[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Notices]
[Pages 35303-35304]
[FR Doc No: 2021-14212]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2021-N-0008]

Circulatory System Devices Panel of the Medical Devices Advisory
Committee; Notice of Meeting

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) announces a forthcoming
public advisory committee meeting of the Circulatory System Devices
Panel of the Medical Devices Advisory Committee. The general function
of the committee is to provide advice and recommendations to the Agency
on FDA's regulatory issues. The meeting will be open to the public.

DATES: The meeting will take place virtually on August 3, 2021, from 9
a.m. Eastern Time to 6 p.m. Eastern Time.

ADDRESSES: Please note that due to the impact of the COVID-19 pandemic,
all meeting participants will be joining this advisory committee
meeting via an online teleconferencing platform. Answers to commonly
asked questions, including information regarding special accommodations
due to a disability, may be accessed at: https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm408555.htm.

FOR FURTHER INFORMATION CONTACT: Aden Asefa, Center for Devices and
Radiological Health, Food and Drug Administration, 10903 New Hampshire
Avenue, Bldg. 66, Rm. 5214, Silver Spring, MD 20993-0002,

[email protected]fda.hhs.gov,<PHONE_NUMBER>, or FDA Advisory Committee
Information Line, 1-800-741-8138<PHONE_NUMBER> in the Washington, DC
area). A notice in the Federal Register about last minute modifications
that impact a previously announced advisory committee meeting cannot
always be published quickly enough to provide timely notice. Therefore,
you should always check the Agency's website at https://www.fda.gov/AdvisoryCommittees/default.htm and scroll down to the appropriate
advisory committee meeting link, or call the advisory committee
information line to learn about possible modifications before the
meeting.

SUPPLEMENTARY INFORMATION:
    Agenda: The meeting presentations will be heard, viewed, captioned,
and recorded through an online teleconferencing platform. On August 3,
2021, the committee will discuss and make recommendations on
information regarding the premarket notification (510(k)) submission
for the TriGUARD 3 Cerebral Embolic Protection Device. The proposed
indication for use for the TriGUARD 3 Cerebral Embolic Protection
Device, is as follows:
    The TriGUARD 3 Cerebral Embolic Protection Device is designed to
minimize the risk of cerebral damage by deflecting embolic debris away
from the cerebral circulation during trans-catheter aortic valve
replacement.
    FDA intends to make background material available to the public no
later than 2 business days before the meeting. If FDA is unable to post
the background material on its website prior to the meeting, the
background material will be made publicly available on FDA's website at
the time of the advisory committee meeting. Background material and the
link to the online teleconference meeting room will be available at
https://www.fda.gov/AdvisoryCommittees/Calendar/default.htm. Scroll
down to the appropriate advisory committee meeting link. The meeting
will include slide presentations with audio components to allow the
presentation of materials in a manner that most closely resembles an
in-person advisory committee meeting.
    Procedure: Interested persons may present data, information, or
views, orally or in writing, on issues pending before the committee.
Written submissions may be made to the contact person on or before July
27, 2021. Oral presentations from the public will be scheduled between
approximately 1 p.m. Eastern Time and 2 p.m. Eastern Time. Those
individuals interested in making formal oral presentations should
notify the contact person (see FOR FURTHER INFORMATION CONTACT). The
notification should include a brief statement of the general nature of
the evidence or arguments they wish to present, the names and addresses
of proposed participants, and an indication of the approximate time
requested to make their presentation on or before July 21, 2021. Time
allotted for each presentation may be limited. If the number of
registrants requesting to speak is greater than can be reasonably
accommodated during the scheduled open public hearing session, FDA may
conduct a lottery to determine the speakers for the scheduled open
public hearing session. The contact person will notify interested
persons regarding their request to speak by July 20, 2021.
    For press inquiries, please contact the Office of Media Affairs at
exception occurred on : 2021-14212.htm
exception occurred on : 2021-14212.htm
fda.hhs.gov">[email protected]fda.hhs.gov or<PHONE_NUMBER>.
    FDA welcomes the attendance of the public at its advisory committee
meetings and will make every effort to accommodate persons with
disabilities. If you require accommodations due to a disability, please
exception occurred on : 2021-14212.htm
exception occurred on : 2021-14212.htm
contact AnnMarie Williams at fda.hhs.gov">[email protected]fda.hhs.gov or 301-796-
5966 at least 7 days in advance of the meeting.
    FDA is committed to the orderly conduct of its advisory committee
meetings. Please visit our website at https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm111462.htm for procedures
on public conduct during advisory committee meetings.
    Notice of this meeting is given under the Federal Advisory
Committee Act (5 U.S.C. app. 2).

    Dated: June 28, 2021.
Lauren K. Roth,
Acting Principal Associate Commissioner for Policy.
[FR Doc. 2021-14212 Filed 7-1-21; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 86, Number 16 (Wednesday, January 27, 2021)]
[Notices]
[Page 7287]
[FR Doc No: 2021-01774]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 14430-0093]

Apple Inc., Monroe Hydro, LLC; Notice of Transfer of Exemption

    1. On January 8, 2021, Apple Inc., exemptee for the Monroe Drop
Hydroelectric Project No. 14430, filed a letter notifying the
Commission that the project was transferred from Apple Inc. to Monroe
Hydro, LLC. The exemption from licensing was originally issued on
August 1, 2014.\1\ The project is located on the U.S. Bureau of
Reclamation's North Unit Irrigation District's Main Canal near the town
of Culver, Jefferson County, Oregon. The transfer of an exemption does
not require Commission approval.
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    \1\ Monroe Hydro, LLC, 148 FERC ] 62,098 (2014).
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    2. Monroe Hydro, LLC is now the exemptee of the Monroe Drop
Hydroelectric Project No. 14430. All correspondence must be forwarded
to: Mrs. Gia Schneider, Monroe Hydro, LLC, 2401 Monarch Street,
Alameda, CA 94501, Phone:<PHONE_NUMBER>.

    Dated: January 21, 2021.
Kimberly D. Bose,
Secretary.
[FR Doc. 2021-01774 Filed 1-26-21; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: July 14, 2010 (Volume 75, Number 134)]
[Proposed Rules]
[Page 40765-40769]
[DOCID:fr14jy10-19]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2010-0230]

Hours of Service; Limited Exemption for the Distribution of
Anhydrous Ammonia in Agricultural Operations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Proposed exemption; request for public comment.

