rights to the new listing market affect competition? Finally, the Commission requests comment on whether one- and two-character symbols should be subject to the same portability process as three-character symbols. C. Covered Symbols The proposed Three-Characters Plan originally stated that the plan was intended to be the exclusive means of allocating and using symbols of one-, two-, or three-characters, and none of such one-, two-, or three-character symbols were to be allocated or used for securities other than those reflected on “Network A” or “Network B” as those terms are defined in the Consolidated Tape Association Plan (“CTA Plan”). 10 The original Three-Characters Plan also stated that its Symbol Reservation System would cover the allocation of all symbols used to common stocks, other securities or other information disseminated to the public through the facilities operated by, or pursuant to, among other plans, the Options Price Reporting Authority (“OPRA”). Amendment No. 1 amends Section I(b) of the proposed Three-Characters Plan to state that the proposed plan is intended to be the exclusive means of allocating and using symbols of one-, two-, or three-characters for, among other securities, options under OPRA. In addition, Amendment No. 1 revises Section I(b) of the Three-Characters Plan to state that, in the case of “listed equity securities” (as Rule 600(b)(34) of Regulation NMS defines that term) no one-, two-, or three-character symbols would be allocated or used other than for “Network A” or “Network B” “Eligible Securities.” 10 *See* Section I(b) of the original Three-Characters Plan. The Commission requests comment on the amended provision regarding the proposed Three-Characters Plan's scope. In particular, the Commission requests comment on whether it is appropriate that the proposed scope of the Three-Characters Plan include options. Should the Commission approve a plan solely covering equity security symbols or should both equity and option security symbols be covered? Are there other matters with respect to the scope of the plans that commenters believe the Commission should consider? In particular, should only root symbols be covered or should suffixes be included as well? D. Name of the Plan Administrator Amendment No. 1 also made a number of minor, non-substantive technical changes, including modifying the name for the plan administrator. The proposed Three-Characters Plan originally referred to the plan administrator as the “International Symbols Reservation Authority (“ISRA”).” Amendment No. 1 renamed the authority the “Intermarket Symbols Reservation Authority (“ISRA”).” The Commission requests comment on the name of the plan administrator. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed Amendment No. 1 is consistent with the Act. The Commission invites comments on whether the foregoing assures fair competition among all parties, including new listing markets. 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 4-534 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 4-534. The file numbers 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/nms.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed plans that are filed with the Commission, and all written communications relating to the proposed plans 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 4-534 and should be submitted on or before February 15, 2008. By the Commission. Nancy M. Morris, Secretary. [FR Doc. E8-1255 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28125; 812-13213] Morgan Stanley Investment Management Inc., et al., Notice of Application January 18, 2008. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Notice of application for an order under sections 6(c) and 17(b) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 17(a) of the Act. Applicants: Morgan Stanley Investment Management Inc. (“MSIM”), Morgan Stanley Investment Advisors Inc. (“MSIA”), Morgan Stanley AIP GP LP (“MSAIP”), Van Kampen Asset Management (“VKAM”), 1 Active Assets California Tax-Free Trust, Active Assets Government Securities Trust, Active Assets Institutional Government Securities Trust, Active Assets Institutional Money Trust, Active Assets Money Trust, Active Assets Tax-Free Trust, Morgan Stanley California Tax-Free Daily Income Trust, Morgan Stanley New York Municipal Money Market Trust, Morgan Stanley Tax-Free Daily Income Trust, Morgan Stanley Liquid Asset Fund Inc., Morgan Stanley U.S. Government Money Market Trust (each a “Money Market Fund”), 2 Morgan Stanley Select Dimensions Investment Series, Morgan Stanley Variable Investment Series, Morgan Stanley Institutional Fund, Inc., Morgan Stanley Institutional Liquidity Funds, The Universal Institutional Funds, Inc., Morgan Stanley Institutional Fund Trust, Morgan Stanley Allocator Fund, Morgan Stanley Capital Opportunities Trust, Morgan Stanley Developing Growth Securities Trust, Morgan Stanley Dividend Growth Securities Inc., Morgan Stanley Equally-Weighted S&P 500 Fund, Morgan Stanley European Equity Fund Inc., Morgan Stanley Financial Services Trust, Morgan Stanley Focus Growth Fund, Morgan Stanley Fundamental Value Fund, Morgan Stanley Global Advantage Fund, Morgan Stanley Global Dividend Growth Securities, Morgan Stanley Health Sciences Trust, Morgan Stanley Institutional Strategies Fund, Morgan Stanley International Fund, Morgan Stanley International SmallCap Fund, Morgan Stanley International Value Equity Fund, Morgan Stanley Japan Fund, Morgan Stanley Mid-Cap Value Fund, Morgan Stanley Multi-Asset Class Fund, Morgan Stanley Nasdaq-100 Index Fund, Morgan Stanley Natural Resource Development Securities Inc., Morgan Stanley Pacific Growth Fund Inc., Morgan Stanley Real Estate Fund, Morgan Stanley Series Funds, Morgan Stanley Small-Mid Special Value Fund, Morgan Stanley S&P 500 Index Fund, Morgan Stanley Special Growth Fund, Morgan Stanley Special Value Fund, Morgan Stanley Technology Fund, Morgan Stanley Total Market Index Fund, Morgan Stanley Utilities Fund, Morgan Stanley Value Fund, Morgan Stanley Balanced Fund, Morgan Stanley Strategist Fund, Morgan Stanley Convertible Securities Trust, Morgan Stanley Flexible Income Trust, Morgan Stanley FX Series Funds, Morgan Stanley High Yield Securities Inc., Morgan Stanley Income Trust, Morgan Stanley Limited Duration Fund, Morgan Stanley Limited Duration U.S. Government Trust, Morgan Stanley Mortgage Securities Trust, Morgan Stanley U.S. Government Securities Trust, Morgan Stanley California Tax-Free Income Fund, Morgan Stanley Limited Term Municipal Trust, Morgan Stanley New York Tax-Free Income Fund, Morgan Stanley Tax-Exempt Securities Trust, Morgan Stanley Income Securities Inc., Morgan Stanley Prime Income Trust, Morgan Stanley California Insured Municipal Income Trust, Morgan Stanley California Quality Municipal Securities, Morgan Stanley Insured California Municipal Securities, Morgan Stanley Insured Municipal Bond Trust, Morgan Stanley Insured Municipal Income Trust, Morgan Stanley Insured Municipal Securities, Morgan Stanley Insured Municipal Trust, Morgan Stanley Municipal Income Opportunities Trust, Morgan Stanley Municipal Income Opportunities Trust II, Morgan Stanley Municipal Income Opportunities Trust III, Morgan Stanley Municipal Premium Income Trust, Morgan Stanley New York Quality Municipal Securities, Morgan Stanley Quality Municipal Income Trust, Morgan Stanley Quality Municipal Investment Trust, Morgan Stanley Quality Municipal Securities, Morgan Stanley Asia-Pacific Fund, Inc., Morgan Stanley China “A” Share Fund, Morgan Stanley Eastern Europe Fund, Inc., Morgan Stanley Emerging Markets Debt Fund, Inc., Morgan Stanley Emerging Markets Domestic Debt Fund, Inc., Morgan Stanley Emerging Markets Fund, Inc., Morgan Stanley Global Opportunity Bond Fund, Inc., Morgan Stanley High Yield Fund, Inc., Morgan Stanley Opportunistic Municipal High Income Fund, The India Investment Fund, The Latin American Discovery Fund, Inc., The Malaysia Fund, Inc., The Thai Fund, Inc., The Turkish Investment Fund, Inc., Morgan Stanley Institutional Fund of Hedge Funds, Van Kampen U.S. Government Trust, Van Kampen Tax Free Trust, Van Kampen Life Investment Trust, Van Kampen Equity Trust, Van Kampen Equity Trust II, Van Kampen Tax-Exempt Trust, Van Kampen Series Fund, Inc., Van Kampen Trust, Van Kampen Corporate Bond Fund, Van Kampen Government Securities Fund, Van Kampen High Yield Fund, Van Kampen Limited Duration Fund, Van Kampen U.S. Government Trust, Van Kampen Pennsylvania Tax Free Income Fund, Van Kampen Comstock Fund, Van Kampen Enterprise Fund, Van Kampen Equity and Income Fund, Van Kampen Exchange Fund, Van Kampen Growth and Income Fund, Van Kampen Harbor Fund, Van Kampen Pace Fund, Van Kampen Real Estate Securities Fund, Van Kampen Strategic Growth Fund, Van Kampen Reserve Fund, Van Kampen Tax Free Money Fund, Van Kampen High Income Trust II, Van Kampen Senior Loan Fund, Van Kampen Senior Income Trust, Van Kampen Municipal Trust, Van Kampen Ohio Quality Municipal Trust, Van Kampen Trust For Insured Municipals, Van Kampen Trust For Investment Grade Municipals, Van Kampen Trust For Investment Grade New Jersey Municipals, Van Kampen Trust For Investment Grade New York Municipals, Van Kampen Municipal Opportunity Trust, Van Kampen California Value Municipal Income Trust, Van Kampen Massachusetts Value Municipal Income Trust, Van Kampen Pennsylvania Value Municipal Income Trust, Van Kampen Advantage Municipal Income Trust II, Van Kampen Select Sector Municipal Trust, Van Kampen Bond Fund, Van Kampen Dynamic Credit Opportunities Fund (each a “Current Fund,” collectively, the “Current Funds”), any existing or future registered management investment companies and their series that are advised or subadvised by the Advisers (“Future Funds,” Future Funds and Current Funds are collectively the “Funds”), 3 and Morgan Stanley & Co., Inc. (“MS & Co.”). 1 MSIM, MSIA, MSAIP, VKAM are collectively referred to as the Current Advisers. Applicants also seek relief for any other existing or future registered investment adviser which acts as investment adviser or subadviser to a Fund (defined below) and which controls, is controlled by or is under common control (as defined in section 2(a)(9) of the Act) with MS (as defined below) (individually a “Future Adviser” and collectively the “Future Advisers”). The Current Advisers and the Future Advisers are referred to individually as an “Adviser” and collectively as the “Advisers.” Any Adviser that currently intends to rely on the requested order is named as an applicant in the application. Any other Adviser that relies on the order in the future will comply with the terms and conditions of the application. 2 Morgan Stanley Institutional Liquidity Funds also offers six series that operate as money market funds subject to rule 2a-7 under the 1940 Act: Government Portfolio, Government Securities Portfolio, Money Market Portfolio, Prime Portfolio, Tax-Exempt Portfolio, Treasury Portfolio and Treasury Securities Portfolio. Van Kampen Equity Trust II offers two money market funds: Van Kampen Reserve Fund and Van Kampen Tax-Free Money Fund. Morgan Stanley Select Dimensions Investment Series offers one money market fund: Money Market Portfolio. Morgan Stanley Variable Investment Series offers one money market fund: Money Market Portfolio. Van Kampen Life Investment Trust offers one money market fund: Money Market Portfolio. 3 Any existing or future Funds which are money market funds subject to rule 2a-7 and authorized to invest in Money Market Instruments (as defined below) are also “Money Market Funds.” Any Fund that currently intends to rely on the requested order is named as an applicant in the application. Any other Fund that relies on the order in the future will comply with the terms and conditions of the application. Summary of Application: Applicants request an order to permit the Funds to engage in principal transactions in certain money market instruments with MS & Co. Filing Dates: The application was filed on July 7, 2005, and amended on October 9, 2007, and December 26, 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 February 12, 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 may request notification of a hearing by writing to the Commission's Secretary. ADDRESSES: Secretary, Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants: c/o Amy Doberman, Esq., Morgan Stanley Investment Management, 522 Fifth Avenue New York, New York 10036. FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel,
(202)551-6817 or Janet M. Grossnickle, Branch Chief,
