[Federal Register Volume 81, Number 113 (Monday, June 13, 2016)]
[Rules and Regulations]
[Pages 38101-38104]
[FR Doc No: 2016-13805]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2015-0350; FRL-9946-48]

D-glucurono-6-deoxy-L-manno-D-glucan, Acetate, Calcium Magnesium
Potassium Sodium Salt (Diutan Gum); Exemption From the Requirement of a
Tolerance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes an exemption from the requirement
of a tolerance for residues of D-glucurono-6-deoxy-L-manno-D-glucan,
acetate, calcium magnesium potassium sodium salt (diutan gum) Chemical
Abstract Service Registration Number ((CAS Reg. No.) 595585-15-2) when
used as an inert ingredient stabilizer/suspension agent applied to
crops pre- and post-harvest and to food contact surfaces. Keller and
Heckman on behalf of CP Kelco U.S., Inc submitted a petition to EPA
under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting
establishment of an exemption from the requirement of a tolerance. This
regulation eliminates the need to establish a maximum permissible level
for residues of D-glucurono-6-deoxy-L-manno-D-glucan, acetate, calcium
magnesium potassium sodium salt (diutan gum).

DATES: This regulation is effective June 13, 2016. Objections and
requests for hearings must be received on or before August 12, 2016,
and must be filed in accordance with the instructions provided in 40
CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2015-0350, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory
Public Docket (OPP Docket) in the Environmental Protection Agency
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334,
1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the OPP
Docket is<PHONE_NUMBER>. Please review the visitor instructions and
additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Susan Lewis, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone
number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR
part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this
document electronically, please go to http://www.epa.gov/ocspp and
select ``Test Methods and Guidelines.''

C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2015-0350 in the subject line on the first
page of your submission. All objections and requests for a hearing must
be in writing, and must be received by the Hearing Clerk on or before
August 12, 2016. Addresses for mail and hand delivery of objections and
hearing requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing (excluding any Confidential Business Information (CBI)) for
inclusion in the public docket. Information not marked confidential
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without
prior notice. Submit the non-CBI copy of your objection or hearing
request, identified by docket ID number EPA-HQ-OPP-2015-0350, by one of
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be CBI or other
information whose disclosure is restricted by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC
20460-0001.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Petition for Exemption

    In the Federal Register of Monday, April 25, 2016 (81 FR 24046)
(FRL-9944-86), EPA issued a document pursuant to FFDCA section 408, 21
U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-
10815) by Keller and Heckman LLP (1001 G Street NW., Suite 500 West,
Washington, DC 20001), on behalf of CP Kelco U.S., Inc (3100 Cumberland
Blvd., Suite 600, Atlanta, GA 30339). The petition requested that 40
CFR 180.910 and 40 CFR 180.940 be amended by establishing an exemption
from the requirement of a tolerance for residues of D-glucurono-6-
deoxy-L-manno-D-glucan, acetate, calcium magnesium potassium sodium
salt (diutan gum) (CAS Reg. No. 595585-15-2) when used as an inert
ingredient stabilizer/suspension agent in pesticide formulations
applied to crops pre- and post-harvest and to food contact surfaces.
That document referenced a summary of the petition prepared by Keller
and Heckman on behalf of CP Kelco U.S., Inc., the petitioner, which is
available in the docket, http://www.regulations.gov. There were no

comments of substance received in response to the notice of filing.

III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active
ingredients as defined in 40 CFR 153.125 and include, but are not
limited to, the following types of ingredients (except when they have a
pesticidal efficacy of their own): Solvents such as alcohols and
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' is not intended to imply
nontoxicity; the ingredient may or may not be chemically active.
Generally, EPA has exempted inert ingredients from the requirement of a
tolerance based on the low toxicity of the individual inert
ingredients.

IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an
exemption from the requirement for a tolerance (the legal limit for a
pesticide chemical residue in or on a food) only if EPA determines that
the tolerance is ``safe.'' Section 408(b)(2)(A)(ii) of FFDCA defines
``safe'' to mean that ``there is a reasonable certainty that no harm
will result from aggregate exposure to the pesticide chemical residue,
including all anticipated dietary exposures and all other exposures for
which there is reliable information.'' This includes exposure through
drinking water and in residential settings, but does not include
occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to
give special consideration to exposure of infants and children to the
pesticide chemical residue in establishing a tolerance and to ``ensure
that there is a reasonable certainty that no harm will result to
infants and children from aggregate exposure to the pesticide chemical
residue. . . .''
    EPA establishes exemptions from the requirement of a tolerance only
in those cases where it can be clearly demonstrated that the risks from
aggregate exposure to pesticide chemical residues under reasonably
foreseeable circumstances will pose no appreciable risks to human
health. In order to determine the risks from aggregate exposure to
pesticide inert ingredients, the Agency considers the toxicity of the
inert in conjunction with possible exposure to residues of the inert
ingredient through food, drinking water, and through other exposures
that occur as a result of pesticide use in residential settings. If EPA
is able to determine that a finite tolerance is not necessary to ensure
that there is a reasonable certainty that no harm will result from
aggregate exposure to the inert ingredient, an exemption from the
requirement of a tolerance may be established.
    Consistent with FFDCA section 408(c)(2)(A), and the factors
specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available
scientific data and other relevant information in support of this
action. EPA has sufficient data to assess the hazards of and to make a
determination on aggregate exposure for D-glucurono-6-deoxy-L-manno-D-
glucan, acetate, calcium magnesium potassium sodium salt (diutan gum)
including exposure resulting from the exemption established by this
action. EPA's assessment of exposures and risks associated with D-
glucurono-6-deoxy-L-manno-D-glucan, acetate, calcium magnesium
potassium sodium salt (diutan gum) follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children. Specific information on the studies received and the nature
of the adverse effects caused by D-glucurono-6-deoxy-L-manno-D-glucan,
acetate, calcium magnesium potassium sodium salt (diutan gum) as well
as the no-observed-adverse-effect-level (NOAEL) and the lowest-
observed-adverse-effect-level (LOAEL) from the toxicity studies are
discussed in this unit.
    D-glucurono-6-deoxy-L-manno-D-glucan, acetate, calcium magnesium
potassium sodium salt (diutan gum) exhibits low levels of acute
toxicity. The oral lethal dose (LD)50 in the rat is greater
than 5 grams/kilograms (g/kg) (5,000 milligrams/kilograms (mg/kg)). The
inhalation lethal concentration (LC)50 in the rat is > 0.316
milligram/Liter (mg/L) (~81.9 mg/kg). It is minimally irritating to the
rabbit eye. It is not an irritant to the rabbit skin and it was not a
skin sensitizer in Dunkin-Hartley guinea pigs.
    In a 28-day repeat dose oral toxicity (OECD Test Guideline 407)
study there were no treatment-related adverse toxicological effects at
doses up to 1,000 mg/kg/day. The NOAEL is 1,000 mg/kg/day.
    The reverse gene mutation assay with Salmonella typhimurium and
Escherichia coli and a chromosome aberration test with human
lymphocytes show that the compound is neither mutagenic nor
clastogenic, respectively.
    In a metabolism study in male and female rats the compound was
absorbed, metabolized and excreted rapidly. The major route of
excretion was the feces. There was no bioaccumulation.
    No toxicological point of departure (toxicological endpoint) was
identified due to the low levels of toxicity exhibited and due to the
very large molecular weight and lack of systemic absorption.

B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA
identifies toxicological points of departure (POD) and levels of
concern to use in evaluating the risk posed by human exposure to the
pesticide. For hazards that have a threshold below which there is no
appreciable risk, the toxicological POD is used as the basis for
derivation of reference values for risk assessment. PODs are developed
based on a careful analysis of the doses in each toxicological study to
determine the dose at which no adverse effects are observed (the NOAEL)
and the lowest dose at which adverse effects of concern are identified
(the LOAEL). Uncertainty/safety factors are used in conjunction with
the POD to calculate a safe exposure level--generally referred to as a
population-adjusted dose (PAD) or a reference dose (RfD)--and a safe
margin of exposure (MOE). For non-threshold risks, the Agency assumes
that any amount of exposure will lead to some degree of risk. Thus, the
Agency estimates risk in terms of the probability of an occurrence of
the adverse effect expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.
    No toxicological point of departure (toxicological endpoint) was
identified due to the low levels of acute and subchronic toxicity
exhibited and due to the very large molecular weight and lack of
systemic absorption.

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to D-glucurono-6-deoxy-L-

manno-D-glucan, acetate, calcium magnesium potassium sodium salt
(diutan gum), EPA considered exposure under the proposed exemption from
the requirement of a tolerance. EPA assessed dietary exposures from D-
glucurono-6-deoxy-L-manno-D-glucan, acetate, calcium magnesium
potassium sodium salt (diutan gum) in food as follows:
    Dietary exposure can occur from eating foods containing residues of
D-glucurono-6-deoxy-L-manno-D-glucan, acetate, calcium magnesium
potassium sodium salt (diutan gum). Because no hazard endpoint of
concern was identified for acute and chronic dietary assessment (food
and drinking water), a quantitative dietary exposure risk assessment
was not conducted.
    2. Dietary exposure from drinking water. Residues of D-glucurono-6-
deoxy-L-manno-D-glucan, acetate, calcium magnesium potassium sodium
salt (diutan gum) might be found in drinking water. However, since no
toxicological endpoint of concern was identified for dietary risk
assessment (food and drinking water), a quantitative dietary was not
conducted.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., textiles (clothing and diapers), carpets, swimming
pools, and hard surface disinfection on walls, floors, tables).
    D-glucurono-6-deoxy-L-manno-D-glucan, acetate, calcium magnesium
potassium sodium salt (diutan gum) could be used in products that could
result in short- or intermediate-term residential exposures. However,
based on the lack of toxicity, a quantitative exposure assessment from
residential exposures was not performed.
    4. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
    EPA has not found D-glucurono-6-deoxy-L-manno-D-glucan, acetate,
calcium magnesium potassium sodium salt (diutan gum) to share a common
mechanism of toxicity with any other substances, and D-glucurono-6-
deoxy-L-manno-D-glucan, acetate, calcium magnesium potassium sodium
salt (diutan gum) does not appear to produce a toxic metabolite
produced by other substances. For the purposes of this tolerance
action, therefore, EPA has assumed that D-glucurono-6-deoxy-L-manno-D-
glucan, acetate, calcium magnesium potassium sodium salt (diutan gum)
does not have a common mechanism of toxicity with other substances. For
information regarding EPA's efforts to determine which chemicals have a
common mechanism of toxicity and to evaluate the cumulative effects of
such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