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SUMMARY: FMCSA announces its proposal to grant a 2-year, limited
exemption from the Federal hours-of-service regulations for the
transportation of anhydrous ammonia from any distribution point to a
local farm retailer or to the ultimate consumer, and from a local farm
retailer to the ultimate consumer, as long as the transportation takes
place within a 100 air-mile radius of the retail or wholesale
distribution point. This exemption would extend the agricultural
operations exemption established by section 345 of the National Highway
System Designation Act of 1995, as amended, by the sections 4115 and
4130 of the Safe, Accountable, Flexible, Efficient Transportation
Equity: A Legacy for Users (SAFETEA-LU) to certain drivers and motor
carriers engaged in the distribution of anhydrous ammonia during the
planting and harvesting seasons, as defined by the States in which the
carriers and drivers operate. The Agency believes that the exemption
would likely achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption,
based on the terms and conditions imposed. This exemption would preempt
inconsistent State and local requirements applicable to interstate
commerce.

DATES: Comments must be received on or before August 13, 2010.

ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2010-0230 by any of the following
methods
     Web site: http://www.regulations.gov. Follow the
instructions for submitting comments on the Federal electronic docket
site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of
Transportation, Room W-12-140, 1200 New Jersey Avenue, SE., 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, DOT Building,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the ``Public
Participation'' heading below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the ``Privacy Act'' heading
below.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the ground floor, room W12-140, DOT Building, 1200 New Jersey Avenue,
SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through
Friday, except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
Privacy Act Statement for the Federal Docket Management System
published in the Federal Register on January 17, 2008 (73 FR 3316), or
you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
    Public Participation: The www.regulations.gov Web site is generally
available 24 hours each day, 365 days each year. You can obtain
electronic submission and retrieval help and guidelines under the
``help'' section of the http://www.regulations.gov Web site and also at
the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify
you that we received your comments, please include a self-addressed,
stamped envelope or postcard or print the acknowledgement page that
appears after submitting comments online.

DATES: Comments must be received on or before August 13, 2010.

FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Ave., SE., Washington, DC 20590.
    E-mail<EMAIL_ADDRESS>Phone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Legal Basis

    Section 4007(a) of the Transportation Equity Act for the 21st
Century (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998) provided
the Secretary of Transportation (the Secretary) the authority to grant
exemptions from any of the Federal Motor Carrier Safety Regulations
(FMCSRs) issued under chapter 313 of title 49 of the United States Code
or 49 U.S.C. 31136, to a person(s) seeking regulatory relief (49 U.S.C.
31136, 31315(b)). Prior to granting an exemption, the Secretary must
request public comment and make a determination that the exemption is
likely to achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be obtained in the absence of the
exemption. Exemptions may be granted for a period of up to two years
and may be renewed.
    The FMCSA Administrator has been delegated authority under 49 CFR
1.73(e)(1) and (g) to carry out the functions vested in the Secretary
by 49 U.S.C. chapter 313 and subchapters I and III of chapter 311,
relating, respectively, to the commercial driver's license program and
to commercial motor vehicle (CMV) programs and safety regulation.

Background

    On March 22, 2010, FMCSA published a notice in the Federal Register
announcing a limited 90-day waiver from the Federal hours-of-service
(HOS) regulations for the transportation of anhydrous ammonia from any
distribution point to a local farm retailer or to the ultimate
consumer, and from a local farm retailer to the ultimate consumer, as
long as the transportation takes place within a 100 air-mile radius of
the retail or wholesale distribution point (54 FR 13441). The waiver
extended the agricultural operations exemption established by section
345(a) of the National Highway System Designation Act of 1995 (NHS Act)
(Pub. L. 104-59, November 28, 1995, 109 Stat. 568, 613, 49 U.S.C. 31136
note, as amended by section 4130, redesignated by section 4115(a)(2) of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005, 119
Stat. 1144, 1726) and implemented by 49 CFR 395.1(k)) to certain
drivers and motor carriers engaged in the distribution of anhydrous
ammonia during the 2010 spring planting season.
    The FMCSA's notice indicated that the Agency had been contacted by
members of Congress concerning the Agency's interpretation of the
agricultural exemption provided in section 345(a) of the NHS.
Constituents engaged in the transportation of farm supplies--
particularly anhydrous ammonia--contacted the members to express
concerns that the Agency's interpretation of the agricultural exemption
results in the exclusion of certain distribution activities from the
regulatory relief intended by Congress.
    As amended by section 4130(a) of SAFETEA-LU, the agricultural
provision reads as follows:

    Transportation of agricultural commodities and farm supplies.--
Regulations prescribed by the Secretary under sections 31136 and

31502 regarding maximum driving and on-duty time for drivers used by
motor carriers shall not apply during planting and harvest periods,
as determined by each State, to drivers transporting agricultural
commodities or farm supplies for agricultural purposes in a State if
such transportation is limited to an area within a 100 air mile
radius from the source of the commodities or the distribution point
for the farm supplies (119 Stat. 1743).

    In its Notice, the Agency indicated that it has long understood
that limited farm storage capacity necessitates a ``just in time''
delivery system from retail distributors of certain farm supplies to
farms (or other locations where the farm supply product will be used)
during the busy planting and harvesting seasons. Longstanding FMCSA
guidance on its HOS regulations has consistently held that the
agricultural operations exemption applies to the transportation of farm
supplies from the local farm retailer to the ultimate consumer within a
100 air-mile radius. FMCSA's interpretation, however, has not extended
the HOS exemption to deliveries from wholesalers to either local farm
retailers or farms. (See Question 33, 49 CFR 395.1 on the Agency's Web
site: http://www.fmcsa.dot.gov.) Question 33 reads as follows:

    Question 33: How is ``point of origin'' defined for the purpose
of Sec.  395.1(k)?
    Guidance: The term ``point of origin'' is not used in the NHS
Designation Act; the statutory term is ``source of the
[agricultural] commodities.'' The exemption created by the Act
applies to two types of transportation. The first type is
transportation from the source of the agricultural commodity -where
the product is grown or raised--to a location within a 100 air-mile
radius of the source. The second type is transportation from a
retail distribution point of the farm supply to a location (farm or
other location where the farm supply product would be used) within a
100 air-mile radius of the retail distribution point.
    The legislative history of the agricultural exemption indicates
it was intended to only apply to retail store deliveries. Thus, it
is clear Congress intended to limit this exemption to retail
distributors of farm supplies.
    Second-stage movements, such as grain hauled from an elevator
(or sugar beets from a cold storage facility) to a processing plant,
are more likely to fall outside the exempt radius. Similarly, the
exemption does not apply to a wholesaler's transportation of an
agricultural chemical to a local cooperative because this is not a
retail delivery to an ultimate consumer, even if it is within the100
air-mile radius.