(202)551-6821 (Office of Investment Company Regulation, Division of Investment Management). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee from the Commission's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-0102 (tel. 202-551-8090). Applicants' Representations 1. Each Fund is an open-end or closed-end management company registered under the Act and is organized as a business trust or corporation under the laws of various states, as specified in the application. The Current Advisers are wholly owned subsidiaries of Morgan Stanley (“MS”), a Delaware corporation. Each Adviser is (or will be) registered under the Investment Advisers Act of 1940. Each Fund has an investment advisory agreement with the applicable Adviser pursuant to which the Adviser provides investment advisory and management services. MS & Co., a wholly owned subsidiary of MS, is registered as a broker-dealer under the Securities Exchange Act of 1934 (the “1934 Act”). MS & Co., a primary dealer in U.S. Government securities, is one of the largest dealers in the United States in commercial paper, repurchase agreements and other money market instruments. 2. Applicants state that the Advisers and MS & Co. are functionally independent of each other and operate as completely separate entities under the umbrella of MS, the parent holding company. While MS & Co. and the Advisers are under common control, each entity has its own separate officers and employees, is separately capitalized, maintains its own separate books and records and operates on different sides of walls of separation with respect to the Funds and Money Market Instruments. The Advisers also maintain offices physically separate from MS & Co. 3. Investment decisions for the Funds are determined solely by the Advisers. The portfolio managers and other employees that are responsible for the investment of the Funds are employed solely by one of the Advisers (and not MS & Co.), and have lines of reporting responsibility solely within the Advisers. The compensation of personnel assigned to an Adviser will not depend on the volume or nature of trades with MS & Co., except to the extent that such trades may affect the profits and losses of MS and its subsidiaries as a whole. 4. As used in the application, the term Taxable Money Market Instruments refers to taxable securities which are eligible for purchase by money market funds under rule 2a-7, including short-term U.S. Government securities, short-term U.S. Government agency securities, bank money market instruments, bank notes, commercial paper, other short-term fixed income instruments and repurchase agreements. The term Tax-Exempt Money Market Instruments refers to tax-exempt securities which are eligible for purchase by money market funds under rule 2a-7, including conventional municipal notes, tax-exempt commercial paper, variable rate demand notes, put bonds and flexible notes. Money Market Instruments consist of Taxable and Tax-Exempt Money Market Instruments. Each Fund that is not a Money Market Fund is authorized to invest in Taxable Money Market Instruments pursuant to its investment objectives and policies. 5. Trading in Money Market Instruments generally takes place in over-the-counter markets consisting of groups of dealers who are primarily major securities firms or large commercial banks. The money market consists of sophisticated and elaborate telephonic and electronic communications networks among buyers and sellers, which generally precludes being able to obtain a single market price for a given instrument at any given time. Applicants state that the money market (for both Taxable and Tax-Exempt Money Market Instruments) tends to be somewhat segmented. The markets for the different types of instruments will vary in terms of price, volatility, liquidity and availability. With respect to any given type of security or instrument, there may be only a few dealers who can be expected to have the security in inventory and be in a position to quote a favorable price. Applicants also state that different dealers may quote different prices with respect to the same type of instrument because of differing outlooks on future yields, to adjust their inventory or because of competitive pressure (or the lack thereof) to meet other dealers' quotes. Only customers of a dealer may obtain quotations for Money Market Instruments and trade on them. 6. MS & Co. is one of the world's largest dealers in Taxable Money Market Instruments, ranking among the top firms in each of the major markets and product areas. As of September 30, 2007, MS & Co. had become the sixth largest dealer in terms of the number of new U.S. asset-backed commercial paper programs, the most significant part of the commercial paper market by outstanding dollar amounts. Applicants believe that MS & Co. is one of the ten leading dealers in the repurchase agreement market. MS & Co's average outstanding repurchase agreements for December 2006, 2006 to September, 2007 ranged from $154 billion to $206 billion. MS & Co. is an active participant in the public auction market for U.S. Treasuries, being one of only 22 primary dealers and receiving on average from 4% to 9% of the primary distribution of U.S. Treasuries. In secondary trading, MS & Co. ranked as one of the top 5 primary dealers for U.S. Treasuries with maturities under three years for each of the last eight quarters (through the third quarter of 2007). MS & Co. also has been an active participant in the secondary market for government agency securities and ranked fourth in underwriting primary issuances in 2006. MS & Co. is also one of the leading participants in the market for medium-term note (“MTNs”). MTNs are offered continuously in public or private offerings, with maturities beginning at nine months. MTNs represent a significant portion of the longer-term money market investment alternatives because commercial paper is not issued with maturities greater than nine months. From July 2006 to July 2007, MS & Co. ranked as the fifth largest manager or co-manager of MTN programs in terms of proceeds ($88.6 billion) and market share (8.5%). MS & Co. is also a leading manager of issuances of Extendible Liquidity Securities®, a MS proprietary product, which is another longer-term alternative. From July 2000 through October 1, 2007, MS & Co. served as lead manager on 91 EXLs® issuances, which represented 53% of the total aggregate value of all EXLs® issued during that period. 7. MS & Co. also is a major participant in both the primary new issue market and in the secondary dealer market for Tax-Exempt Money Market Instruments. MS & Co. estimates that its market share in the new issue market for Tax-Exempt Money Market Instruments included 13% of conventional notes, 7% of tax-exempt commercial paper and 8% of variable rate demand notes for the first nine months in 2007. Applicants state that there is no comprehensive information published as to the dollar amount and volume of secondary market transactions executed in Tax-Exempt Money Market Instruments. However, MS & Co. believes that it is generally one of the top five secondary market dealers in Tax-Exempt Money Market Instruments. Based upon MS & Co. estimates, MS & Co. was responsible for 8.7% of the trading volume in variable rate demand notes and tax-exempt commercial paper among MS & Co. and nine other leading dealers as of September 30, 2007. MS & Co. estimates its market share in the put bonds market at 12% as of December 31, 2006. 8. Applicants state that over the past few years, the growth in Money Market Instruments has been substantially outpaced by the growth in portfolios which purchase Money Market Instruments, which has contributed to the limited availability of Money Market Instruments to the Funds. 4 Applicants further state that because of consolidation in the money market industry, there is a substantially smaller number of major dealers who are active in the money market than was the case a decade ago. Applicants state that MS & Co. has remained committed to the taxable and tax-exempt money market, and has moved to fill the void left by departing dealers. As the number of dealers with whom the Funds can transact business has decreased, it has become even more important for the Funds to have meaningful access to all of the major dealers in Money Market Instruments in order to diversify each Fund's investments, to maintain portfolio liquidity, and to increase opportunities for obtaining best price and execution with respect to portfolio trades. 4 Applicants state that from 1997 through 2007, the growth of the market in Tax-Exempt Money Market Instruments was 208%, while the growth of tax-exempt money market funds was 276%. For the same period, the growth of Taxable Money Market Instruments was 78%, while the growth of taxable money market funds was 181%. 9. Subject to the general supervision of the board of directors/trustees of each of the Funds (each a “Board”), the Advisers are responsible for making investment decisions and for the placement of portfolio transactions. The Funds have no obligation to deal with any dealer or group of dealers in the execution of their portfolio transactions. When placing orders, an Adviser must attempt to obtain the best net price and the most favorable execution of its orders. In doing so, it takes into account such factors as price, the size, type and difficulty of the transaction involved and the dealer's general execution and operational facilities. The transaction costs of the Funds with respect to Money Market Instruments consist primarily of dealer or underwriter spreads. Spreads vary some based on the type of money market security or the occurrence of turbulent market conditions, but generally spread levels for Taxable Money Market Instruments are in the range of 1 to 5 basis points (.01% to .05%), while spreads for Tax-Exempt Money Market Instruments typically are not greater than 12.5 basis points (0.125%). Applicants' Legal Analysis 1. Applicants request an order pursuant to sections 6(c) and 17(b) of the Act exempting certain transactions from the provisions of section 17(a) of the Act to permit MS & Co., acting as principal,
(a)to sell or purchase Taxable Money Market Instruments to or from the Funds; and
(b)to sell or purchase Tax-Exempt Money Market Instruments to or from the Money Market Funds, subject to the conditions set forth below. 2. Section 17(a) of the Act generally prohibits an affiliated person or principal underwriter of a registered investment company, or any affiliated person of that person, acting as principal, from selling to or purchasing from the registered company, or any company controlled by the registered company, any security or other property. Because an Adviser is an affiliated person of the Funds it advises and MS & Co. and the Advisers are under common control, the Funds are currently prohibited from conducting portfolio transactions with MS & Co. in transactions in which MS & Co. acts as principal. 3. Section 17(b) of the Act provides that the Commission, upon application, may exempt a transaction from the provisions of section 17(a) if evidence establishes that the terms of the proposed transaction, including the consideration to be paid, are reasonable and fair, and do not involve overreaching on the part of any person concerned, and that the proposed transaction is consistent with the policy of the registered investment company concerned and with the general purposes of the Act. Section 6(c) provides that the Commission may conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of the Act or of any rule or regulation 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. 4. Applicants note the following in support of the requested relief:
(a)With over approximately $75 billion invested in Money Market Instruments, the Funds are major buyers and sellers in the tax-exempt and taxable money market with a strong need for access to large quantities of high quality Money Market Instruments. The applicants believe that access to a major dealer as MS & Co. in this market increases the Funds' ability to obtain suitable portfolio securities.
(b)The policy of the Funds of investing in securities with short maturities combined with the active portfolio management techniques employed by the Advisers results in a high level of portfolio activity and the need to make numerous purchases and sales of Money Market Instruments. This high level of portfolio activity emphasizes the importance of increasing opportunities to obtain suitable portfolio securities and best price and execution.
(c)The tax-exempt and taxable money market, including the market for repurchase agreements, is highly competitive, and maintaining a dealer as prominent as MS & Co. in the pool of dealers with which the Funds could conduct principal transactions may provide the Funds with opportunities to purchase and sell Money Market Instruments, including those not available from any other source.
(d)MS & Co. is such a major factor in the tax-exempt and taxable money market that being unable to deal directly with MS & Co. may indirectly deprive the Funds of obtaining best price and execution even when the Funds trade with unaffiliated dealers. 5. Applicants believe that the requested order will provide the Funds with a broader and more complete access to the money market (both taxable and non-taxable) which is necessary to carry out the policies and objectives of each of the Funds in obtaining the best price, execution and quality in all portfolio transactions, and will provide the Funds with important new information sources in the taxable and tax-exempt money market, to the direct benefit of investors in the Funds. Applicants believe that the transactions contemplated by the application are identical to those in which they are currently engaged except for the proposed participation of MS & Co. and that such transactions are consistent with the policies of the Funds as recited in their registration statements and reports filed under the Act. Applicants further believe that the conditions below and the procedures to be followed with respect to transactions with MS & Co. are structured in such a way as to ensure that the transactions will be, in all instances, reasonable and fair, will not involve overreaching on the part of any person concerned, and that the requested exemption is 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' Conditions Applicants agree that any order granting the requested relief will be subject to the following conditions: 1. The exemption shall be applicable to principal transactions in the secondary market and primary or secondary fixed price dealer offerings not made pursuant to underwriting syndicates. With respect to Tax-Exempt Money Market Instruments, principal purchase or sale transactions will be conducted only in Money Market Instruments that are First Tier Securities as defined in rule 2a-7(a)(12)(i) under the Act. With respect to Taxable Money Market Instruments, the principal purchase or sale transactions which may be conducted pursuant to the exemption will be limited to transactions in *Eligible Securities* . 5 Notwithstanding the foregoing, if a Fund purchases a Money Market Instrument meeting the above requirements from MS & Co. and, subsequent to such purchase the security becomes no longer an *Eligible Security* , the Fund may sell the security to MS & Co. in a manner consistent with the requirements of rule 2a-7(c)(6)(i)(B). To the extent a Fund is subject to rule 2a-7, such *Eligible Securities* must meet the portfolio maturity and quality requirements of paragraphs (c)(2) and (c)(3) of rule 2a-7. To the extent a Fund is not subject to rule 2a-7, such *Eligible Securities* must meet the requirements of clauses (i),
(iii)and
(iv)of paragraph (c)(3) of rule 2a-7. Additionally: 5 Italicized terms are defined as set forth in paragraph
(a)of rule 2a-7 under the Act, unless otherwise indicated.
(a)No Fund shall make portfolio purchases pursuant to the exemption that would result directly or indirectly in a Fund investing pursuant to the exemption more than 2% of its *Total Assets* (or, in the case of a Fund that is not subject to rule 2a-7, more than 2% of the total of its cash, cash items and *Eligible Securities* ) in securities which, when acquired by the Fund (either initially or upon any subsequent rollover) are *Second Tier Securities* ; provided that any Fund may make portfolio sales of *Second Tier Securities* pursuant to the exemption without regard to this limitation.
(b)The exemption shall not apply to an *Unrated Security* other than a *Government Security* .