D. Safety Factor for Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an
additional tenfold (10X) margin of safety for infants and children in
the case of threshold effects to account for prenatal and postnatal
toxicity and the completeness of the database on toxicity and exposure
unless EPA determines based on reliable data that a different margin of
safety will be safe for infants and children. This additional margin of
safety is commonly referred to as the Food Quality Protection Act
Safety Factor (FQPA SF). In applying this provision, EPA either retains
the default value of 10X, or uses a different additional safety factor
when reliable data available to EPA support the choice of a different
factor.
    Based on an assessment of D-glucurono-6-deoxy-L-manno-D-glucan,
acetate, calcium magnesium potassium sodium salt (diutan gum), EPA
concluded that there are no toxicological endpoints of concern for the
U.S. population, including infants and children. As part of its
qualitative assessment, the Agency did not use safety factors for
assessing risk and no additional safety factor is needed for assessing
risk to infants and children.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide
exposures are safe by comparing aggregate exposure estimates to the
acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA
calculates the lifetime probability of acquiring cancer given the
estimated aggregate exposure. Short-, intermediate-, and chronic-term
risks are evaluated by comparing the estimated aggregate food, water,
and residential exposure to the appropriate PODs to ensure that an
adequate MOE exists.
    Based on the lack of any toxicological endpoints of concern, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population or to infants and children from aggregate
exposure to residues of D-glucurono-6-deoxy-L-manno-D-glucan, acetate,
calcium magnesium potassium sodium salt (diutan gum).

V. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since
the Agency is establishing an exemption from the requirement of a
tolerance without any numerical limitation.

VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is
established under 40 CFR 180.910 and 40 CFR 180.940(a) for D-glucurono-
6-deoxy-L-manno-D-glucan, acetate, calcium magnesium potassium sodium
salt (diutan gum) (CAS Reg. No. 595585-15-2) when used as an inert
ingredient (stabilizer/suspension agent) in pesticide formulations
applied to growing crops pre- and post-harvest and to food contact
surfaces.

VII. Statutory and Executive Order Reviews

    This action establishes an exemption from the requirement of a
tolerance under FFDCA section 408(d) in response to a petition
submitted to the Agency. The Office of Management and Budget (OMB) has
exempted these types of actions from review under Executive Order
12866, entitled ``Regulatory Planning and Review'' (58 FR 51735,
October 4, 1993). Because this action has been exempted from review
under Executive Order 12866, this action is not subject to Executive
Order 13211, entitled ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) or Executive Order 13045, entitled ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997). This action does not contain any information
collections subject to OMB approval under the Paperwork Reduction Act
(PRA) (44 U.S.C. 3501 et seq.), nor does it require any special
considerations under Executive Order 12898, entitled ``Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under FFDCA section 408(d), such as the exemption in this
final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), do not apply.

    This action directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of FFDCA section 408(n)(4). As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined that Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999) and Executive Order 13175, entitled
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000) do not apply to this action. In addition, this
action does not impose any enforceable duty or contain any unfunded
mandate as described under Title II of the Unfunded Mandates Reform Act
(UMRA) (2 U.S.C. 1501 et seq.).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 272 note).

VIII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: June 1, 2016.
Susan Lewis,
Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. In Sec.  180.910 add alphabetically the inert ingredients to the
table to read as follows:

Sec.  180.910  Inert ingredients used pre- and post-harvest; exemptions
from the requirement of a tolerance.

* * * * *

------------------------------------------------------------------------
        Inert ingredients               Limits               Uses
------------------------------------------------------------------------

                              * * * * * * *
D-glucurono-6-deoxy-L-manno-D-     ................  Stabilizer/
 glucan, acetate, calcium                             suspension agent.
 magnesium potassium sodium salt
 (diutan gum) (CAS Reg. No.
 595585-15-2).

                              * * * * * * *
------------------------------------------------------------------------

0
3. In Sec.  180.940(a) add alphabetically the inert ingredients to the
table to read as follows:

Sec.  180.940  Tolerance exemptions for active and inert ingredients
for use in antimicrobial formulations (Food contact surface sanitizing
solutions).