    The Agency believes that the exclusive emphasis of its regulatory
guidance on deliveries from local retailers to the ultimate farm
consumer may not reflect today's economic reality as it pertains to the
transportation of anhydrous ammonia during planting and harvesting
seasons. Like farms, local retailers have limited storage capacity and
therefore must constantly replenish certain supplies during the
planting and harvesting seasons. They are part of the ``just in time''
distribution system that extends from a wholesaler to the ultimate
consumer of the supplies.
    Because of storage and time constraints on the demand for the
transportation of anhydrous ammonia to support agricultural operations,
and the likelihood that such constraints will continue for some time,
FMCSA is proposing a two-year, limited exemption to provide regulatory
relief for the transportation of anhydrous ammonia during the planting
and harvesting seasons, as defined by the States in which the anhydrous
ammonia transporters operate. This action would provide limited
regulatory relief to facilitate planting activities that will
ultimately result in the production of agricultural commodities at
prices to which consumers have become accustomed, with no foreseeable
degradation of safety.
    The exemption would extend the agricultural operations exemption
from the Federal HOS regulations to motor carriers in the distribution
system, provided that: (1) The driver is delivering anhydrous ammonia;
(2) none of the transportation movements within the distribution chain
exceeds a 100 air-mile radius--whether from the retail or wholesale
distribution point; and (3) the driver is employed by a motor carrier
that has a ``satisfactory'' safety rating or is unrated; drivers for
motor carriers with ``conditional'' or ``unsatisfactory'' safety
ratings are prohibited from taking advantage of the exemption.
Therefore, the exemption would allow drivers for motor carriers with a
satisfactory safety rating or unrated motor carriers to use the HOS
exemption when delivering anhydrous ammonia from any distribution point
to a local farm retailer or to the ultimate consumer, and from a local
farm retailer to the ultimate consumer, as long as the transportation
takes place within a 100 air-mile radius of the retail or wholesale
distribution point. This exemption would take effect on the date of
publication of a final decision.

Safety Determination

    FMCSA is committed to ensuring high standards of motor carrier
safety. The Agency has considered the available data concerning the
safety performance of agricultural operations in general, and the
safety performance of anhydrous ammonia transporters during the 90-day,
limited waiver granted earlier this year.
    FMCSA compared safety performance data for agricultural carriers
currently operating under the statutory HOS exemption provided by the
NHS Act, as amended, with non-agricultural carriers that are not exempt
from HOS regulations to determine whether the exemption would be likely
to achieve a level of safety that is equivalent to, or greater than,
the level of safety that would be obtained in the absence of the
exemption. The data were collected as part of a study, ``Agricultural
Commodity and Utility Carriers Hours of Service Exemption Analysis,''
May 2010, FMCSA-RRA-10-448 A copy of the report has been placed in the
public docket identified at the beginning of this notice.
    The study was conducted in two phases. Phase 1 compares the safety
performance of agricultural and non-agricultural carriers for the
period 2005 through 2008, and also examines two additional industries,
livestock and utility carriers, whose operations were not exempt from
HOS regulations prior to the passage of SAFETEA-LU.\1\ The Phase 1
analysis used carrier registration, inspection and crash data from
FMCSA's Motor Carrier Management Information System (MCMIS). The study
used cargo classification information on the FMCSA Motor Carrier
Identification Report (Form MCS-150) in MCMIS to identify the carrier's
industry group (agricultural, livestock, or utility carrier), and used
MCS-150 information to identify carriers operating within and beyond a
100-air-mile radius. The operating radius information was used to
create two agricultural carrier subgroups: (1) Agricultural carriers
with 100 percent of drivers operating within a 100-air-mile radius; and
(2) agricultural carriers with 100 percent of drivers operating beyond
a 100-air-mile radius. The analysis used the first subgroup as
representative of agricultural carriers exempt from the HOS
requirements, and the second subgroup as representative of agricultural
carriers not exempt from the HOS requirements.
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    \1\ Section 4130(a).
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    For the Phase 2 analysis, inspection data of agricultural commodity
and utility carriers (which are also exempt from HOS regulations) was
collected during an FMCSA special study of a sample of States. These
data included only those inspections occurring during the States'
planting and harvesting seasons and indicated both the commodity being
transported and