(c)The Funds may engage in repurchase agreements with MS & Co. only if MS & Co. has:
(i)Net capital, as defined in rule 15c3-1 under the 1934 Act, of at least $100 million and
(ii)a record (including the record of predecessors) of at least five years continuous operations as a dealer during which time it engaged in repurchase agreements relating to the kind of security subject to the repurchase agreement. MS & Co. shall furnish the Advisers with financial statements for its most recent fiscal year and the most recent semi-annual financial statements made available to its customers. The Advisers shall determine that MS & Co. complies with the above requirements and with other repurchase agreement guidelines adopted by the Board. Each repurchase agreement will be *Collateralized Fully* .
(d)The exemption shall not apply to any purchase or sale of any security, other than a repurchase agreement, issued by MS or any affiliated person thereof, or to any security subject to a *Demand Feature* or *Guarantee* issued by MS or any affiliated person thereof. For purposes of this requirement, MS will not be considered to be the issuer of a *Demand Feature* or *Guarantee* solely by reason of the fact that MS or an affiliate thereof serves as a remarketing agent for a Money Market Instrument. 2. The relevant Adviser (unless the Board decides that the Fund should make these determinations) will determine with respect to each principal transaction conducted by a Fund pursuant to the order, based upon the information available to the Funds and the Advisers, that the price available from MS & Co. is at least as favorable to the Fund as the prices obtained from two other dealer bids in connection with securities falling within the same category of instrument, quality and maturity (but not necessarily the identical security or issuer) (“price test”). In the case of “swaps” involving trades of one security for another, the price test shall be based upon the transaction viewed as a whole and not upon the two components thereof individually. With respect to each transaction involving repurchase agreements, the relevant Adviser will determine (unless the Board decides that the Fund should make these determinations), based upon the information reasonably available to the Fund and the Advisers, that the income to be earned from the repurchase agreement is at least equal to that available from other sources. In the case of variable rate demand notes, for which dealer bids are not ordinarily available, the Funds will only undertake purchases and sales where the rate of interest to be earned from the variable rate demand note is at least equal to that of variable rate demand notes of comparable quality that are available from other dealers. Neither MS nor any other affiliate thereof (other than the Advisers) will have any involvement with respect to proposed transactions between the Funds and the Advisers and, except to the extent set forth in condition 6(d) below, will not attempt to influence or control in any way the placing by the Funds or the Advisers of orders with MS & Co. 3. Before any principal transaction may be conducted pursuant to the order, the relevant Fund or Adviser must obtain such information as it deems reasonably necessary to determine that the price test (as defined in condition
(2)above) has been satisfied. In the case of each purchase or sale transaction, the relevant Fund or Adviser must make and document a good faith determination with respect to compliance with the price test based on current price information obtained through the contemporaneous solicitation of bona fide offers in connection with securities falling within the same category of instrument, quality and maturity (but not necessarily the identical security or issuer). With respect to variable rate demand notes, contemporaneous solicitation of a bona fide offer will be construed to mean any bona fide offer solicited during the same trading day. With respect to prospective purchases of securities by a Fund, the dealer firms from which prices are solicited must be those who have securities of the same categories and the type desired in their inventories and who are in a position to quote favorable prices with respect thereto. With respect to the prospective sale of securities by a Fund, these dealer firms must be those who, in the experience of the Funds and the Advisers, are in a position to quote favorable prices. Before any repurchase agreements are entered into pursuant to the exemption, the Fund or the Adviser must obtain and document competitive quotations from at least two other dealers with respect to repurchase agreements comparable to the type of repurchase agreement involved, except that if quotations are unavailable from two such dealers, only one other competitive quotation is required. 4. Principal transactions in all Money Market Instruments other than repurchase agreements conducted by a Fund pursuant to the order shall be limited to no more than
(a)an aggregate of 25% of the direct or indirect purchases and 25% of the direct or indirect sales of *Eligible Securities* other than repurchase agreements conducted by that Fund and
(b)an aggregate of 25% of the purchases or sales, as the case may be, by MS & Co. of *Eligible Securities* other than repurchase agreements. Repurchase agreements conducted pursuant to the exemption shall be limited to no more than 10% of
(a)the repurchase agreements directly or indirectly entered into by the relevant Fund and
(b)the repurchase agreements transacted by MS & Co. Principal transactions in Tax-Exempt Money Market Instruments conducted by each Money Market Fund pursuant to the order, shall be limited to no more than an aggregate of 20% of the direct or indirect purchases and 20% of the direct or indirect sales of Tax-Exempt Money Market Instruments by that Money Market Fund. The Adviser or Fund and MS & Co. will measure these limits on an annual basis (the fiscal year of each Fund and of MS & Co.) and shall compute them using the dollar volume of transactions. 5. MS & Co.'s dealer spread regarding any transaction with the Funds will be no greater than its customary dealer spread on similar transactions (with unaffiliated parties) of a similar size during a comparable time period. Its customary dealer spread also will be consistent with the average or standard spread charged by dealers in Money Market Instruments of a similar type and transaction size. 6. The Advisers, on the one hand, and MS & Co. on the other, will operate on different sides of appropriate walls of separation with respect to the Funds and the Money Market Instruments. The walls of separation will include all of the following characteristics, and such others that MS & Co. and the Advisers consider reasonable to facilitate the factual independence of the Advisers from MS & Co.:
(a)Each of the Advisers will maintain offices physically separate from those of MS & Co.
(b)The compensation of persons assigned to any of the Advisers ( *i.e.* , executive, administrative or investment personnel) will not depend on the volume or nature of trades effected by the Advisers for the Funds with MS & Co. under the exemption, except to the extent that such trades may affect the profits and losses of MS and its subsidiaries as a whole.
(c)MS & Co. will not compensate the Advisers based upon its profits or losses on transactions conducted pursuant to the exemption, provided that the allocation of the profits by MS to its shareholders and the determination of general firm-wide compensation of officers and employees, will be unaffected by this undertaking.
(d)Personnel assigned to the Advisers' investment advisory operations on behalf of the Funds will be exclusively devoted to the business and affairs of one or more of the Advisers. Personnel assigned to MS & Co. will not participate in the decision-making process for or otherwise seek to influence the Advisers other than in the normal course of sales and dealer activities of the same nature as are simultaneously being carried out with respect to nonaffiliated institutional clients. Each Adviser, on the one hand, and MS & Co., on the other hand, may nonetheless maintain affiliations other than with respect to the Funds, and in addition with respect to the Funds as follows:
(i)Adviser personnel may rely on research, including credit analysis and reports prepared internally by various subsidiaries and divisions of MS & Co.; and
(ii)The senior executives of MS that have responsibility for overseeing operations of various divisions, subsidiaries and affiliates of MS are not precluded from exercising those functions over the Advisers because they oversee MS & Co. as well, provided that such persons shall not have any involvement with respect to proposed transactions pursuant to the exemption and will not in any way attempt to influence or control the placing by the Funds or any Adviser of orders in respect of Money Market Instruments with MS & Co. 7. The Funds and the Advisers will maintain such records with respect to those transactions conducted pursuant to the exemption as may be necessary to confirm compliance with the conditions to the requested relief. To this end, each Fund shall maintain the following:
(a)An itemized daily record of all purchases and sales of securities pursuant to the exemption, showing for each transaction the following:
(i)The name and quantity of securities;
(ii)the unit purchase or sale price;
(iii)the time and date of the transaction; and
(iv)whether the security was a *First Tier* or *Second Tier Security* . For each transaction (other than variable rate demand notes), these records shall document two quotations received from other dealers for securities falling within the same category of instrument, quality and maturity; including the following:
(i)The names of the dealers;
(ii)the names of the securities;
(iii)the prices quoted;
(iv)the times and dates the quotations were received; and
(v)whether such securities were *First Tier* or *Second Tier Securities* . In the case of variable rate demand notes, the Fund shall maintain the same records except that the rates of return quoted will be substituted for the prices quoted.
(b)Records sufficient to verify compliance with the volume limitations contained in condition
(4)above. MS & Co. will provide the Funds with all records and information necessary to implement this requirement.
(c)Each Fund shall maintain a ledger or record showing, on a daily basis, the percentage of the Fund's *Total Assets* (or, in the case of a Fund not subject to rule 2a-7 the percentage of its total cash, cash items and *Eligible Securities* ) represented by *Second Tier Securities* acquired from MS & Co.
(d)Each Fund shall maintain records sufficient to verify compliance with the repurchase agreement requirements contained in condition 1(c) above. The records required by this condition
(7)will be maintained and preserved in the same manner as records required under rule 31a-1(b)(1) under the Act. 8. The legal and compliance departments of MS & Co. and the Advisers will prepare and administer guidelines for personnel of MS & Co. and the Advisers to make certain that transactions conducted pursuant to the order comply with the conditions set forth in the order and that the parties generally maintain arm's-length relationships. In the training of MS & Co's personnel, particular emphasis will be placed upon the fact that the Funds are to receive rates as favorable as other institutional purchasers buying the same quantities. The legal and compliance departments will periodically monitor the activities of MS & Co. and the Advisers to make certain that the conditions set forth in the order are adhered to. 9. The members of the Board of each of the Funds who are not “interested persons” as defined in Section 2(a)(19) of the Act (“Independent Trustees”) will approve, periodically review, and update as necessary, guidelines for the Funds and the Advisers that are reasonably designed to make certain that the transactions conducted pursuant to the exemption comply with the conditions set forth herein and that the above procedures are followed in all respects. The Independent Trustees will periodically monitor the activities of the Funds and the Advisers in this regard to ensure that these goals are being accomplished. 10. The Board, including a majority of the Independent Trustees, will have approved each Fund's participation in transactions conducted pursuant to the exemption and determined that such participation by the Fund is in the best interests of the Fund and its shareholders. The minutes of the meeting of the Board at which this approval was given must reflect in detail the reasons for the Board's determination. The Board will review no less frequently than annually each Fund's participation in transactions conducted pursuant to the exemption during the prior year and determine whether the Fund's participation in such transactions continues to be in the best interests of the Fund and its shareholders. Such review will include (but not be limited to)
(a)a comparison of the volume of transactions in each type of security conducted pursuant to the exemption to the market presence of MS & Co. in the market for that type of security, which market data may be based on good faith estimates to the extent that current formal data is not reasonably available, and
(b)a determination that the Funds are maintaining appropriate trading relationships with other sources for each type of security to ensure that there are appropriate sources for the quotations required by condition 3. The minutes of the meetings of the Board at which these determinations are made will reflect in detail the reasons for the Board's determinations. For the Commission, by the Division of Investment Management, under delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E8-1304 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57173; File No. SR-BSE-2008-03] Self-Regulatory Organizations; Boston Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the iShares® Russell 2000® Index Fund
(IWM)Option Pilot Program Until March 1, 2008 January 18, 2008. 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 January 16, 2008, the Boston Stock Exchange, Inc. (“Exchange” or “BSE”) 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 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 5 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 the rules of the Boston Options Exchange (“BOX”) to extend an existing pilot program that increases the position and exercise limits for options on the iShares Russell 2000 Index Fund (“IWM”) traded on BOX (“IWM Option Pilot Program”). The text of the rule proposal is available on the Exchange's Web site ( *http://www.bostonstock.com* ), at the offices of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item 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 IWM Option Pilot Program provides for increased position and exercise limits for IWM options traded on BOX. Specifically, the IWM Option Pilot Program increased the position and exercise limits for IWM options from 250,000 contracts to 500,000 contracts. 5 The purpose of the proposed rule change is to extend the IWM Option Pilot Program for an additional 43 day period, through March 1, 2008. 6 The Exchange believes that extending the IWM Option Pilot Program is warranted because maintaining the increased position and exercise limits for IWM options will lead to a more liquid and more competitive market environment for IWM options that will benefit customers interested in this product. The Exchange has received positive feedback from Participants, who have expressed a desire that the IWM Option Pilot Program be renewed. 5 *See* Securities Exchange Act Release No. 55171 (January 25, 2007) 72 FR 4549 (January 31, 2007) (SR-BSE-2007-03) (establishing the IWM Option Pilot Program). 6 *See* Securities Exchange Act Release No. 56051 (July 12, 2007) 72 FR 39469 (July 18, 2007) (SR-BSE-2007-30) (extending the IWM Option Pilot Program through January 18, 2008). The Exchange is not proposing any other changes to the IWM Option Pilot Program. The Exchange represents that it has not encountered any significant problems or difficulties relating to the IWM Option Pilot Program since its inception. The Exchange believes that the above stated reasons justify the IWM Option Pilot Program and requests that the Commission extend the IWM Option Pilot Program for the requested additional pilot period, through March 1, 2008. 7 7 Pursuant to Chapter III, Section 7 of BOX Rules, the exercise limit established for IWM options shall be equivalent to the position limit prescribed for IWM options in Supplementary Material .02 to such section. The increased exercise limits would only be in effect during the pilot period and the proposed extension of that pilot period through March 1, 2008. 2. Statutory Basis The Exchange believes that the proposed rule change 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 because it is designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts and practices, and, in general, to protect investors and the public interest. 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 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 neither solicited nor received comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has designated the proposed rule change as one that:
(1)Does not significantly affect the protection of investors or the public interest;
(2)does not impose any significant burden on competition; and
(3)does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Therefore, the foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act 10 and subparagraph (f)(6) of Rule 19b-4 thereunder. 11 The Exchange has asked the Commission to waive the operative delay to permit the IWM Option Pilot Program extension to become effective prior to the 30th day after filing. 10 15 U.S.C. 78s(b)(3)(A). 11 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) requires a self-regulatory organization to provide 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, 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 fulfilled this requirement. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the benefits of the IWM Option Pilot Program to continue without interruption. 12 Therefore, the Commission designates the proposal operative upon filing. 12 For 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 the proposed rule change, the Commission may summarily abrogate the 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-BSE-2008-03 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-BSE-2008-03. 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 Commissions 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-BSE-2008-03 and should be submitted on or before February 15, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 13 13 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E8-1266 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57169; File No. SR-ISE-2007-110] Self-Regulatory Organizations; International Securities Exchange, LLC; Order Granting Approval of Proposed Rule Change to Expand and Make Permanent the $1 Strike Program January 18, 2008. I. Introduction On November 14, 2007, the International Securities Exchange, LLC (“ISE” 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 proposal to amend its rules relating to the $1 Strike Pilot Program (“Program”). The proposed rule change was published for comment in the **Federal Register** on December 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. 56956 (December 13, 2007), 72 FR 71986 (“Notice”). II. Description of the Proposal The purpose of the proposed rule change is to expand the Program and to request permanent approval of the Program. The Program currently allows ISE to select a total of 5 individual stocks on which an option series may be listed at $1 strike price intervals. To be eligible for selection into the Program, the underlying stock must close below $20 in its primary market on the previous trading day. If selected for the Program, the Exchange may list strike prices at $1 intervals from $3 to $20, but no $1 strike price may be listed that is greater than $5 from the underlying stock's closing price in its primary market on the previous day. The Exchange also may list $1 strikes on any other option class designated by other securities exchanges that employ a similar Program under their respective rules. The Exchange may not list long-term option series (LEAPS) at $1 strike price intervals for any class selected for the Program. The Exchange also is restricted from listing any series that would result in strike prices being $0.50 apart. The Exchange proposes to expand the Program to allow ISE to select a total of 10 individual stocks on which an option series may be listed at $1 strike price intervals. Additionally, ISE proposes to raise the upper limit of the price range on which it may list $1 strikes from $20 to $50. The existing restrictions on listing $1 strikes will continue, *e.g.,* no $1 strike price may be listed that is greater than $5 from the underlying stock's closing price in its primary market on the previous day, and ISE is restricted from listing any series that would result in strike prices being $0.50 apart. ISE concluded from its analysis of the Program that the impact on the automated systems of ISE, OPRA, and market data vendors has been minimal. 4 ISE has represented that it has sufficient capacity to handle an expansion of the Program, as proposed. 4 *See* Notice, *id.* , at 71987 (providing ISE's Program analysis on systems capacity). In its filing with the Commission, ISE stated its belief that $1 strike price intervals provide investors with greater trading opportunities and flexibility by allowing investors to establish equity options positions that are better tailored to meet their investment objectives and that its member firms representing customers have repeatedly requested that ISE seek to expand the Program, both in terms of the number of classes on which an option series may be listed at $1 strike price intervals and the range in which $1 strikes may be listed. The Exchange further stated that it has not detected any material proliferation of illiquid options series resulting from the narrower strike price intervals. For the foregoing reasons, ISE requested that the Program be approved on a permanent basis. III. Commission's Findings and Order Granting Approval of the Proposed Rule Change After careful review and based on the Exchange's representations, 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 in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, 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. 5 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 6 15 U.S.C. 78f(b)(5). Specifically, the Commission believes that the proposed expansion to permit the Exchange to select a total of 10 individual underlying stocks trading at less than $50 on which option series may be listed at $1 strike price intervals, and the request to make the Program permanent, should provide investors with added flexibility in the trading of equity options and further the public interest by allowing investors to establish equity options positions that are better tailored to meet their investment objectives. The Commission also believes that the proposal strikes a reasonable balance between the Exchange's desire to accommodate market participants by offering a wider array of investment opportunities and the need to avoid unnecessary proliferation of options series and the corresponding increase in quotes. The Commission notes that the existing restrictions on listing $1 strike price intervals will continue to apply, *e.g.,* no $1 strike price may be listed
(a)that is greater than $5 from the underlying stock's closing price in its primary market on the previous day, or
(b)that would result in strike prices being $0.50 apart. The Commission expects the Exchange to continue to monitor for options with little or no open interest and trading activity and to act promptly to delist such options. In addition, the Commission expects that ISE will continue to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 7 that the proposed rule change (SR-ISE-2007-110) be, and it hereby is, approved. 7 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 8 Nancy M. Morris, Secretary. 8 17 CFR 200.30-3(a)(12). [FR Doc. E8-1254 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION Release No. 34-57174; File No. SR-NYSEArca-2008-07] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Program for Expanded Position Limits for Options on the iShares® Russell 2000® Index Fund January 18, 2008. 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 January 14, 2008, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) 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 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 is proposing to amend Rule 6.8 in order to extend the pilot program (the “IWM Pilot Program”) that allows for increased position and exercise limits on options overlying the iShares® Russell 2000® Index Fund (“IWM”) traded on the Exchange. The text of the proposed rule change is available on the Exchange's Web site ( *http://www.nyse.com* ), at the Exchange'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 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 IWM Pilot Program provides for increased position and exercise limits for IWM options traded on NYSE Arca. 5 Specifically, the IWM Pilot Program increases the position and exercise limits for IWM options from 250,000 contracts to 500,000 contracts. 6 5 The proposal that established the IWM Pilot Program was designated by the Commission to be effective upon filing. *See* Securities Exchange Act Release No. 55185 (January 29, 2007), 72 FR 5481 (February 6, 2007) (SR-NYSEArca-2007-10). The IWM Pilot Program was subsequently extended and is due to expire on January 18, 2008. *See* Securities Exchange Act Release No. 56021 (July 6, 2007), 72 FR 38115 (July 12, 2007) (SR-NYSEArca-2007-58). 6 Pursuant to Commentary .03 of NYSE Arca Rule 6.9, the exercise limit established under Rule 6.9 for IWM options shall be equivalent to the position limit prescribed for IWM options in Commentary .06 under Rule 6.8. The increased exercise limits would only be in effect during the IWM Pilot Program. The purpose of this rule change is to extend the IWM Pilot Program through March 1, 2008. The Exchange is not proposing any other changes to the IWM Pilot Program at this time. The Exchange believes that maintaining the increased position and exercise limits for IWM options will lead to a more liquid and competitive market environment for IWM options that will benefit all investors interested in trading this product. As a result, the Exchange believes that the above stated reasons justify the IWM Pilot Program and requests that the Commission extend the IWM Pilot Program through March 1, 2008. NYSE Arca represents that it has not encountered any problems or difficulties relating to the IWM Pilot Program since its inception. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) of the Act 7 in that it is 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. 7 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has designated the proposed rule change as one that:
(1)Does not significantly affect the protection of investors or the public interest;
(2)does not impose any significant burden on competition; and
(3)does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Therefore, the foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 8 and subparagraph (f)(6) of Rule 19b-4 thereunder. 9 The Exchange has asked the Commission to waive the operative delay to permit the IWM Pilot Program extension to become effective prior to the 30th day after filing. 8 15 U.S.C. 78s(b)(3)(A). 9 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) requires a self-regulatory organization to provide 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, 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 fulfilled this requirement. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the benefits of the IWM Pilot Program to continue without interruption. 10 Therefore, the Commission designates the proposal operative upon filing. 10 For 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 the proposed rule change, the Commission may summarily abrogate the 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-NYSEArca-2008-07 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-2008-07. 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-2008-07 and should be submitted on or before February 15, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 11 11 17 CFR 200.30-3(a)(12). Nancy M. Morris, Secretary. [FR Doc. E8-1265 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57167; File No. SR-NYSEArca-2008-10] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Closing Time for Options on Exchange-Traded Funds January 17, 2008. 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 January 16, 2008, NYSE Arca, Inc. (“NYSE Arca” or the “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 NYSE Arca. The Exchange filed the proposal as “non-controversial” pursuant to Section 19(b)(3)(A)(iii) 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)(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 NYSE Arca proposes to amend NYSE Arca Rule 7.1 in order to provide the Exchange with flexibility, similar to that of other options exchanges, regarding the time at which options on exchange-traded funds (“ETFs”) cease trading on the Exchange. The text of the proposed rule change is available at the Exchange's principal office, the Commission's Public Reference Room, and *http://www.nysearca.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, NYSE Arca 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 those 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 parts of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend NYSE Arca Rule 7.1 (“Rule”), Trading Sessions, to provide the Exchange with flexibility, similar to that of other options exchanges, regarding the time at which options on ETFs cease trading on the Exchange. The rule currently specifies the trading hours for options on ETFs as commencing at 6:30 a.m. Pacific Time (“PT”) and ending at the same time as the primary listing exchange closes its core trading session in the underlying ETF. Recently, the Exchange submitted a proposed rule change that was effective upon filing that governed the trading hours of options on ETFs. 5 As a result of that proposed rule change, the Exchange synchronized the closing time for options on ETFs with the time at which the underlying ETF closes on its primary listing exchange. In the case of NYSE Arca Equities, starting January 2, 2008, the closing time for its primary listed ETFs changed to 1 p.m. PT. 5 *See* Securities Exchange Act Release No. 57087 (January 2, 2008), 73 FR 1656 (January 9, 2008) (SR-NYSEArca-2008-01). Since that date, the Exchange has closed trading in options on NYSE Arca Equities primary listed ETFs at 1 p.m. PT. For the most part, other options exchanges followed suit. However, certain options exchanges, most notably the Chicago Board Options Exchange (“CBOE”), the American Stock Exchange, and the International Stock Exchange have continued to trade options on iShares Russell 2000 Index Fund (“IWM”), an ETF that is listed on NYSE Arca Equities, until 1:15 p.m. PT. The Exchange, meanwhile, closes trading in options on IWM at 1 p.m. PT in keeping with NYSE Arca Rule 7.1. Although compliant with its rules, the Exchange is operating at a competitive disadvantage because other options exchanges allow their members to trade options on IWM until 1:15 p.m. PT. To address this apparent disadvantage, the Exchange proposes to amend Rule 7.1 similar to CBOE Rule 6.1 so that options on ETFs may be traded on the Exchange until 1:15 p.m. each business day. 6 6 Commentary .01 to CBOE Rule 6.1 states, in part, that “hours during which transactions in options on individual stocks may be made on the Exchange shall correspond to the normal hours for business set forth in the rules of the primary exchange listing the stocks underlying CBOE options.” Commentary .03 to CBOE Rule 6.1 states: “Options on Units, as defined under Interpretation and Policy .06 to Rule 5.3, and options on the Nasdaq-100 Index Tracking Stock may be traded on the Exchange until 3:15 p.m. [Central Time] each business day.” 2. Statutory Basis The proposed rule change is consistent with Section 6(b) of the Act, 7 in general, and furthers the objectives of Section 6(b)(5), 8 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. 