* * * * *
    (a) * * *

------------------------------------------------------------------------
                                   CAS Registration
       Pesticide chemical                 No.               Limits
------------------------------------------------------------------------

                              * * * * * * *
D-glucurono-6-deoxy-L-manno-D-    (CAS No. 595585-15- None.
 glucan, acetate, calcium          2).
 magnesium potassium sodium salt
 (diutan gum).

                              * * * * * * *
------------------------------------------------------------------------

* * * * *
[FR Doc. 2016-13805 Filed 6-10-16; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: December 11, 2008 (Volume 73, Number 239)]
[Notices]
[Page 75475-75485]
[DOCID:fr11de08-103]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-28527; File No. 812-13492]

RiverSource Life Insurance Company, et al., Notice of Application

December 4, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of amended and restated application for an order of
exemption pursuant to Section 26(c) of the Investment Company Act of
1940 (the ``1940 Act'') approving certain substitutions of securities
and an order of exemption pursuant to Section 17(b) of the 1940 Act
from Section 17(a) of the 1940 Act.

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    Applicants: RiverSource Life Insurance Company (``RiverSource
Life''), RiverSource Life Insurance Co. of New York (``RiverSource Life
of NY'' and, together with RiverSource Life, the ``Companies''),
RiverSource Variable Account10 (``Account 10''), RiverSource Variable
Life Separate Account (``Variable Life Separate Account''), RiverSource
of New York Variable Annuity Account (``Variable Annuity Account NY'')
and RiverSource of New York Account 8 (``Account 8 NY'') (except for
the Companies, each a ``separate account'' as defined in Section
2(a)(37) of the Investment Company Act of 1940, as amended (the ``1940
Act''); the separate accounts are collectively referred to herein as
the ``Separate Accounts'') (all foregoing parties collectively referred
to herein as the ``Applicants''); and RiverSource Variable Series Trust
(``RiverSource VS Trust,'' and together with the Applicants, the
``Section 17(b) Applicants'').
    Filing Date: The application was filed on February 11, 2008, and
amended and restated on October 30, 2008.
    Summary of Application: Applicants request an order of the
Commission, pursuant to Section 26(c) of the 1940 Act, approving the
substitution of shares

of certain investment portfolios (``Substituted Portfolios'') for
shares of certain other investment portfolios (``Replacement
Portfolios'') under certain variable life insurance policies and/or
variable annuity contracts (``Contracts''), each issued through a
Separate Account. The Section 17(b) Applicants seek an order of
exemption pursuant to Section 17(b) of the 1940 Act from Section 17(a)
of the 1940 Act to the extent necessary to permit the Companies to
carry out the Substitutions.
    Hearing or Notification of Hearing: An order granting the
application will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Secretary of
the Commission and serving Applicants with a copy of the request,
personally or by mail. Hearing requests should be received by the
Commission by 5:30 p.m. on December 29, 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 may request notification of a hearing by
writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NW., Washington, DC 20549. Applicants, c/o Rodney Jay Vessels, Esq.,
RiverSource Life Insurance Company, 829 Ameriprise Financial Center,
Minneapolis, Minnesota 55474, with copy to Stephen E. Roth, Esq.,
Sutherland Asbill & Brennan LLP, 1275 Pennsylvania Avenue, NW.,
Washington, DC 20004-2415.

FOR FURTHER INFORMATION CONTACT: Mark A. Cowan, Senior Counsel, or
Zandra Y. Bailes, Branch Chief, Office of Insurance Products, Division
of Investment Management, at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application is available for a fee from the
Public Reference Branch of the Commission, 100 F Street, NE.,
Washington, DC 20549<PHONE_NUMBER>).