whether the driver was operating within or beyond the 100-air-mile
radius exempt from HOS regulations. The Phase 2 analysis assessed the
safety performance of the HOS exempt agricultural commodity and utility
service carriers identified in the survey in comparison with non-HOS-
exempt carriers based on their out of service (OOS) violation rates and
crash rates.
    The Agency did not place as much of an emphasis on the OOS rates
because there were no HOS violation data to consider, given that the
agricultural carriers for which data were available were operating
under a statutory exemption from the HOS rule. Differences between the
OOS rates for other issues such as driver qualifications and vehicle
defects and deficiencies, while important in considering overall safety
management controls of the carriers, were not necessarily related to
the potential safety impact of the exemption.
    The Phase 1 analysis indicates that nationally, agricultural
carriers operating within a 100-air-mile radius had lower crash rates
per 100 power units than those operating beyond this radius, except for
in 2008, when there was no difference in the crash rates.
    To provide additional validation of the crash analysis, which uses
power unit data reported on the Form MCS-150, a separate analysis was
performed using data only for carriers domiciled in States
participating in the Performance and Registration Information Systems
Management (PRISM) program that enforces MCS-150 updating.\2\ PRISM
links State motor vehicle registration systems with carrier safety data
in order to identify unsafe commercial motor carriers. The PRISM State
carriers are required to update their MCS-150 annually. By contrast,
non-PRISM State carriers are required by FMCSA to update their MCS-150
biennially. As a result, the PRISM State data are considered more
current and reliable than non-PRISM State data where there are no
direct consequences for not updating the data. Data from PRISM States
that enforce MCS-150 updating show that agricultural carriers operating
within a 100-air-mile radius had more varied results, with crash rates
higher than carriers operating beyond a 100-air-mile radius in 2008,
lower in 2006 and 2007, and nearly the same in 2005.
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    \2\ Current PRISM States that enforce the MCS-150 updating
requirement are Alabama, Arizona, Arkansas, Connecticut, Georgia,
Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Nebraska, New
Hampshire, New Mexico, North Carolina, Ohio, South Carolina, South
Dakota, Tennessee, Utah, Vermont, Washington, and West Virginia.
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    The Phase 2 analysis indicates that in the four States
participating in the survey (Idaho, Kansas, Maryland, Michigan),
agricultural carriers that were subject to the HOS requirements had
higher crash rates per 100 power units than agricultural carriers
exempt from the HOS requirements.
    In addition to the study, the Agency considered information from
the Pipeline and Hazardous Materials Safety Administration's (PHMSA)
Hazardous Materials Incident Reporting Systems and from FMCSA field
offices concerning the safety performance of anhydrous ammonia
transporters during the limited 90-day waiver mentioned above. With
respect to information from PHMSA, the Agency received information
about five anhydrous ammonia incidents. Only one of the five involved a
crash and that crash involved a driver who had been on duty only two
hours after having two consecutive days off duty. Copies of all five
incident reports are included in the docket referenced at the beginning
of this notice.
    With regard to information from FMCSA's field offices, the Agency
did not receive any information about accidents, as defined in 49 CFR
390.5, involving motor carriers transporting anhydrous ammonia using
drivers operating under the limited 90-day waiver. The Agency
acknowledges that there is a gap between the date that a crash occurs
and the date the States would typically submit crash reports. However,
because FMCSA sought information through its field offices rather than
relying solely on routine crash reporting by State enforcement
agencies, it is unlikely that there have been any crashes resulting in
fatalities or injuries, involving a driver operating under the limited
90-day waiver. The Agency requests comments from all interested parties
that may have information concerning any crashes involving drivers
operating under the limited 90-day waiver.
    In the absence of any data or information to the contrary, the
Agency believes the real-world experience of anhydrous ammonia
transporters during the 90-day limited waiver suggests that the level
of safety under an exemption would be equivalent to, or greater than,
the level that would be achieved absent such exemption.

FMCSA Proposal

    In light of the information described above, FMCSA is proposing a
two-year limited exemption from the Federal HOS regulations for
interstate motor carriers engaged in the distribution of anhydrous
ammonia during the planting and harvesting seasons as defined by the
States. A review of the available crash data comparing exempt and non-
exempt motor carriers, and a review of crash data from anhydrous
ammonia transporters operating during the limited 90-day waiver provide
a reasonable basis to believe that a limited exemption would achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption, based on the terms and
conditions that would be imposed.

Proposed Terms and Conditions of the Exemption

    The FMCSA would provide a two-year, limited exemption from the
requirements of 49 CFR part 395 concerning the HOS requirements for
drivers of property-carrying vehicles engaged in the distribution of
anhydrous ammonia during the relevant planting and harvesting seasons.
This limited exemption would extend the agricultural operations
exemption from the Federal HOS regulations to drivers used by motor
carriers in the distribution system, provided that: (1) The driver is
delivering anhydrous ammonia; (2) none of the transportation movements
within the distribution chain exceeds a 100 air-mile radius--whether
from the retail or wholesale distribution point; and (3) the motor
carrier using the driver has a ``satisfactory'' safety rating or is
``unrated;'' drivers for motor carriers with ``conditional'' or
``unsatisfactory'' safety ratings are prohibited from taking advantage
of the exemption.
    The exemption would allow drivers for ``unrated'' motor carriers
and those with a satisfactory safety rating to use the HOS exemption
when the drivers are delivering anhydrous ammonia from any distribution
point to a local farm retailer or to the ultimate consumer, and from a
local farm retailer to the ultimate consumer, as long as the
transportation takes place within a 100 air-mile radius of the retail
or wholesale distribution point.

Safety Rating

    Motor carriers that have received compliance reviews and want their
drivers to be exempt from the HOS regulations are required to have a
``satisfactory'' rating. The compliance review is an on-site
examination of a motor carrier's operations, including records on
drivers' hours of service, maintenance and inspection, driver
qualification, commercial driver's license requirements, financial
responsibility, accidents, hazardous materials, and other safety and

transportation records to determine whether a motor carrier meets the
safety fitness standard. The assignment of a ``satisfactory'' rating
means the motor carrier has in place adequate safety management
controls to comply with the Federal safety regulations, and that the
safety management controls are appropriate for the size and type of
operation of the motor carrier.
    FMCSA would also allow drivers for ``unrated'' carriers to take
advantage of the exemption. Unrated motor carriers are those that have
not received a compliance review. FMCSA is allowing drivers for unrated
motor carriers to participate because it would be unfair to exclude
them simply because these carriers were not selected by the Agency for
a compliance review. The absence of a compliance review is in no way an
indication that the carrier has done anything wrong or has safety
problems.
    The Agency would not allow drivers for motor carriers with
conditional or unsatisfactory ratings to participate because both of
those ratings indicate that the carrier has safety management control
problems. There is little reason to believe that carriers rated either
unsatisfactory or conditional could be relied upon to comply with the
terms and conditions of the exemption.

Accident and Hazardous Materials Reporting Requirement

    Within 10 business days following an accident (as defined in 49 CFR
390.5) or any unintentional discharge of anhydrous ammonia that
requires the submission of the Department of Transportation Hazardous
Materials Incident Report (DOT Form F 5800.1) (see 49 CFR 171.16)
involving any of the CMVs operated by a motor carrier whose drivers are
using the exemption, irrespective of whether the CMV involved in the
accident or discharge was being operated by a driver using the
exemption, the motor carrier must submit the following information:
    (a) Date of the accident;
    (b) City or town in which the accident occurred, or city or town
closest to the scene of the accident;
    (c) Driver's name and license number;
    (d) Vehicle number and State license number;
    (e) Number of injuries;
    (f) Number of fatalities;
    (g) Whether hazardous materials, other than fuel spilled from the
fuel tanks of the motor vehicles involved in the accident, were
released;
    (h) The police-reported cause of the accident;
    (i) Whether the driver was cited for violating any traffic laws,
motor carrier safety regulations, or hazardous materials discharge; and
    (j) Whether the driver was operating under the exemption, and if
so, an estimate of the total driving time, on-duty time for the day of
the accident and each of the seven calendar days prior to the accident.