7 15 U.S.C. 78f(b). 8 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 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 Because the foregoing proposed 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 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act 9 and Rule 19b-4(f)(6) thereunder. 10 9 15 U.S.C. 78s(b)(3)(A). 10 17 CFR 240.19b-4(f)(6). The Exchance has requested that the Commission waive the requirement that the Exchange provide 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 on which the Exchange filed the proposed rule change pursuant to rule 19b-4(f)(6)(iii). The Commission hereby grants this request. NYSE Arca has requested that the Commission waive the 30-day operative delay and designate the proposed rule change to become operative upon filing. The proposed rule is similar to rules of other exchanges and does not appear to raise any novel or significant regulatory issues. Therefore, the Commission designates the proposed rule change as operative upon filing. 11 11 For the purposes only of waiving the operative date of 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 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 the 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-NYSEArca-2008-10 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-2008-10. 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-2008-10 and should be submitted on or before February 15, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 12 12 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-1303 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28123; 812-13363] The TIGERS Revenue Trust and VTL Associates, LLC; Notice of Application January 18, 2008. AGENCY: Securities and Exchange Commission (“Commission”). ACTION: Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 24(d) of the Act and rule 22c-1 under the Act; under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act; and under section 12(d)(1)(J) of the Act for exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. Summary of the Application: The applicants request an order that would permit
(a)series of open-end management investment companies to issue shares (“Shares”) that can be redeemed only in large aggregations (“Creation Units”);
(b)secondary market transactions in Shares to occur at negotiated prices;
(c)dealers to sell Shares to purchasers in the secondary market unaccompanied by a prospectus when prospectus delivery is not required by the Securities Act of 1933 (“Securities Act”);
(d)certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and
(e)certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the series to acquire Shares. Applicants: The TIGERS Revenue Trust (the “Trust”) and VTL Associates, LLC (the “Adviser”). Filing Dates: The application was filed on February 8, 2007 and amended on September 5, 2007 and December 7, 2007. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in the 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 February 12, 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, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, One Commerce Square, 2005 Market Street, Suite 2020, Philadelphia, PA 19103. FOR FURTHER INFORMATION CONTACT: Barbara T. Heussler, Senior Counsel, at
(202)551-6990, 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 Public Reference Desk, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-0102 (telephone
(202)551-5850). Applicants' Representations 1. The Trust is registered as an open-end management investment company and is organized as a Delaware statutory trust authorized to issue multiple series or portfolios. The Trust intends to offer and sell Shares of at least one or more separate investment portfolios (“each an “Index Fund”). 1 The Adviser is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and will serve as the investment adviser to each Index Fund. The Adviser will enter into a sub-advisory agreement with The Bank of New York (“BNY”) to serve as a sub-adviser with respect to the Initial Index Funds. BNY, and any other sub-adviser to the Index Funds, is or will be registered as an investment adviser under the Advisers Act. Foreside Fund Services, LLC (“Distributor”), a broker-dealer registered under the Securities Exchange Act of 1934 (the “Exchange Act”), will serve as the principal underwriter and distributor for the Index Funds. 1 All Index Funds and the Trust, wherever appropriate, are collectively referred to herein as the “Trust.” The Trust currently intends to offer three series, the TIGERS Revenue-Weighted Large Cap Index Fund, TIGERS Revenue-Weighted Mid Cap Index Fund and TIGERS Revenue-Weighted Small Cap Index Fund (collectively, the “Initial Index Funds”). 2. Each Index Fund will hold certain securities (“Portfolio Securities”) selected to correspond generally to the price and yield performance, before fees and expenses, of a specified index of domestic equity securities (an “Underlying Index”). No entity that creates, compiles, sponsors or maintains an Underlying Index (“Index Provider”) is or will be an affiliated person, as defined in section 2(a)(3) of the Act, or an affiliated person of an affiliated person, of the Trust, its investment adviser (“VTL”), any sub-adviser of a series of the Trust (including BNY), a promoter of the Trust or any of its series, or the Trust's distributor (including Foreside Fund Services, LLC). The Underlying Index for the TIGERS Revenue-Weighted Large Cap Index Fund is the RevenueShares Large Cap Index; the Underlying Index for the TIGERS Revenue-Weighted Mid Cap Index Fund is the RevenueShares Mid Cap Index; and the Underlying Index for the TIGERS Revenue-Weighted Small Cap Index Fund is the RevenueShares Small Cap Index. The Trust may offer additional Index Funds in the future based on other Underlying Indexes comprised of domestic equity securities (“Future Index Funds”). 2 Any Future Index Funds relying on any order granted pursuant to this Application will comply with the terms and conditions stated in this application and will be advised by the Adviser or an entity controlling, controlled by or under common control with the Adviser. 2 For purposes of this Application, references to “Index Funds” include both the Initial Index Funds and all Future Index Funds. 3. The investment objective of each Index Fund will be to provide investment results that correspond generally to the price and yield performance, before fees and expenses, of its Underlying Index. Intra-day values of the Underlying Index will be disseminated every 15 seconds throughout the trading day. An Index Fund will utilize either a “replication strategy” or “representative sampling” which will be disclosed with regard to each Index Fund in its prospectus (“Prospectus”). 3 An Index Fund using a “replication strategy” generally will invest in all of the Component Securities in its Underlying Index in approximately the same weightings as in the Underlying Index. In certain circumstances, such as when there are practical difficulties or substantial costs involved in holding every security in an Underlying Index or when a Component Security is illiquid, an Index Fund may use a “representative sampling” strategy pursuant to which it will invest in some, but not all of the relevant Component Securities. 4 Applicants anticipate that an Index Fund that utilizes a “representative sampling” strategy will not track the price and yield performance of its Underlying Index with the same degree of accuracy as an investment vehicle that invests in every Component Security of the Underlying Index in the same weighting as the Underlying Index. Applicants expect that each Index Fund's tracking error relative to the performance of its Underlying Index should be 5% or less. 3 Applicants represent that an Index Fund will normally invest at least 95% of its total assets in the component securities that comprise its Underlying Index (“Component Securities”). Each Index Fund also may invest up to 5% of its assets in certain futures contracts, options on futures contracts, options, and swaps, as well as cash and cash equivalents, and other securities that are not included in its Underlying Index. 4 Under the “representative sampling” strategy, the Adviser or BNY will seek to construct an Index Fund's portfolio so that its market capitalization, industry weightings, fundamental characteristics (such as return variability, earnings valuation and yield) and liquidity measures perform like those of the Underlying Index. 4. Shares of the Index Funds will be sold in Creation Units of 50,000 Shares, as will be specified in the Index Funds' Prospectus. All orders to purchase Creation Units must be placed with the Distributor by or through a party that has entered into an agreement with the Trust and the Distributor (“Authorized Participant”). An Authorized Participant must be either:
(a)A broker-dealer or other participant in the continuous net settlement system of the National Securities Clearing Corporation (“NSCC”), a clearing agency registered with the Commission; or
(b)a participant (“DTC Participant”) in the Depository Trust Company (“DTC”). Shares of each Index Fund generally will be sold in Creation Units in exchange for an in-kind deposit by the purchaser of a portfolio of securities designated by the Adviser to correspond generally to the price and yield performance, before fees and expenses, of the relevant Underlying Index (the “Deposit Securities”), together with the deposit of a specified cash payment (“Cash Component”). 5 The Cash Component is generally an amount equal to the difference between
(a)the net asset value (“NAV”) (per Creation Unit) of the Index Fund and
(b)the total aggregate market value (per Creation Unit) of the Deposit Securities. 6 Each Index Fund reserves the right to permit, under certain circumstances, a purchaser of Creation Units to substitute cash in lieu of depositing some or all of the requisite Deposit Securities. An investor purchasing or redeeming a Creation Unit from a Fund will be charged a fee (“Transaction Fee”) to prevent the dilution of the interests of the remaining shareholders resulting from costs in connection with the purchase of Creation Units. 7 The maximum Transaction Fees relevant to each Index Fund will be fully disclosed in the Prospectus of such Index Fund and the method for calculating the Transaction Fees will be disclosed in each Index Fund's Prospectus or statement of additional information (“SAI”). Orders to purchase Creation Units will be placed with the Distributor who will be responsible for transmitting the orders to the Trust. The Distributor also will be responsible for delivering the Index Fund's Prospectus to those persons purchasing Creation Units, and for maintaining records of both the orders placed with it and the confirmations of acceptance furnished by it. In addition, the Distributor will maintain a record of the instructions given to the Trust to implement the delivery of Shares. 5 The deposit of the requisite Deposit Securities and the Cash Component are collectively referred to as a “Fund Deposit.” 6 The Trust will sell and redeem Creation Units of each Index Fund on any day that the Index Fund is open for business, including as required by section 22(e) of the Act (a “Business Day”). In addition to the list of names and amount of each security constituting the current Deposit Securities, it is intended that, on each Business Day, the Cash Component effective as of the previous Business Day, per outstanding Share of each Index Fund, will be made available. The Exchanges intend to disseminate, every 15 seconds, during their respective regular trading hours, through the facilities of the Consolidated Tape Association, an approximate amount per Share representing the sum of the estimated Cash Component effective through and including the previous Business Day, plus the current value of the Deposit Securities, on a per Share basis. 7 Where an Index Fund permits an in-kind purchaser to substitute cash in lieu of depositing a portion of the requisite Deposit Securities, the purchaser may be assessed a higher Transaction Fee to cover the cost of purchasing such Deposit Securities, including brokerage costs, and part or all of the spread between the expected bid and the offer side of the market relating to such Deposit Securities. 5. Purchasers of Shares in Creation Units may hold such Shares or may sell such Shares into the secondary market. Shares will be listed and traded on the NYSE Arca, Inc. (the “NYSE”) or another U.S. national securities exchange as defined in section 2(a)(26) of the Act (“Other Exchanges”) (the NYSE and the Other Exchanges are herein each referred to as an “Exchange” and collectively as the “Exchanges”). It is expected that one or more member firms of a listing Exchange will be designated to act as a specialist and maintain a market on the Exchange for Shares trading on the Exchange (the “Exchange Specialist”). If the Nasdaq Stock Market, Inc. (“Nasdaq”) is the listing Exchange, one or more member firms of Nasdaq will act as a market maker (“Market Maker”) and maintain a market on Nasdaq for Shares trading on Nasdaq. 8 Prices of Shares trading on an Exchange will be based on the current bid/offer market. Shares sold on an Exchange will be subject to customary brokerage commissions and charges. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs (which could include institutional investors). An Exchange Specialist or Market Maker, in providing a fair and orderly secondary market for the Shares, may find it appropriate to purchase Creation Units for use in its market-making activities. Applicants expect that secondary market purchasers of Shares will include both institutional investors and retail investors. 9 Applicants expect that the price at which Shares trade will be disciplined by arbitrage opportunities created by the option continually to purchase or redeem Creation Units at their NAV, which should ensure that Shares will not trade at a material discount or premium in relation to their NAV. 8 If Shares are listed on the Nasdaq, no particular Market Maker will be contractually obligated to make a market in Shares, although Nasdaq's listing requirements stipulate that at least two Market Makers must be registered as Market Makers in Shares to maintain the listing. Applicants state that registered Market Makers are required to make a continuous, two-sided market at all times or be subject to regulatory sanctions. 9 Shares will be registered in book-entry form only. DTC or its nominee will be the registered owner of all outstanding Shares. DTC or DTC Participants will maintain records reflecting beneficial owners of Shares. 6. Shares will not be individually redeemable, and owners of Shares may acquire those Shares from the Index Fund, or tender such Shares for redemption to the Index Fund, in Creation Units only. To redeem, an investor will have to accumulate enough Shares to constitute a Creation Unit. Redemption orders must be placed by or through an Authorized Participant. An investor redeeming a Creation Unit generally will receive