Applicants' Representations

    1. RiverSource Life is a stock life insurance company organized in
1957 under the laws of the state of Minnesota and is located at 70100
Ameriprise Financial Center, Minneapolis, MN 55474. It is a wholly-
owned subsidiary of Ameriprise Financial, Inc.
    2. RiverSource Life established Account 10 on August 23, 1995
pursuant to the provisions of Minnesota law. Account 10 meets the
definition of ``separate account'' under the federal securities laws.
Account 10 is registered with the Commission under the 1940 Act as a
unit investment trust (File No. 811-07355). The assets of Account 10
support certain Contracts that offer Substituted Portfolios as
investment options (the ``Account 10 Contracts''), and interests in
Account 10 offered through such Contracts have been registered under
the Securities Act of 1933 (``1933 Act'') on Form N-4.
    3. RiverSource Life is the legal owner of the assets in Account 10.
The assets of Account 10 are not chargeable with liabilities arising
out of any other RiverSource Life business. Income, capital gains and/
or capital losses, whether or not realized, from assets allocated to
Account 10 are credited to or charged against the account without
regard to the income, capital gains, and/or capital losses arising out
of any other RiverSource Life business. Account 10 is segmented into
subaccounts, and certain subaccounts invest in the Substituted
Portfolios.
    4. A majority of Account 10 Contracts involved in the Substitution
are no longer offered for sale, except for RiverSource Retirement
Advisor 4 Advantage Variable Annuity, RiverSource Retirement Advisor 4
Select Variable Annuity and RiverSource Retirement Advisor 4 Access
Variable Annuity Contracts. The subaccounts investing in the
Substituted Portfolios are currently available for the allocation of
additional purchase payments and transfer of contract value under the
Account 10 Contracts for existing and new Contract owners, and will
continue to be available to such Contract owners until the time the
Substitutions occur.
    5. The terms and conditions, including charges and expenses,
applicable to the Account 10 Contracts are described in the
registration statements relating to such Contracts. Pursuant to the
Account 10 Contracts, RiverSource Life reserves the right to substitute
shares of one portfolio for shares of another. In the prospectuses for
the Account 10 Contracts, RiverSource Life also reserves the right to
substitute shares of one portfolio for shares of another.
    6. The terms of the Account 10 Contracts and the prospectuses for
the Account 10 Contracts also permit owners to transfer contract value
among the subaccounts. Currently, subject to certain restrictions,
owners may redistribute contract value among the accounts without
charge at any time until annuity payouts begin, and once per contract
year among the subaccounts after annuity payouts begin. RiverSource
Life does not assess a transfer charge. RiverSource Life also has
market timing policies and procedures that may operate to limit
transfers. If the Account 10 Contract offers a fixed account and GPA
account, RiverSource Life may impose restrictions on transfers to and
from the fixed account and GPA account.
    7. RiverSource Life established Variable Life Separate Account on
October 16, 1985 pursuant to the provisions of Minnesota law. Variable
Life Separate Account meets the definition of ``separate account''
under the federal securities laws. Variable Life Separate Account is
registered with the Commission under the 1940 Act as a unit investment
trust (File No. 811-4298). The assets of Variable Life Separate Account
support certain Contracts that offer Substituted Portfolios as
investment options (the ``Variable Life Separate Account Contracts''),
and interests in Variable Life Separate Account offered through such
Contracts have been registered under the 1933 Act on Form N-4.
    8. RiverSource Life is the legal owner of the assets in Variable
Life Separate Account. The assets of Variable Life Separate Account are
not chargeable with liabilities arising out of any other RiverSource
Life business. Income, capital gains and/or capital losses, whether or
not realized, from assets allocated to Variable Life Separate Account
are credited to or charged against the account without regard to the
income, capital gains, and/or capital losses arising out of any other
RiverSource Life business. Variable Life Separate Account is segmented
into subaccounts, and certain subaccounts invest in the Substituted
Portfolios.
    9. The majority of the Variable Life Separate Account Contracts
involved in the Substitution are no longer offered for sale, except
RiverSource Single Premium Variable Life, RiverSource Variable Life
Universal Life IV and RiverSource Variable Life Universal Life IV--
Estate Series. The subaccounts investing in the Substituted Portfolios
are currently available for the allocation of additional purchase
payments and transfer of contract value under the Variable Life
Separate Account Contracts for existing and new Contract owners, and
will continue to be available to such Contract owners until the time
the Substitutions occur.
    10. The terms and conditions, including charges and expenses,
applicable to the Variable Life Separate Account Contracts are
described in the registration statements relating to such