Duration of the Exemption

    The exemption would be effective upon publication in the Federal
Register and would be valid for up to two years unless revoked earlier
by FMCSA. The exemption may be renewed by the Agency; the Agency would
provide notice and an opportunity for public comment prior to renewing
the exemption. The exemption would preempt inconsistent State or local
requirements applicable to interstate commerce.

Safety Oversight of Carriers Operating Under the Exemption

    FMCSA expects that any drivers and their employing motor carrier
operating under the terms and conditions of the exemption will maintain
their safety record. Should any deterioration occur, however, FMCSA
would, consistent with the statutory requirements of TEA-21, take all
steps necessary to protect the public interest. Use of the exemption
would be voluntary, and FMCSA will immediately revoke the exemption for
any interstate driver or motor carrier for failure to comply with the
terms and conditions exemption.

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA
requests public comment on the proposed exemption from the HOS
requirements of 49 CFR part 395 for drivers and their employing motor
carriers transporting anhydrous ammonia. The Agency will consider all
comments received by close of business on August 13, 2010. Comments
will be available for examination in the docket at the location listed
under the ADDRESSES section of this notice. The Agency will consider to
the extent practicable comments received in the public docket after the
closing date of the comment period.

    Issued on: July 8, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-17138 Filed 7-13-10; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: December 5, 2008 (Volume 73, Number 235)]
[Notices]
[Page 74215-74220]
[DOCID:fr05de08-120]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28526; 812-12903]

Banc of America Funds Trust, et al.; Notice of Application

December 1, 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.

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APPLICANTS: Banc of America Funds Trust (``BAFT''), Columbia Funds
Series Trust (``CFST''), Columbia Funds Series Trust I (``CFST I''),
Columbia Funds Variable Insurance Trust I (``CFVT I''), Columbia Funds
Variable Insurance Trust (``CFVT''), Columbia Funds Master Investment
Trust, LLC (``CFMIT''), and Columbia Funds Institutional Trust
(``CFIT'') (individually, and together with any successor, a
``Company'' and collectively, the ``Companies''), each a registered
investment company, on behalf of the money market series thereof (the
``Money Market Funds'') and the other series thereof that are not Money
Market Funds (the ``Other Mutual Funds'') (the Money Market Funds
together with the Other Mutual Funds, the ``Funds''), Columbia
Management Advisors, LLC (together with any successor, ``CMA'' or the
``Advisor'') and Banc of America Securities LLC (together with any
successor, ``BAS'') (CMA and BAS, together with the Companies, the
``Applicants'').\1\
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    \1\ Any succession shall be solely by way of change in
organization, such as reincorporation or reorganization as a
partnership or similar entity. Any Company, Fund or Advisor that
currently intends to rely on the requested order is named as an
Applicant. Any other Company, Fund or Advisor 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 taxable money market
---------------------------------------------------------------------------
instruments including repurchase agreements with BAS.

Filing Dates: The application was filed on November 18, 2002 and
amended on May 8, 2008 and November 26, 2008.\2\
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    \2\ Applicants note that after the May 8, 2008 reactivating
amendment was filed, Bank of America Corporation (``BAC''), which
indirectly controls both CMA and BAS, entered into an Agreement and
Plan of Merger dated September 15, 2008 (``Plan of Merger'') with
Merrill Lynch & Co., Inc., parent to Merrill Lynch, Pierce, Fenner &
Smith, Incorporated, a large broker-dealer that is an important
market participant in certain taxable money market instruments.
Assuming the Plan of Merger is consummated, the Applicants do not
expect that the market share of BAS will decrease, and do expect
that the number of Funds (and the amount of Fund assets) invested in
taxable money market instruments will increase. The Applicants will
cease relying on the requested relief as to a particular type of
instrument described herein if the consummation of the Plan of
Merger materially reduces BAS' market share with respect to such
type of instrument below the levels described in this application.

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 December 24, 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
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notification of a hearing by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090. Applicants: BAFT, CFST, CFST I,
CFVT I, CFVT, CFMIT, CFIT and CMA, One Financial Center, 11th Floor,
Boston, Massachusetts 02111; BAS, Bank of America Tower, One Bryant
Park, 18th Floor, New York, New York 10036.

FOR FURTHER INFORMATION CONTACT: Barbara T. Heussler, Senior Counsel,
(202) 551-6990 or Janet M. Grossnickle, Assistant Director, (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 Room, 100 F Street, NE., Washington,
DC 20549-1520 (tel.<PHONE_NUMBER>).