(a)Portfolio Securities designated to be delivered for Creation Unit redemptions (“Fund Securities”) on the date that the request for redemption is submitted, which may not be identical to the Deposit Securities required to purchase Creation Units on that date, 10 and
(b)a “Cash Redemption Amount,” consisting of an amount calculated in the same manner as the Cash Component, although the actual amounts may differ if the Fund Securities received upon redemption are not identical to the Deposit Securities on the same day. The relevant Index Fund may also make redemptions in cash in lieu of transferring one or more Fund Securities to a redeeming investor if the Trust determines that it is warranted due to unusual circumstances, such as when a redeeming entity is restrained by regulation or policy from transacting in certain Fund Securities. 10 As a general matter, the Deposit Securities and Fund Securities will correspond pro rata to the Portfolio Securities held by each Fund, but Fund Securities received on redemption may not always be identical to Deposit Securities, which are deposited in connection with the purchase of Creation Units for the same day. The Funds will comply with the federal securities laws in accepting Deposit Securities and satisfying redemptions with Fund Securities, including that the Deposit Securities and Fund Securities are sold in transactions that would be exempt from registration under the Securities Act. 7. Neither the Trust nor any Index Fund will be marketed or otherwise held out as a traditional open-end investment company or a mutual fund. The designation of the Trust and the Index Funds in all marketing materials will be limited to the terms “exchange-traded fund,” an “investment company,” a “fund,” or a “trust.” All marketing materials that describe the method of obtaining, buying or selling Creation Units, or Shares traded on the Exchange, or refer to redeemability, will prominently disclose that Shares are not individually redeemable and that the owners of Shares may purchase or redeem those Shares from the Index Fund in Creation Units only. The same approach will be followed in the SAI, shareholder reports and investor educational materials issued or circulated in connection with the Shares. The Index Funds will provide copies of their annual and semi-annual shareholder reports to DTC Participants for distribution to beneficial owners of Shares. Applicants' Legal Analysis 1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 24(d) of the Act and rule 22c-1 under the Act; under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and
(B)of the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act. 2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or 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. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and protection of investors. Sections 5(a)(1) and 2(a)(32) of the Act 3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Trust to register as an open-end management investment company and issue individual Shares of each Index Fund that are redeemable in Creation Units only. Applicants state that investors may purchase or redeem Creation Units from an Index Fund. Applicants further state that the price at which Shares trade should be disciplined by arbitrage opportunities created by the option to purchase or redeem continually Shares in Creation Units, which should help ensure that Shares will not trade at a material discount or premium in relation to their NAV. Section 22(d) of the Act and Rule 22c-1 Under the Act 4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security, which is currently being offered to the public by or through a principal underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place on the basis of current bid/offer prices and not at an offering price described in the Index Fund's Prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c-1 under the Act. Applicants request an exemption under section 6(c) from these provisions. 5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been intended to:
(a)Prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers;
(b)prevent unjust discrimination or preferential treatment among buyers; and
(c)ensure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and paying investors a little more than the published redemption price. 6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that secondary market transactions in Shares will not cause dilution for owners of such Shares because such transactions do not directly involve Index Fund assets. In addition, secondary market trading in Shares should not create discrimination or preferential treatment among buyers because any variances occurring in prices of the Shares during a given trading day, or from day to day, will be the result of third-party market forces, such as supply and demand. Finally, applicants contend that the proposed distribution system will be orderly because competitive marketplace forces will ensure that the difference between the market price of Shares and their NAV remains narrow. Section 24(d) of the Act 7. Section 24(d) of the Act provides, in relevant part, that the prospectus delivery exemption provided to dealer transactions by section 4(3) of the Securities Act does not apply to any transaction in a redeemable security issued by an open-end investment company. Applicants seek relief from section 24(d) to permit dealers selling Shares to rely on the prospectus delivery exemption provided by section 4(3) of the Securities Act. 11 11 Applicants state that they are not seeking relief from the prospectus delivery requirement for non-secondary market transactions, such as transactions in which an investor purchases Shares from the Trust or an underwriter. Applicants further state that the Prospectus will caution broker-dealers and others that some activities on their part, depending on the circumstances, may result in their being deemed statutory underwriters and subject them to the prospectus delivery and liability provisions of the Securities Act. For example, a broker-dealer firm and/or its client may be deemed a statutory underwriter if it purchases Creation Units from an Index Fund, breaks them down into the constituent Shares, and sells those Shares directly to customers, or if it chooses to couple the creation of a supply of new Shares with an active selling effort involving solicitation of secondary market demand for Shares. Each Index Fund's Prospectus will state that whether a person is an underwriter depends upon all of the facts and circumstances pertaining to that person's activities. Each Index Fund's Prospectus will caution dealers who are not “underwriters” but are participating in a distribution (as contrasted to ordinary secondary market trading transactions), and thus dealing with Shares that are part of an “unsold allotment” within the meaning of section 4(3)(C) of the Securities Act, that they would be unable to take advantage of the prospectus delivery exemption provided by section 4(3) of the Securities Act. 8. Applicants state that Shares are bought and sold in the secondary market in the same manner as closed-end fund shares. Applicants note that transactions in closed-end fund shares are not subject to section 24(d), and thus closed-end fund shares are sold in the secondary market without prospectuses. Applicants contend that Shares likewise merit a reduction in the unnecessary compliance costs and regulatory burdens resulting from the imposition of the prospectus delivery obligations in the secondary market. Because Shares will be listed on an Exchange, prospective investors will have access to information about the product over and above what is normally available about an open-end security. Applicants state that information regarding market price and volume will be continually available on a real time basis throughout the day on brokers' computer screens and other electronic services. The previous day's price and volume information will be published daily in the financial section of newspapers. The Trust intends to maintain a website that will include the Prospectus and SAI, the relevant Underlying Index for each Index Fund, and additional quantitative information that is updated on a daily basis, including daily trading volume, closing price and the NAV for each Index Fund and information about the premiums and discounts at which the Index Fund's Shares have traded. 9. Applicants will arrange for broker-dealers selling Shares in the secondary market to provide purchasers with a product description (“Product Description”) that describes, in plain English, the relevant Index Fund and the Shares it issues. Applicants state that a Product Description is not intended to substitute for a full Prospectus. Applicants state that the Product Description will be tailored to meet the information needs of investors purchasing Shares in the secondary market. Section 12(d)(1) 10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring securities of an investment company if such securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any broker or dealer from selling its shares 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 if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally. 11. Applicants request an exemption to permit management investment companies (“Investing Management Companies”) and unit investment trusts (“Investing Trusts,” collectively with Investing Management Companies, “Investing Funds”) registered under the Act that are not part of the same “group of investment companies,” as defined in section 12(d)(1)(G)(ii) of the Act, as the Trust, to acquire shares of an Index Fund beyond the limits of sections 12(d)(1)(A) and (B). Investing Funds exclude registered investment companies that are, or in the future may be, part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act as the Index Funds. In addition, Applicants request an order that would permit the Distributor and any brokers or dealers (“Brokers”) that are registered under the Exchange Act to knowingly sell shares of the Index Fund to an Investing Fund in excess of the limits of section 12(b)(1)(B). Applicants request that the relief sought apply to:
(a)Index Funds that are advised by the Adviser and in the same group of investment companies as the Trust;
(b)each Investing Fund that enters into a participation agreement with the Index Fund (the “Participation Agreement”); and
(c)any Broker. 12 12 All parties that currently intend to rely on the requested relief from section 12(d)(1) are named as Applicants. Other parties that may rely on the order in the future will comply with the terms and conditions of the application. An Investing Fund may rely on the requested order only to invest in the Index Funds and any Future Index Funds and not in any other registered investment company. 12. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act (the “Investing Fund Adviser”) and may be sub-advised by one or more investment advisers within the meaning of section 2(a)(20)(B) of the Act (each an “Investing Fund SubAdviser”). Any Investing Fund Adviser or Investing Fund SubAdviser will be registered under the Advisers Act. Each Investing Trust will be sponsored by a sponsor (“Sponsor”). 13. Applicants submit that the proposed conditions to the relief requested adequately address the concerns underlying the limits in sections 12(d)(1)(A) and
(B)of the Act, which include concerns about large scale redemptions of the acquired fund's shares, excessive layering of fees, and overly complex fund structures. Applicants believe that the requested exemption is consistent with the public interest and the protection of investors. 14. Applicants believe that neither the Investing Funds nor Investing Fund Affiliates would be able to exert undue influence over the Index Funds. 13 To limit the control that an Investing Fund may have over an Index Fund, applicants propose a condition prohibiting the Investing Fund Adviser or Sponsor, any person controlling, controlled by, or under common control with the Investing Fund Adviser or Sponsor, and any investment company and any issuer that would be an investment company but for sections 3(c)(1) or 3(c)(7) of the Act that is advised or sponsored by the Investing Fund Adviser or Sponsor, or any person controlling, controlled by, or under common control with the Investing Fund Adviser or Sponsor (“Investing Fund's Advisory Group”) from controlling (individually or in the aggregate) an Index Fund within the meaning of section 2(a)(9) of the Act. The same prohibition would apply to any Investing Fund SubAdviser, any person controlling, controlled by or under common control with the Investing Fund SubAdviser, and any investment company or issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act (or portion of such investment company or issuer) advised or sponsored by the Investing Fund SubAdviser or any person controlling, controlled by or under common control with the Investing Fund SubAdviser (“SubAdviser Group”). Applicants propose other conditions to limit the potential for undue influence over the Index Funds, including that no Investing Funds or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Index Fund) will cause an Index Fund to purchase a security in an offering of securities during the existence of any underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (“Affiliated Underwriting”). An “Underwriting Affiliate” is a principal underwriter in any underwriting or selling syndicate that is an officer, director, member of an advisory board, Investing Fund Adviser, Investing Fund SubAdviser, Sponsor, or employee of the Investing Fund, or a person of which any such officer, director, member of an advisory board, Investing Fund Adviser, Investing Fund SubAdviser, Sponsor or employee is an affiliated person. An Underwriting Affiliate does not include a person whose relationship to an Index Fund is covered by section 10(f) of the Act. 13 An “Investing Fund Affiliate” is an Investing Fund Adviser, Investing Fund SubAdviser, Sponsor, promoter, or principal underwriter of an Investing Fund, and any person controlling, controlled by, or under common control with any of those entities. An “Index Fund Affiliate” is an investment adviser, promoter, or principal underwriter of an Index Fund, and any person controlling, controlled by, or under common control with any of those entities. 15. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” (within the meaning of section 2(a)(19) of the Act), will find that the advisory fees charged under the advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Index Fund in which the Investing Management Company may invest. Except as provided in condition 11, an Investing Fund Adviser, or trustee or Sponsor of an Investing Trust will waive fees otherwise payable to it by the Investing Management Company or Investing Trust in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Index Fund under rule 12b-1 under the Act) received by the Investing Fund Adviser or trustee or Sponsor to the Investing Trust or an affiliated person of the Investing Fund Adviser, trustee or Sponsor from the Index Funds in connection with the investment by the Investing Management Company or Investing Trust in the Index Fund. Applicants state that any sales loads or service fees charged with respect to shares of the Investing Fund will not exceed the limits applicable to a fund of funds as set forth in Conduct Rule 2830 of the National Association of Securities Dealers, Inc. (“NASD”). 16. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Index Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission that allows the Index Fund to purchase shares of a money market fund for short-term cash management purposes. To ensure that Investing Funds comply with the terms and conditions of the requested relief from section 12(d)(1) of the Act, a Participation Agreement will be entered into between the Index Fund and the Investing Fund. The Participation Agreement will require the Investing Fund to adhere to the terms and conditions of the requested order. The Participation Agreement will include an acknowledgment from the Investing Fund that it may rely on the requested order only to invest in the Index Funds and not in any other registered investment company. Applicants represent that each Investing Fund will represent in the Participation Agreement that if it exceeds the 5% or 10% limitation in section 12(d)(1)(A)(ii) and