Contracts. Pursuant to the Variable Life Separate Account Contracts,
RiverSource Life reserves the right to substitute shares of one
portfolio for shares of another. In the prospectuses for the Variable
Life Separate Account Contracts, RiverSource Life also reserves the
right to substitute shares of one portfolio for shares of another.
    11. The terms of the Variable Life Separate Account Contracts and
the prospectuses for the Variable Life Separate Account Contracts also
permit owners to transfer contract value among the subaccounts.
Currently, subject to certain restrictions, owners may redistribute
contract value among the accounts without charge. RiverSource Life does
not assess a transfer charge. RiverSource Life also has market timing
policies and procedures that may operate to limit transfers. If the
Variable Life Separate Account Contract offers a fixed account,
RiverSource Life may impose restrictions on transfers to and from the
fixed account.
    12. RiverSource Life of NY is a stock life insurance company
organized in 1972 under the laws of the state of New York and is
located at 20 Madison Avenue Extension, Albany, New York 12203. It is a
wholly-owned subsidiary of RiverSource Life. RiverSource Life of NY
conducts a conventional life insurance business. Its primary products
currently include fixed and variable annuity contracts and life
insurance policies. These products are distributed through individual
insurance agents, financial planners, and broker-dealers to both the
tax qualified and non-tax-qualified markets. As of December 31, 2007,
RiverSource Life of NY's assets were in excess of $ 5.32 billion. For
purposes of the 1940 Act, RiverSource Life of NY is the depositor and
sponsor of the Variable Annuity Account NY and Account 8 NY as those
terms have been interpreted by the Commission with respect to variable
annuity and variable life insurance separate accounts.
    13. RiverSource Life of NY established Variable Annuity Account NY
on April 17, 1996 pursuant to the provisions of New York law. Variable
Annuity Account NY meets the definition of ``separate account'' under
the federal securities laws. Variable Annuity Account NY is registered
with the Commission under the 1940 Act as a unit investment trust (File
No. 811-07623). The assets of Variable Annuity Account NY support
certain Contracts that offer Substituted Portfolios as investment
options (the ``Variable Annuity Account NY Contracts''), and interests
in Variable Annuity Account NY offered through such Contracts have been
registered under the 1933 Act on Form N-4.
    14. RiverSource Life of NY is the legal owner of the assets in
Variable Annuity Account NY. The assets of Variable Annuity Account NY
are not chargeable with liabilities arising out of any other
RiverSource Life of NY business. Income, capital gains and/or capital
losses, whether or not realized, from assets allocated to Variable
Annuity Account NY are credited to or charged against the account
without regard to the income, capital gains, and/or capital losses
arising out of any other RiverSource Life of NY business. Variable
Annuity Account NY is segmented into subaccounts, and certain
subaccounts invest in the Substituted Portfolios.
    15. The majority of the Variable Annuity Account NY Contracts
involved in the Substitution are no longer offered for sale, except
RiverSource Retirement Advisor 4 Advantage Variable Annuity,
RiverSource Retirement Advisor 4 Select Variable Annuity and
RiverSource Retirement Advisor 4 Access Variable Annuity Contracts. The
subaccounts investing in the Substituted Portfolios are currently
available for the allocation of additional purchase payments and
transfer of contract value under the Variable Annuity Account NY
Contracts for existing and new Contract owners, and will continue to be
available to such Contract owners until the time the Substitutions
occur.
    16. The terms and conditions, including charges and expenses,
applicable to the Variable Annuity Account NY Contracts are described
in the registration statements relating to such Contracts. Pursuant to
the Variable Annuity Account NY Contracts, RiverSource Life of NY
reserves the right to substitute shares of one portfolio for shares of
another. In the prospectuses for the Variable Annuity Account NY
Contracts, RiverSource Life of NY also reserves the right to substitute
shares of one portfolio for shares of another.
    17. The terms of the Variable Annuity Account NY Contracts and the
prospectuses for the Variable Annuity Account NY Contracts also permit
owners to transfer contract value among the subaccounts. Currently,
subject to certain restrictions, owners may redistribute contract value
among the accounts without charge at any time until annuity payouts
begin, and once per contract year among the subaccounts after annuity
payouts begin. RiverSource Life of NY does not assess a transfer
charge. RiverSource Life of NY also has market timing policies and
procedures that may operate to limit transfers. If the Variable Annuity
Account NY Contract offers a fixed account, RiverSource Life of NY may
impose restrictions on transfers to and from the fixed account.
    18. RiverSource Life of NY established Account 8 NY on September
12, 1985 pursuant to the provisions of New York law. Account 8 NY meets
the definition of ``separate account'' under the federal securities
laws. Account 8 NY is registered with the Commission under the 1940 Act
as a unit investment trust (File No. 811-5213). The assets of Account 8
NY support certain Contracts that offer Substituted Portfolios as
investment options (the ``Account 8 NY Contracts''), and interests in
Account 8 NY offered through such Contracts have been registered under
the 1933 Act on Form N-4.
    19. RiverSource Life of NY is the legal owner of the assets in
Account 8 NY. The assets of Account 8 NY are not chargeable with
liabilities arising out of any other RiverSource Life of NY business.
Income, capital gains and/or capital losses, whether or not realized,
from assets allocated to Account 8 NY are credited to or charged
against the account without regard to the income, capital gains, and/or
capital losses arising out of any other RiverSource Life of NY
business. Account 8 NY is segmented into subaccounts, and certain
subaccounts invest in the Substituted Portfolios.
    20. The majority of the Account 8 NY Contracts involved in the
Substitution are no longer offered for sale, except RiverSource
Succession Select Variable Life Insurance and RiverSource Variable Life
Universal Life IV and RiverSource Variable Life Universal Life IV--
Estate Series Contracts. The subaccounts investing in the Substituted
Portfolios are currently available for the allocation of additional
purchase payments and transfer of contract value under the Account 8 NY
Contracts for existing and new Contract owners, and will continue to be
available to such Contract owners until the time the Substitutions
occur.
    21. The terms and conditions, including charges and expenses,
applicable to the Account 8 NY Contracts are described in the
registration statements relating to such Contracts. Pursuant to the
Account 8 NY Contracts, RiverSource Life of NY reserves the right to
substitute shares of one portfolio for shares of another. In the
prospectuses for the Account 8 NY Contracts, RiverSource Life of NY
also reserves the right to substitute shares of one portfolio for
shares of another.
    22. The terms of the Account 8 NY Contracts and the prospectuses
for the