Applicants' Representations

    1. Each Company is an open-end investment company registered under
the Act. CFST I, CFVT and CFIT are organized as Massachusetts business
trusts. BAFT, CFST and CFVT I are organized as Delaware statutory
trusts. CFMIT is organized as a Delaware limited liability company.
Each Money Market Fund is subject to rule 2a-7 under the Act (``Rule
2a-7'') and each Fund is permitted to invest in taxable money market
instruments, including repurchase agreements.
    2. CMA serves as the primary investment adviser for the Funds and
is an indirect wholly owned subsidiary of BAC, a Delaware corporation
that provides a diversified range of banking and certain nonbanking
financial services and products both domestically and internationally.
CMA is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (``Advisers Act''). The term
``Advisor'' also includes any other existing or future investment
adviser registered under the Advisers Act which acts as investment
adviser or sub-adviser to a Fund and which controls, is controlled by,
or is under common control (as defined in section 2(a)(9) of the Act)
with BAS or CMA.
    3. BAS, a wholly owned subsidiary of BAC, is a broker-dealer
registered under the Securities Exchange Act of 1934, as amended (the
``1934 Act'') and a full service investment banking firm.\3\ BAS, a
primary dealer in U.S. Government securities, has grown into one of the
largest dealers in commercial paper, repurchase agreements and other
taxable money market instruments in the United States. The Applicants
believe that BAS' extensive dealing in taxable money market instruments
and repurchase agreements makes it a very significant source for money
market investment opportunities as well as related market information
and expertise.
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    \3\ BAS is also registered as an investment adviser under the
Advisers Act. For purposes of this application, the relief sought
applies to BAS as broker-dealer only. The requested relief will not
extend to any investment company advised or sub-advised by BAS.
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    4. Applicants state that BAS and the Advisor are functionally
independent of each other and operate as separate entities under the
umbrella of BAC, the parent holding company. While BAS and the Advisor
are under common control, each company has its own separate directors,
has separate officers and employees, is separately capitalized and
maintains its own books and records, except for two dual officers as
more fully discussed in the application. The Advisor and BAS operate on
different sides of appropriate information barriers with respect to
portfolio management activities and investment banking activities, and
maintain physically separate offices.
    5. Investment management decisions for the Funds are determined
solely by the Advisor and other investment advisers (as defined in
section 2(a)(20) of the Act) that serve as subadvisers to the Funds,
that are unaffiliated with the Advisor, and that do not include BAS.
The portfolio managers and other employees that are responsible for
portfolio management for registered investment companies function
exclusively on behalf of the Advisor (or its affiliates), and not BAS.
The personnel assigned to the Advisor's investment advisory operations
that are also involved with the business of other affiliates have
absolutely no function or responsibility with respect BAS. The
compensation of persons employed by the Advisor will not depend on the
volume or nature of trades with effected by the Advisor for the Funds
with BAS under the requested exemption, except to the limited extent
that such trades may minimally affect the profits and losses of BAC and
its subsidiaries as a whole or to the extent that such trades affect
the investment performance of a Fund.
    6. The portfolio securities in which each of the Money Market
Funds, consistent with their stated investment objectives and
practices, may invest consist of high-credit quality short-term taxable
money market instruments, including repurchase agreements. The Other
Mutual Funds also are authorized to invest in taxable money market
instruments, in addition to the other instruments permitted by their
respective investment policies and strategies. Practically all trading
in money market instruments takes place in over-the-counter markets
consisting of groups of dealer firms that are primarily major
securities firms or large banks. Money market instruments are generally
traded in round lots of $1,000,000 on a net basis and do not normally
involve either brokerage commissions or transfer taxes. The cost of
portfolio transactions to the Funds consists primarily of dealer or
underwriter spreads. Spreads vary among money market instruments but
dealer spreads generally do not exceed 1-5 basis points (.01% to .05%).
It has been the experience of the Funds that spreads have narrowed and
there is not a great deal of variation in the spreads charged by the
various dealers, except during turbulent market conditions.
    7. The money market relies upon elaborate communications networks
among dealer firms, principal issuers of money market instruments and
principal institutional buyers of such instruments. Because the money
market is a dealer market rather than an auction market, there is not a
single obtainable price for a given instrument that generally prevails
at any given time. A dealer acts either as ``agent'' on behalf of
issuer clients or as ``principal'' for its own account. In either
capacity, a dealer posts rates throughout its internal, private
distribution networks that are intended to reflect ``market clearing
price levels,'' as determined by the dealer. Only customers of the
dealer seeking to purchase money market instruments have access to
these postings.
    8. Because of the variety of types of money market instruments, the
money market is very segmented. The market for the different types of
instruments will vary in terms of price, volatility, liquidity and
availability. Although the rates for the different types of instruments
tend to fluctuate closely together, there are significant differences
in yield among the various types of instruments, and even within the
particular type, depending upon the maturity date and the credit
quality of the issuer. Moreover, from time to time segmenting exists
within money market instruments with the same maturity date and rating.
The segmenting is based on

such factors as whether the issuer is an industrial or financial
company, whether the issuer is domestic or foreign and whether the
instruments are asset-backed or unsecured. Because dealers tend to
specialize in certain types of money market instruments, the particular
needs of a potential buyer or seller in terms of type of instrument,
maturity or credit quality may limit the number of dealers who can
provide the most beneficial terms available. Hence, with respect to any
given type of instrument, there may be only a few dealers that have
such instruments in inventory and can be in a position to quote a
competitive price.
    9. BAS has become 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 more fully discussed in the
application. As of September 30, 2008, BAS was the third largest dealer
in terms of the number of U.S. commercial paper programs and its market
share had been increasing. Applicants state that BAS plays a relatively
significant role in the repurchase agreement market and that BAS'
market position is among the ten leading dealers. As of September 30,
2008, BAS' average daily repurchase agreement transaction volume was
approximately $150 billion. As of October 20, 2008, BAS was one of
seventeen primary dealers and has been active in this role since the
1980s. BAS' primary dealer desk actively participates in the U.S.
Treasury Bill market (which consists of short-term government
obligations that are sold on a weekly basis through public auctions).
Average daily Treasury Bill auction volume for BAS in the nine-month
period ended September 30, 2008 was approximately $5.2 billion, which
is roughly a 12.5% market share. Since 2000, BAS has experienced growth
in activity involving instruments issued by U.S. Government agencies.
BAS ranked eleventh in the nine-month period ended September 30, 2008
in underwriting activity involving agency instruments with maturities
of eighteen months with a market share of approximately 4.8% in 2007.
In the Agency Discount Note market, consisting of notes maturing in one
year or less, BAS is a major dealer in all of the top-tier discount
note programs. BAS is also one of the leading participants in the
market for medium-term notes (``MTNs''). MTNs are offered continuously
in public or private offerings, with maturities between nine months and
thirty years. 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 and bankers'
acceptances cannot have an initial maturity of more than six months.
For the nine-month period ended September 30, 2008, BAS ranked second
as a placement agent /dealer for MTN programs, and for the full year
ended 2007, BAS ranked third for MTN programs.
    10. Applicants state that over the past seven years, there have
been more than 50 mergers and acquisitions involving major banks. From
1990 to June 30, 2008, the number of FDIC-insured commercial banks has
declined by 42% due to consolidation. During this period, there has
also been a significant decline in the number of primary dealers. As a
result, there is a substantially smaller number of major dealers who
are active in the money market than was the case only a few years ago.
Applicants state that the decline in the number of participants in the
money market has not affected the overall price and the availability of
money market instruments, but the availability of such instruments to
the Funds has declined as BAS' market share has increased. The
reduction in the number of participants makes it even more critical for
investors to have access to as many dealers that are actively engaged
in the market as possible. The availability of BAS to the Funds is
important not only because the number of industry participants has
declined but because high-credit quality participants such as BAS are
becoming more important in the money market. Applicants state that
because the Funds currently do not have access to BAS, which is one of
the more significant remaining dealers, they are at a distinct
disadvantage compared to other institutional investors.
    11. Subject to the general supervision of each Company or Fund's
respective Board of Trustees (each a ``Board,'' and together, the
``Boards''), the Advisor is responsible for portfolio decisions and
placing execution of the Money Market Funds' portfolio transactions.
The Advisor, on behalf of the Funds, has no obligation to deal with any
dealer or group of dealers in the execution of their portfolio
transactions. When placing orders, an Advisor 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 firm's general
execution and operational facilities. For repurchase agreement
transactions in particular, the Advisor places great emphasis on the
creditworthiness of the counterparty.