(iii)of the Act, it will disclose in its prospectus that it may invest in the Index Funds, and disclose in “plain English” in its prospectus the unique characteristics of doing so, including but not limited to, the expense structure and any additional expenses of investing in the Index Funds. Each Investing Fund will also be required to represent in the Participation Agreement that it will comply with the disclosure requirements set forth in Investment Company Act Release No. 27399 (June 20, 2006). 17. Applicants also note that an Index Fund may choose to reject a direct purchase by an Investing Fund. To the extent that an Investing Fund purchases Shares in the secondary market, the Index Fund would still retain its ability to reject purchases of Shares made in reliance on this order by declining to enter into the Participation Agreement prior to any investment by an Investing Fund in excess of the limits of section 12(d)(1)(A). Section 17(a)(1) and
(2)of the Act 18. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or affiliated persons of affiliated persons (“Second-Tier Affiliate”) from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” to include
(a)any person directly or indirectly owning, controlling or holding with power to vote 5% or more of the outstanding voting securities of the other person,
(b)any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with the power to vote by the other person, and
(c)any person directly or indirectly controlling, controlled by or under common control with the other person. Section 2(a)(9) of the Act further states that a control relationship will be presumed where one person owns more than 25% of another person's voting securities. In addition, the Index Funds may be deemed to be controlled by the Adviser or an entity controlling, controlled by or under common control with the Adviser and hence affiliated persons of each other. The Index Funds also may be deemed to be under common control with any other registered investment company (or series thereof) advised by the Adviser or an entity controlling, controlled by or under common control with the Adviser (an “Affiliated Fund”). Applicants state that if Creation Units of all of the Index Funds or of one or more particular Index Funds are held by twenty or fewer investors, including an Exchange Specialist or Market Maker, some or all of such investors will be 5% owners of the Trust or such Index Funds, and one or more investors may hold in excess of 25% of the Trust or such Index Funds. Such investors would be deemed to be affiliated persons of the Trust or such Index Funds. 19. Applicants request an exemption from section 17(a) of the Act pursuant to sections 17(b) and 6(c) of the Act to permit persons that are affiliated persons or Second-Tier Affiliates of the Index Funds solely by virtue of:
(a)Holding 5% or more, or in excess of 25%, of the outstanding Shares of one or more Index Funds;
(b)having an affiliation with a person with an ownership interest described in (a); or
(c)holding 5% or more, or more than 25%, of the Shares of one or more Affiliated Funds, to effectuate in-kind purchases and redemptions. Applicants further request exemptive relief pursuant to sections 6(c) and 17(b) of the Act to permit an Index Fund, 5% or more of whose Shares are held by an Investing Fund prior to a particular purchase or redemption transaction, to sell its Shares to and redeem its Shares from an Investing Fund. 20. Applicants assert that no useful purpose would be served by prohibiting these types of affiliated persons from making in-kind purchases or in-kind redemptions of Shares of an Index Fund in Creation Units. The deposit procedures for both in-kind purchases and in-kind redemptions of Creation Units will be effected in exactly the same manner. Deposit Securities and Fund Securities will be valued in the same manner as Portfolio Securities. Therefore, applicants state that in-kind purchases and in-kind redemptions will afford no opportunity for the affiliated persons of an Index Fund, or the Second-Tier Affiliates, to effect a transaction detrimental to other holders of Shares. Applicants also believe that in-kind purchases and redemptions will not result in self-dealing or overreaching of the Index Fund. 21. Applicants also seek relief from section 17(a) of the Act for any transaction in Creation Units directly between an Index Fund and any Investing Fund that owns 5% or more of an Index Fund prior to such transaction. 14 Applicants state that the terms of the transactions are fair and reasonable and do not involve overreaching. Applicants note that any consideration paid by an Investing Fund for the purchase or redemption of Shares directly from an Index Fund will be based on the NAV of the Index Fund. 15 Applicants state that the proposed transactions will be consistent with the policies of each Index Fund and Investing Fund and with the general purposes of the Act. The Participation Agreement will require any Investing Fund that purchases Creation Units directly from an Index Fund to represent that purchases of Creation Units from an Index Fund by an Investing Fund will be accomplished in compliance with the investment restrictions of the Investing Fund and will be consistent with the investment policies set forth in the Investing Fund's registration statement. 14 Applicants acknowledge that receipt of compensation by
(a)an affiliated person of an Investing Fund, or an affiliated person of such person, for the purchase by the Investing Fund of Shares of an Index Fund or
(b)an affiliated person of an Index Fund, or an affiliated person of such person, for the sale by the Index Fund of its Shares to an Investing Fund may be prohibited by section 17(e)(1) of the Act. The Participation Agreement also will include this acknowledgment. 15 To the extent that purchases and sales of shares of an Index Fund occur in the secondary market and not through principal transactions directly between an Investing Fund and an Index Fund, relief from section 17(a) would not be necessary. However, the requested relief would apply to direct sales of Shares in Creation Units by an Index Fund to an Investing Fund and redemptions of those Shares. Applicants' Conditions Applicants agree that any order of the Commission granting the requested relief to permit the operations of the Index Funds will be subject to the following conditions: 1. Each Index Fund's Prospectus and Product Description will clearly disclose that, for purposes of the Act, Shares are issued by the Index Fund and that the acquisition of Shares by investment companies is subject to the restrictions of section 12(d)(1) of the Act, except as permitted by an exemptive order that permits registered investment companies to invest in an Index Fund beyond the limits of section 12(d)(1) of the Act, subject to certain terms and conditions, including that the registered investment company enter into a Participation Agreement with the Trust regarding the terms of the investment. 2. As long as the Trust operates in reliance on the requested order, the Shares will be listed on an Exchange. 3. Neither the Trust nor any Index Fund will be advertised or marketed as an open-end fund or a mutual fund. Each Index Fund's Prospectus will prominently disclose that the Shares are not individually redeemable shares and will disclose that the owners of the Shares may acquire those Shares from the Index Fund and tender those Shares for redemption to the Index Fund in Creation Units only. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that the Shares are not individually redeemable, and that owners of Shares may acquire those Shares from the Index Fund and tender those Shares for redemption to the Index Fund in Creation Units only. 4. The website for the Trust, which will be publicly accessible at no charge, will contain the following information, on a per Share basis, for each Index Fund:
(i)The prior Business Day's NAV and the reported closing price, and a calculation of the premium or discount of such price against such NAV; and
(ii)data in chart format displaying the frequency distribution of discounts and premiums of the daily closing price against the NAV, within appropriate ranges, for each of the four previous calendar quarters. In addition, the Product Description for each Index Fund will state that the website for the Trust has information about the premiums and discounts at which the Shares have traded. 5. The Prospectus and annual report for each Index Fund also will include:
(i)The information listed in condition 4(ii),
(a)in the case of the Prospectus, for the most recently completed year (and the most recently completed quarter or quarters, as applicable), and
(b)in the case of the annual report, for the immediately preceding five years, as applicable; and
(ii)the following data, calculated on a per Share basis for one, five and ten year periods (or the life of the Index Fund):
(a)The cumulative total return and the average annual total return based on NAV and closing price, and
(b)the cumulative total return of the relevant Underlying Index. 6. Before an Index Fund may rely on this order, the Commission will have approved, pursuant to rule 19b-4 under the Exchange Act, an Exchange rule requiring Exchange members and member organizations effecting transactions in Shares to deliver a Product Description to purchasers of Shares. The Applicants agree that any order of the Commission granting the requested relief from section 12(d)(1) will be subject to the following conditions: 7. The members of an Investing Fund's Advisory Group will not control (individually or in the aggregate) an Index Fund within the meaning of section 2(a)(9) of the Act. The members of the SubAdviser Group will not control (individually or in the aggregate) an Index Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Index Fund, an Investing Fund's Advisory Group or the SubAdviser Group, each in the aggregate, becomes a holder of more than 25% of the outstanding voting securities of an Index Fund, it will vote its shares of the Index Fund in the same proportion as the vote of all other holders of the Index Fund's shares. This condition does not apply to the SubAdviser Group with respect to an Index Fund for which the Investing Fund SubAdviser or a person controlling, controlled by, or under common control with the Investing Fund SubAdviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act. 8. No Investing Fund or Investing Fund Affiliate will cause any existing or potential investment by the Investing Fund in an Index Fund to influence the terms of any services or transactions between the Investing Fund or Investing Fund Affiliate and the Index Fund or Index Fund Affiliate. 9. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to assure that the Investing Fund's Adviser and any Investing Fund SubAdviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or an Investing Fund Affiliate from an Index Fund or an Index Fund Affiliate in connection with any services or transactions. 10. Once an investment by an Investing Fund in the securities of an Index Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Trust's Board of Trustees (“Board”), including a majority of the disinterested Board members, will determine that any consideration paid by an Index Fund to the Investing Fund or an Investing Fund Affiliate in connection with any services or transactions:
(i)Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Index Fund;
(ii)is within the range of consideration that the Index Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and
(iii)does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Index Fund and its investment adviser(s), or any person controlling, controlled by, or under common control with such investment adviser(s). 11. An Investing Fund Adviser, or a trustee or Sponsor of an Investing Trust will waive fees otherwise payable to it by the Investing Management Company or Investing Trust in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Index Fund under rule 12b-1 under the Act) received from an Index Fund by the Investing Fund Adviser, trustee, or Sponsor to the Investing Trust or an affiliated person of the Investing Fund Adviser, trustee or Sponsor, other than any advisory fees paid to the Investing Fund Adviser, trustee or Sponsor or an affiliated person of the Investing Fund Adviser, trustee or Sponsor by the Index Fund, in connection with the investment by the Investing Management Company or Investing Trust in the Index Fund. Any Investing Fund SubAdviser will waive fees otherwise payable to the Investing Fund SubAdviser, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from an Index Fund by the Investing Fund SubAdviser, or an affiliated person of the Investing Fund SubAdviser, other than any advisory fees paid to the Investing Fund SubAdviser or its affiliated person by the Index Fund, in connection with the investment by the Investing Management Company in the Index Fund made at the direction of the Investing Fund SubAdviser. In the event that the Investing Fund SubAdviser waives fees, the benefit of the waiver will be passed through to the Investing Management Company. 12. No Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Index Fund) will cause an Index Fund to purchase a security in any Affiliated Underwriting. 13. The Board, including a majority of the disinterested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by an Index Fund in an Affiliated Underwriting once an investment by an Investing Fund in Shares of the Index Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Index Fund. The Board will consider, among other things:
(i)Whether the purchases were consistent with the investment objectives and policies of the Index Fund;
(ii)how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and