Account 8 NY Contracts also permit owners to transfer contract value
among the subaccounts. Currently, subject to certain restrictions,
owners may redistribute contract value among the accounts without
charge at any time until annuity payouts begin, and once per contract
year among the subaccounts after annuity payouts begin. RiverSource
Life of NY does not assess a transfer charge. RiverSource Life of NY
also has market timing policies and procedures that may operate to
limit transfers. If the Account 8 NY Contract offers a fixed account,
RiverSource Life of NY may impose restrictions on transfers to and from
the fixed account.
    23. The proposed substitutions are as follows: (i) Class I shares
of the American Century VP Value Fund of the American Century Variable
Portfolios for shares of RiverSource VP--Diversified Equity Income Fund
of the RiverSource Variable Series Trust; (ii) Class II Shares of the
Pioneer Equity Income VCT Portfolio of the Pioneer Variable Contracts
Trust for shares of RiverSource VP--Diversified Equity Income Fund of
the RiverSource Variable Series Trust; (iii) Class IB Shares of the
Putnam VT International New Opportunities Fund of the Putnam Variable
Trust for Series II Shares of the AIM V.I. International Growth Fund of
the AIM Variable Insurance Funds; (iv) Service Shares of the Dreyfus
VIF International Value Portfolio of the Dreyfus Variable Investment
Fund for Class B shares of the AllianceBernstein VPS International
Value Portfolio of the AllianceBernstein Variable Products Series Fund;
(v) Service Shares of the Lazard Retirement International Equity
Portfolio of the Lazard Retirement Series for Class B shares of the
AllianceBernstein VPS International Value Portfolio of the
AllianceBernstein Variable Products Series Fund; (vi) Service Class
shares of the MFS[supreg] Total Return Series of the MFS[supreg]
Variable Insurance Trust for shares of RiverSource VP--Balanced Fund of
the RiverSource Variable Series Trust; (vii) Class 1 shares of the
FTVIPT Templeton Developing Markets Securities Fund of the Franklin
Templeton Variable Insurance Products Trust for shares of Threadneedle
VP--Emerging Markets Fund of the RiverSource Variable Series Trust; and
(viii) Class 2 shares of the FTVIPT Templeton Foreign Securities Fund
of the Franklin Templeton Variable Insurance Products Trust for Class 2
shares of the Evergreen VA International Equity Fund of the Evergreen
Variable Annuity Trust.
    24. The Applicants represent that each of the Replacement
Portfolios has substantially similar investment objectives, principal
investment strategies, and risk characteristics to those of its
corresponding Substituted Portfolio as stated in their respective
prospectuses and/or Statements of Additional Information (``SAI'') and
as set out in the application.
    25. The Applicants represent that each of the Replacement
Portfolios' total net operating expenses and aggregate investment
management fees and 12b-1 fees, for the year ended December 31, 2007,
expressed as an annual percentage of average daily net assets, are no
higher than those of its corresponding Substituted Portfolio (except
for the Threadneedle VP--Emerging Markets Fund, which has slightly
higher total net operating expenses than the FTVIPT Templeton
Developing Markets Securities Fund, Class 1), as set forth in the
following chart:
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BILLING CODE 8011-01-P
    26. Applicants represent that the Substitutions proposed herein are
part of an overall business goal of the Companies to make the Contracts
more attractive to Contract owners by providing a diverse array of
investment options that are neither redundant nor duplicative in terms
of the investment types and styles of the mutual funds underlying such
options. The Companies believe that a more concentrated and streamlined
array of investment options could result in increased operational and
administrative efficiencies and economies of scale for the Companies.
The Companies also believe that Contracts that offer too many similar
investment options may be unnecessarily confusing to Contract owners
and may increase the Companies' costs of administering the Contracts.
    27. Applicants represent that the Companies chose the Replacement
Portfolios with the goal of ensuring that Contract owners would be
provided with similar investment options under their Contracts
following the Substitutions, based on an analysis of investment
objectives, strategies, risks, performance, fees and expenses.
    28. Applicants represent that for all but one Substitution, the
expense ratio of the Replacement Portfolio is lower than that of the
corresponding Substituted Portfolio. Applicants also represent that for
a vast majority of the