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 BAS, acting as principal, to sell to
or purchase from the Funds taxable money market instruments, and to
engage in repurchase agreement transactions with the 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 such a person, acting as principal, from
selling to or purchasing from such registered company, or any company
controlled by such registered company, any security or other property.
Because BAS and the Advisor are under common control of BAC, BAS could
be deemed to be an affiliated person of the Advisor within the meaning
of section 2(a)(3)(C) of the Act. Accordingly, BAS could be deemed to
be an affiliated person of an affiliated person of the Funds, because
the Advisor, as the investment adviser of the Funds, could be deemed to
be an affiliated person of the Funds under section 2(a)(3)(E) of the
Act. Thus, section 17(a) would prohibit the Funds from selling or
purchasing taxable money market instruments to or from BAS to the
extent BAS is deemed an affiliated person of an affiliated person of
the Funds.
    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) of the Act 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 contend that the rationale behind the proposed order
is based upon the reduction in the number of participants in the money
market, the growing and significant role played in the money market by
BAS and the growing investment requirements of the Funds. In particular
Applicants note the following:
    (a) With over $162 billion invested in money market instruments
(including repurchase agreements) as of September 30, 2008, the Funds
are major buyers and sellers in the money market with a strong need for
unrestricted access to large quantities of high credit quality taxable
money market instruments. The Applicants believe that continued denial
of access to such a major dealer as BAS in these markets will hinder
the Funds' ability to manage their respective portfolios in the most
effective manner.
    (b) The policy of the Money Market Funds of investing in
instruments with short maturities and repurchase agreements, combined
with the active portfolio management techniques employed by the
Advisor, results in the need to make ongoing purchases and sales of
taxable money market instruments. This dynamic makes the need to obtain
suitable portfolio instruments and repurchase agreements and the most
beneficial terms available from the broadest possible range of major
participants in the market especially compelling.
    (c) BAS is such a major participant in the money market that being
unable to deal directly with it may, upon occasion, deprive the Funds
of obtaining the most beneficial terms available.
    (d) The money market, including the market for repurchase
agreements, is highly competitive and precluding a competitor as
important as BAS from engaging in principal transactions with the Funds
could indirectly deprive the Funds of obtaining the most beneficial
terms available even when the Funds trade with other dealers.
    5. Applicants believe that the requested order will provide the
Funds with a broader and more complete access to the money market,
which is necessary to carry out the policies and objectives of each of
the Funds in obtaining the most beneficial terms in all portfolio
transactions. In addition, the Applicants respectfully submit that the
requested relief will provide the Funds with important new information
sources in the money market, to the direct benefit of shareholders in
the Funds. Applicants believe that the transactions contemplated by
this application are identical to those in which they are currently
engaged except for the proposed participation of BAS, 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 procedures set forth with respect
to transactions with BAS are structured in such a way as to insure 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 the order granting the requested relief will
be subject to the following conditions:
    1. Transactions Subject to the Exemption--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. The principal transactions that may be
conducted pursuant to the exemption shall be limited to transactions in
Eligible Securities.\4\ To the extent a Fund is subject to Rule 2a-7,
such Eligible Securities must meet the portfolio maturity and credit
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:
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    \4\ Italicized terms are defined as set forth in paragraph (a)
of Rule 2a-7, unless otherwise indicated.
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    (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 instruments
that, when acquired by the Fund (either initially or upon any
subsequent rollover) were 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 exemption shall not apply to any instrument, other than a
repurchase agreement, issued by BAC or any affiliated person thereof or
to any instrument subject to a Demand Feature or Guarantee issued by
BAC or any affiliated person thereof.
    2. Repurchase Agreement Requirements--The Funds may engage in
repurchase agreements with BAS only if BAS has: (a) Net capital, as
defined in rule 15c3-1 under the 1934 Act, of at least $100 million and
(b) 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 instrument subject to the
repurchase agreement. BAS shall furnish the Advisor with financial
statements for its most recent fiscal year and the most recent semi-
annual financial statements made available to their customers. The
Advisor shall determine that BAS complies with the above requirements
and with the repurchase agreement guidelines adopted by the Boards.
Each repurchase agreement will be Collateralized Fully.
    3. Volume Limitations on Transactions--Transactions other than
repurchase agreements conducted pursuant to the exemption shall be
limited to no more than 25% of (a) the direct or indirect purchases or
sales, as the case may be, by each Fund of Eligible Securities other
than repurchase agreements; and (b) the purchases or sales, as the case
may be, by BAS of Eligible Securities other than repurchase agreements.
Transactions comprising 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 BAS. These calculations
shall be measured on an annual basis (the fiscal year of each Fund and
of BAS) and shall be computed with respect to the dollar volume
thereof.
    4. Information Required to Document Compliance with Price Test--
Before any transaction may be conducted pursuant to the exemption, the
relevant Fund or the Advisor must obtain such information as it deems
necessary to determine that the price test (as defined in condition 5
below) applicable to such transaction has been satisfied. In the case
of purchase or sale transactions, the Funds or the Advisor must make
and document a good faith determination with respect to compliance with
the price test based upon current price information obtained through
the contemporaneous solicitation of bona fide offers in connection with
the type of instrument involved (comparable security falling within the
same category of instrument, credit rating, maturity