(iii)whether the amount of securities purchased by the Index Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders. 14. Each Index Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Investing Fund in the securities of the Index Fund exceeds the limits in section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made. 15. Before investing in an Index Fund in excess of the limits in section 12(d)(1)(A), the Investing Fund and the Index Fund will execute a Participation Agreement stating, without limitation, that their boards of directors or trustees and their investment advisers, and the trustee and Sponsor of an Investing Trust, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in Shares of an Index Fund in excess of the limit in section 12(d)(1)(A)(i), an Investing Fund will notify the Index Fund of the investment. At such time, the Investing Fund will also transmit to the Index Fund a list of names of each Investing Fund Affiliate and Underwriting Affiliate. The Investing Fund will notify the Index Fund of any changes to the list of names as soon as reasonably practicable after a change occurs. The Index Fund and the Investing Fund will maintain and preserve a copy of the order, the Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place. 16. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Index Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company. 17. Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in Conduct Rule 2830 of the NASD. 18. No Index Fund will acquire securities of any investment company or company relying on sections 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission that allows the Index Fund to purchase shares of a money market fund for short-term cash management purposes. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Nancy M. Morris, Secretary. [FR Doc. E8-1253 Filed 1-24-08; 8:45 am] BILLING CODE 8011-01-P TENNESSEE VALLEY AUTHORITY No FEAR Act AGENCY: Tennessee Valley Authority (TVA). ACTION: No FEAR Act Notice. SUMMARY: 5 CFR part 724.202 requires that each Federal agency provide notice in the **Federal Register** to its employees, former employees, and applicants for employment about the rights and remedies available under the Antidiscrimination Laws and Whistleblower Protection Laws. No FEAR Act Notice On May 15, 2002, Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, which is now known as the No FEAR Act. One purpose of the Act is to require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws. Public Law 107-174, Summary. In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” Public Law 107-174, Title I, General Provisions, section 101(1). The Act also requires this agency to provide this notice to Federal employees, former Federal employees and applicants for Federal employment to inform you of the rights and protections available to you under federal antidiscrimination and whistleblower protection laws. Antidiscrimination Laws A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, or disability. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16. If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an Equal Employment Opportunity
(EEO)counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency. *See, e.g.* 29 CFR 1614. If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission
(EEOC)within 180 calendar days of the alleged discriminatory action. Whistleblower Protection Laws A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of a disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street, NW., Suite 218, Washington, DC 20036-4505 or online through the OSC Web site— *http://www.osc.gov.* Retaliation for Engaging in Protected Activity A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination Laws and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy. Disciplinary Actions Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection Laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination. Additional Information For further information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate offices within the Tennessee Valley Authority (e.g., Equal Opportunity Compliance, Human Resources, the Office of the Inspector General, and TVA's Ombudsman). Additional information regarding Federal antidiscrimination, whistleblower protection and retaliation laws can be found at the EEOC Web site— *http://www.eeoc.gov* and the OSC Web site— *http://www.osc.gov.* Existing Rights Unchanged Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States. FOR FURTHER INFORMATION CONTACT: Linda J. Sales-Long, 865-632-2515. Dated: January 17, 2008. Linda J. Sales-Long, Director, Equal Opportunity Compliance. [FR Doc. E8-1242 Filed 1-24-08; 8:45 am] BILLING CODE 8120-08-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Availability of Draft Purpose and Need Working Paper for the Proposed Southern Nevada Supplemental Airport, Las Vegas, Clark County, NV AGENCY: Federal Aviation Administration. ACTION: Notice of Availability of Draft Purpose and Need Working Paper. SUMMARY: The Federal Aviation Administration (FAA), in cooperation with the Bureau of Land Management (BLM), is issuing this notice to advise the public that the Draft Purpose and Need Working Paper for the Draft EIS will be made available for public comment pursuant to section 304 of the Vision 100 Century of Aviation Act of 2003 (Pub. L. 108-176) [49 U.S.C. 47171(l)]. The Draft Purpose and Need Working Paper has been prepared for the construction and operation of the proposed Southern Nevada Supplemental Airport, located along Interstate Highway 15 about 30 miles south of Las Vegas, Clark County, Nevada. FAA is seeking comments on the Draft Purpose and Need Working Paper. FOR FURTHER INFORMATION CONTACT: Andrew Brooks, Environmental Protection Specialist, AWP-610.6, Airports Division, Federal Aviation Administration, Western-Pacific Region, P.O. Box 92007, Los Angeles, California 90009-2007, Telephone: 650/922-1899. Comments on the Draft Purpose and Need Working Paper should be submitted to the address above and must be received no later than 5 p.m. Pacific Standard Time, Friday, February 29, 2008. SUPPLEMENTARY INFORMATION: The Federal Aviation Administration (FAA), in cooperation with the Bureau of Land Management (BLM), is preparing a Draft Environmental Impact Statement for the proposed Southern Nevada Supplemental Airport (SNSA). The need to prepare an Environmental Impact Statement
(EIS)is based on the procedures described in FAA Order 1050.1E, *Environmental Impacts: Policies and Procedures,* FAA Order 5050.4B, *National Environmental Policy Act
(NEPA)Implementing Instructions for Airport Actions,* and BLM NEPA *Handbook H-1790-1.* Further, the FAA and BLM are preparing this EIS jointly pursuant to the Ivanpah Valley Airport Lands Transfer Act of 2000, (Pub. L. 106-362). Clark County proposes to build the airport along Interstate Highway 15 north of the Nevada/California border about 30 miles south of Las Vegas, between Primm and Jean in Clark County, Nevada. The purpose of the proposed airport is to provide additional capacity to accommodate the forecasted growth in air carrier aircraft operations and aviation passenger demand into the Las Vegas area. This airport would supplement existing air carrier capacity at McCarran International Airport (LAS). The Draft EIS is also being prepared by FAA and BLM pursuant to the National Environmental Policy Act of 1969. FAA and BLM are making the Draft Purpose and Need Working Paper available to the public and governmental agencies for review and comment. This working paper contains information that the FAA and BLM will include into the Purpose and Need Section of the Draft EIS. FAA and BLM will consider all comments received for the purpose of developing future documents supporting the Draft EIS. FAA and BLM will accept comments on the Draft Purpose and Need Working Paper until 5 p.m. Pacific Standard Time, Friday, February 23, 2008. Copies of the Draft Purpose and Need Working Paper are available for public review at the following locations during normal business hours: U.S. Department of Transportation, Federal Aviation Administration, Western-Pacific Region, Office of the Airports Division, 15000 Aviation Boulevard, Hawthorne, California 90261 U.S. Department of Transportation, Federal Aviation Administration, National Headquarters, Office of Airports, Planning and Environmental Needs Division, 800 Independence Avenue, SW., Washington, DC 20591 Bureau of Land Management, Las Vegas Field Office, 4701 North Torrey Pines, Las Vegas, Nevada 89130 The document is also available for public review at the following libraries and other locations and at the following Web site: *http://www.snvairporteis.com:* Boulder City Public Library, 701 Adams Boulevard, Boulder City, Nevada 89005 Gibson Library, 280 South Water Street, Henderson, Nevada 89015-7288 Pittman Library, 1608 Moser Drive, Henderson, Nevada 89015-4323 Paseo Verde Library, 280 South Green Valley Parkway, Henderson, Nevada 89012-2301 Malcolm Library, 2960 Sunridge Heights Parkway, Henderson, Nevada 89052 Clark County Law Library, 309 South 3rd Street, Suite 400, Las Vegas, Nevada 89155 Lied Library—UNLV, 4505 Maryland Parkway, Las Vegas, Nevada 89104 UNLV Libraries Government Publications, 4505 Maryland Parkway, Las Vegas, Nevada 89101 Nevada State Library and Archives, 716 N. Carson Street, Suite B, Carson City, Nevada 89701 North Las Vegas Library District, 2300 Civic Center Drive, North Las Vegas, Nevada 89030-5839 Aliante Branch Library, 2400 Deer Springs Way, North Las Vegas, Nevada 89084 Pahrump Community Library District, 701 East Street, Pahrump, Nevada 89048-0578 White Pine County Library, 950 Campton Street, Ely, Nevada 89301-1965 Clark County Library, 1401 East Flamingo Road, Las Vegas, Nevada 89119-5256 Goodsprings Library, 365 West San Pedro Avenue, Goodsprings, Nevada 89019-0667 Lincoln County Library, 63 Main Street, P.O. Box 330, Pioche, Nevada 89043-0330 Alamo Branch Library, 100 South First West, P.O. Box 239, Alamo, Nevada 89001-0239 Caliente Branch Library, 100 Depot Avenue, P.O. Box 306, Caliente, Nevada 89008-0306 Searchlight Library, 200 Michael Wendal Way, Searchlight, Nevada 89046 Sandy Valley Library, 650 W. Quartz Avenue, Sandy Valley, Nevada 89019 Mt. Charleston Library, 1252 Aspen Avenue, Las Vegas, Nevada 89124 Moapa Valley Library, 350 N. Moapa Valley Blvd., Overton, Nevada 89040 Laughlin Library, 2840 S. Needles Hwy., Laughlin, Nevada 89020 Blue Diamond Library, 14 Cottonwood Drive, Blue Diamond, Nevada 89004 Moapa Town Library, 1340 E. Highway 168, Moapa, Nevada 89025 Indian Springs Library, 715 Gretta Lane, Indian Springs, Nevada 89018 Bunkerville Library, 150 W. Virgin Street, Bunkerville, Nevada 89007 Mesquite Library, 121 W. First Street, Mesquite, Nevada 89027 Enterprise Library, 25 E. Shelbourne Way, Las Vegas, Nevada 89123 Green Valley Library, 2797 N. Green Valley Parkway, Henderson, Nevada 89014 Las Vegas Library, 833 Las Vegas Blvd. North, Las Vegas, Nevada 89101 Meadows Library, 300 W. Boston Ave. Las Vegas, Nevada 89102 Rainbow Library, 3150 N. Buffalo Drive, Las Vegas, Nevada 89128 Sahara West Library, 9600 W. Sahara Avenue, Las Vegas, Nevada 89177 Spring Valley Library, 4280 S. Jones Blvd, Las Vegas, Nevada 89103 Sunrise Library, 5400 Harris Avenue, Las Vegas, Nevada 89110 Summerlin Library, 1771 Inner Circle Drive, Las Vegas, Nevada 89134 West Charleston Library, 6301 W. Charleston Blvd., Las Vegas, Nevada 89146 West Las Vegas Library, 951 W. Lake Mead Blvd., Las Vegas, Nevada 89106 Whitney Library, 5175 E. Tropicana Avenue, Las Vegas, Nevada 89106 University of Nevada Las Vegas, 4505 Maryland Parkway Box 457001, Building LLB 1173, MS 7033, Las Vegas, Nevada 89154-7001 William S. Boyd School of Law, UNLV, 4505 Maryland Parkway, Box 451003, Las Vegas, Nevada 89154-1003 Nevada State College, 1125 Nevada State Drive, Henderson, Nevada 89015 Cambridge Recreation Center, 3930 Cambridge St., Las Vegas, Nevada 89119 Paradise Recreation Center, 4775 McLeod Dr., Las Vegas, Nevada 89121 Silver Springs Recreation Center, 1951 Silver Springs Pkwy, Henderson, Nevada 89074 Whitney Ranch Recreation Center, 575 Galleria Dr. #C, Henderson, Nevada 89015 Hollywood Recreation Center, 1650 S. Hollywood Blvd., Las Vegas, Nevada 89142 Desert Breeze Community Center, 8275 Spring Mountain Rd., Las Vegas, Nevada 89117 Helen Mayer Community Center, 4525 New Forest Dr., Las Vegas, Nevada 89147 Whitney Community Center, 5712 Missouri Ave., Las Vegas, Nevada 89122 West Flamingo Senior Center, 6255 W. Flamingo Rd., Las Vegas, Nevada 89103 Whitney Senior Center, 5712 Missouri Ave., Las Vegas, Nevada 89122 Sunset Park Administration Building, 2601 E. Sunset Rd., Las Vegas, Nevada 89120 Henderson City Hall, 240 S. Water Street, Henderson, Nevada 89015 Las Vegas City Hall, 400 Stewart Ave., Las Vegas, Nevada 89101 North Las Vegas City Hall, 2200 Civic Center Dr., North Las Vegas, Nevada 89030 Clark County Government Center, 500 S. Grand Central Parkway, Las Vegas, Nevada 89155 Boulder City Hall, 401 California Avenue, Boulder City, Nevada 89005 Sunrise Manor Town Hall, 2240 Linn Lane, Las Vegas, Nevada McCarran International Airport, Clark County Department of Aviation, Planning Division, 5757 Wayne Newton Blvd., Las Vegas, Nevada 89119 Henderson Executive Airport, 1400 Executive Airport Drive, Suite B, Henderson, Nevada 89052 North Las Vegas Airport, 2730 Airport Dr., #101, North Las Vegas, Nevada 89032 Jean Sport Aviation Center, 23600 Las Vegas Blvd., Jean, Nevada 89019 The Draft Purpose and need Working Paper will be available for public comment for 30 days. Written comments on the Draft Purpose and Need Working Paper should be submitted to the address above under the heading “For Further Information Contact” and must be received no later than 5 p.m. Pacific Standard Time, Friday, February 29, 2008. Issued in Hawthorne, California on January 18, 2008. George Aiken, Acting Manager, Airports Division, Western-Pacific Region, AWP-600. [FR Doc. 08-328 Filed 1-24-08; 8:45 am]
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U.S. Code
- Registration requirements§ 823
- Definitions§ 802
- Denial, revocation, or suspension of registration§ 824
- Compensation for death§ 909
- Congressional findings and declaration of purpose; short title§ 901
- Determinations by Secretary of Labor§ 2273
- Federal agency responsibilities§ 3506
- Civil service; generally§ 3301
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Registration, responsibilities, and oversight of self-regulatory organizations§ 78s
- National securities exchanges§ 78f
- Definitions and application§ 78c
- Prohibited personnel practices§ 2302
- Minimum wage§ 206
- Age limits§ 631
- Nondiscrimination on account of age in Federal Government employment§ 633a
- Employment of individuals with disabilities§ 791
- Employment by Federal Government§ 2000e–16
- Investigation of prohibited personnel practices; corrective action§ 1214
- Expedited, coordinated environmental review process§ 47171
CFR
- Request for hearing or appearance; waiver; default.§ 1301.43
- Schedule III.§ 1308.13
- Purpose of issue of prescription.§ 1306.04
- General functions.§ 0.100
- Total disability and disability causation defined; criteria for determining total disability and total disability due to pneumoconiosis.§ 718.204
- Filing of petition; service.§ 44.10
- Refuse piles; general.§ 77.214
- Permissible electric face equipment; maintenance.§ 75.503
- Portable (trailing) cables and cords.§ 18.35
- Temporary splice of trailing cable.§ 75.603
- Installation of electric equipment and conductors; permissibility.§ 75.1002
- Filing of documents.§ 2.302
- Hearing requests, petitions to intervene, requirements for standing, and contentions.§ 2.309
- Formal requirements for documents; signatures; acceptance for filing.§ 2.304
- Selection of hearing procedures.§ 2.310
- Filing and amendment of national market system plans.§ 242.608
- Delegation of authority to Director of Division of Trading and Markets.§ 200.30-3
18 references not yet in our index
- 419 F.3d 477
- 412 F.3d 165
- Pub. L. 104-13
- 26 USC 2813
- 29 CFR 90.18(c)
- 30 CFR 44
- Pub. L. 92-463
- 10 CFR 51
- 5 CFR 6.6
- 3 CFR 1954
- 5 USC 78s(b)(1)
- 17 CFR 240.19
- 5 CFR 724.202
- Pub. L. 107-174
- 29 CFR 1614
- 5 CFR 724
- Pub. L. 108-176
- Pub. L. 106-362
Citation graph
cites case law
Notices
Notice of petitions for modification of existing mandatory safety standards
F. App'x419 F.3d 477
F. App'x412 F.3d 165
Pub. L.Pub. L. 104-13
Cites 55 · showing 12Cited by 0 across 0 sources