and segment, if any, but not necessarily the identical instrument or
issuer). With respect to prospective purchases of instruments, these
dealers must be those who have, in their inventories, or who otherwise
have access to taxable money market instruments of the categories and
the types desired and who are in a position to quote favorable prices
with respect thereto. With respect to the prospective disposition of
instruments, these dealers must be those who, in the experience of the
Funds and the Advisor, are in a position to quote favorable prices.
Before any repurchase agreements are entered into pursuant to the
exemption, the Funds or the Advisor 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.
    5. Price Test--In the case of purchase and sale transactions, a
determination will be required in each instance, based upon the
information available to the Funds and the Advisor, that the price
available from BAS is at least as favorable as that available from
other sources. In the case of ``swaps'' involving trades of one
instrument 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 transactions involving repurchase
agreements, a determination will be required in each instance, based on
the information available to the Funds and the Advisor, that the income
to be earned from the repurchase agreement is at least equal to that
available from other sources in connection with comparable repurchase
agreements.
    6. Permissible Dealer Spread--BAS' spreads in regard to any
transaction with the Funds will be no greater than its customary dealer
spreads, which will in turn be consistent with the average or standard
spread charged by dealers in taxable money market instruments for the
type of instrument and the size of transaction involved.
    7. Parties Must Be Factually Independent--The Advisor on the one
hand, and BAS, on the other, will operate on different sides of
appropriate walls of separation with respect to the Funds and Eligible
Securities. The walls of separation will include all of the following
characteristics and such others as may from time to time be considered
reasonable by BAS and the Advisor to facilitate the factual
independence of the Advisor from BAS.
    (a) The Advisor will maintain offices physically separate from
those of BAS.
    (b) The compensation of persons assigned to the Advisor (i.e.,
executive, administrative or investment personnel) will not depend on
the volume or nature of trades effected by the Advisor for the Funds
with BAS under this exemption, except to the extent that such trades
may affect the profits and losses of BAC and its subsidiaries as a
whole or to the extent that such trades affect the investment
performance of a Fund.
    (c) BAS will not share any of its respective profits or losses on
such transactions with the Advisor, except to the extent that such
profits and losses affect the general firmwide compensation of BAC and
its subsidiaries as a whole.
    (d) Personnel assigned to the Advisor's investment advisory
operations on behalf of the Funds will be exclusively devoted to the
investment advisory business and affairs of the Advisor and the
businesses of its affiliates (other than BAS), and have lines of
reporting solely within the Advisor or its affiliates (other than BAS).
The personnel assigned to the Advisor's investment advisory operations
that are also involved with the business of other affiliates have
absolutely no function or responsibility with respect to BAS.
    (e) Personnel assigned to BAS will not participate in the decision-
making process for or otherwise seek to influence the Advisor 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. The Advisor, on the one hand, and
BAS, on the other, may nonetheless maintain affiliations other than
with respect to the Funds, and in addition with respect to the Funds as
follows:
    (i) Advisor personnel may rely on research, including credit
analysis and reports prepared internally by various subsidiaries and
divisions of BAS.
    (ii) Certain senior executives of BAC with responsibility for
overseeing operations of various divisions, subsidiaries and affiliates
of BAC are not precluded from exercising those functions over the
Advisor because they oversee BAS 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 the Advisor of orders in respect
of Eligible Securities with BAS.
    8. Record-Keeping Requirements--The Funds and the Advisor 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. In this regard:
    (a) Each Fund shall maintain an itemized daily record of all
purchases and sales of instruments pursuant to the exemption, showing
for each transaction: The name and quantity of instruments; the unit
purchase or sale price; the time and date of the transaction; and
whether such instrument was a First Tier Security or a Second Tier
Security. Such records also shall, for each transaction, document two
quotations received from other dealers for comparable instruments
(except that, in the case of repurchase agreements and consistent with
condition 4, if quotations are unavailable from two such dealers only
one other competitive quotation is required), including: The names of
the dealers; the names of the instruments; the prices quoted; the times
and dates the quotations were received; and whether such instruments
were First Tier Securities or Second Tier Securities.
    (b) Each Fund shall maintain a ledger or other record showing, on a
daily basis, the percentage of the Fund's Total Assets (or, in the case
of a Fund that is not subject to Rule 2a-7, the percentage of the total
of its cash, cash items and Eligible Securities) represented by Second
Tier Securities acquired from BAS.
    (c) Each Fund shall maintain records sufficient to verify
compliance with the volume limitations contained in condition 3, above.
BAS will provide the Funds with all records and information necessary
to implement this requirement.
    (d) Each Fund shall maintain records sufficient to verify
compliance with the requirements related to repurchase agreements
contained in condition 2, above.
    The records required by this condition 8 will be maintained and
preserved in the same manner as records required under rule 31a-1(b)(1)
of the Act.
    9. Guidelines--BAS and the Advisor, with the assistance of their
compliance departments, will prepare and, as necessary, update
guidelines for personnel of the BAS or the Advisor, as the case may be,
to make certain that transactions conducted pursuant to the exemption
comply with the conditions set forth therein, and that the parties
generally maintain arm's-length relationships. In training personnel of
BAS, particular emphasis will be given to the fact that the Funds are
to receive rates as favorable as other institutional

purchasers buying the same quantities. The compliance departments of
BAS and the Advisor will periodically monitor the activities of BAS and
the Advisor to make certain that the conditions set forth in the
exemption are adhered to.
    10. Audit Committee Review--The audit committee, compliance
committee, or another committee which, in each case, consists of
members of the Board who are not interested persons as defined in
section 2(a)(19) of the Act (``Independent Members''), will approve,
periodically review and update as necessary, guidelines for the Advisor
and BAS reasonably designed to ensure that transactions conducted
pursuant to the exemption comply with the conditions set forth herein
and that the procedures described herein are followed in all respects.
The respective audit committees will periodically monitor the
activities of the Funds, the Advisor and BAS in this regard to ensure
that these matters are being accomplished.
    11. Scope of Exemption--Applicants expressly acknowledge that any
order issued on the application would grant relief from section 17(a)
of the Act only, and would not grant relief from any other section of,
or rule under, the Act including, without limitation, Rule 2a-7.
    12. Board Review--The Boards, including a majority of the
Independent Members, 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 is given will reflect in detail the reasons for the Board's
determinations. The Boards will review no less frequently than annually
a 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 instrument conducted pursuant to the exemption to the
market presence of BAS in the market for that type of instrument; and
(b) a determination that the Funds are maintaining appropriate trading
relationships with other sources for each type of instrument to ensure
that there are appropriate sources for the quotations required by
condition 4 above. The minutes of the meetings of the Boards at which
this determination is made will reflect in detail the reasons for the
Boards' determinations.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-28795 Filed 12-4-08; 8:45 am]

BILLING CODE 8011-01-P