Substitutions, the Replacement Portfolio is larger than or of a
comparable size to the corresponding Substituted Portfolio. Applicants
note that a high level of assets means various fund costs (such as
legal, accounting, printing and trustee fees) are spread over a larger
base, with each Contract owner potentially bearing a smaller portion of
the cost than would be the case if the Replacement Portfolio were
smaller in size. Applicants also note that for many of the Replacement
Portfolios, assets will increase as a result of the Substitutions, in
some cases significantly, and thus it is anticipated that with such an
increase, operating expenses will decrease.
    29. Ultimately, given all of the factors discussed above, the
Companies concluded that the Substituted Portfolios offered under the
Contracts warranted replacement. Accordingly, the Applicants seek the
Commission's approval under Section 26(c) to engage in the substitution
transactions described below.
    30. The Companies will effect the Substitutions following the
issuance of the requested order as follows. As of the effective date of
the Substitutions (``Effective Date''), each Separate Account will
either redeem shares of the applicable Substituted Portfolios in-kind
or the Substituted Portfolios will liquidate portfolio securities as
necessary and shares of the Replacement portfolio will be purchased
with cash. In either event, the proceeds of such redemptions will then
be used to purchase shares of the corresponding class of the
Replacement Portfolio, with each subaccount of the applicable Separate
Account investing the proceeds of its redemption from the Substituted
Portfolios in the applicable class of the Replacement Portfolio.
    31. Redemption requests and purchase orders will be placed
simultaneously so that contract values will remain fully invested at
all times. All redemptions of shares of the Substituted Portfolios and
purchases of shares of the Replacement Portfolio will be effected in
accordance with Section 22(c) of the 1940 Act and Rule 22c-1
thereunder.
    32. The Substitutions will take place at relative net asset value
as of the Effective Date with no change in the amount of any Contract
owner's contract value or death benefit or in the dollar value of his
or her investments in any of the subaccounts. Contract owners will not
incur any additional fees or charges as a result of the Substitutions,
nor will their rights or the Companies' obligations under the Contracts
be altered in any way, and the Substitutions will not change Contract
owners' insurance benefits under the Contracts. All expenses incurred
in connection with the Substitutions, including legal, accounting,
transactional, and other fees and expenses, including brokerage
commissions, will be paid by RiverSource Life or RiverSource Life of
NY. In addition, the Substitutions will not impose any tax liability on
Contract owners. The Substitutions will not cause the Contract fees and
charges currently paid by existing Contract owners to be greater after
the Substitutions than before the Substitutions. Neither RiverSource
Life nor RiverSource Life of NY will exercise any right it may have
under the Contracts to impose restrictions on transfers under the
Contracts for a period of at least thirty (30) days following the
Substitutions. The only exception to this would be restrictions that
RiverSource Life or RiverSource Life of NY may impose to prevent or
restrict ``market timing'' activities by Contract owners or their
agents.
    33. The Companies represent that, with respect to Contracts
outstanding on the Effective Date, the Companies will reimburse, on the
last business day of each fiscal period (not to exceed a fiscal
quarter), during the twenty-four months following the Effective Date,
the subaccounts investing in each applicable Replacement Portfolio to
the extent that the sum of the Replacement Portfolio's net operating
expenses (taking into account any expense waiver or reimbursement) and
the Separate Account expenses for such period exceed, on an annualized
basis, the sum of the corresponding Substituted Portfolio's net
operating expenses (taking into account any expense waiver or
reimbursement) and the Separate Account expenses for the fiscal year
ended December 31, 2007. In addition, for twenty-four months following
the Effective Date, the Companies will not increase asset-based fees or
charges for Contracts outstanding on the Effective Date.
    34. Applicants represent that the procedures to be implemented are
sufficient to assure that each Contract owner's cash values immediately
after the Substitutions shall be equal to the cash value immediately
before the Substitutions.
    35. Applicants represent that under the Manager of Managers Order
applicable to the RiverSource Funds, a vote of the shareholders is not
necessary to change a subadviser of the applicable Replacement
Portfolio, except for changes involving an affiliated subadviser.
Notwithstanding, after the Effective Date of the Substitutions, the
Applicants agree not to change the Replacement Portfolio's subadviser,
add a new subadviser, or otherwise rely on the Manager of Managers
Order without first obtaining shareholder approval of either the
subadviser change or the Replacement Portfolio's continued ability to
rely on the Manager of Managers Order.
    36. Applicants note that Contract owners were notified of the
initial application by means of a prospectus supplement for each of the
Contracts stating that the Applicants filed the initial application and
seek approval for the Substitutions (``Pre-Substitution Notice''). The
Pre-Substitution Notice set forth the anticipated Effective Date and
advised Contract owners that contract values attributable to
investments in the Substituted Portfolios will be transferred to the
Replacement Portfolio, without charge (including sales charges or
surrender charges) and without counting toward the number of transfers
that may be permitted without charge, on the Effective Date. The Pre-
Substitution Notice stated that, from the date the initial application
was filed with the Commission through the date thirty (30) days after
the Substitutions, Contract owners may make one transfer of contract
value from the subaccounts investing in the Substituted Portfolios
(before the Substitutions) or the Replacement Portfolio (after the
Substitutions) to one or more other subaccount(s) without charge
(including sales charges or surrender charges) and without that
transfer counting against their contractual transfer limitations.
    37. Applicants represent that all Contract owners will have
received a copy of the most recent Replacement Portfolio prospectus
prior to the Substitutions.
    38. Applicants represent that within five (5) days following the
Substitutions, Contract owners affected by the Substitutions will be
notified in writing that the Substitutions were carried out. This
notice will restate the information set forth in the Pre-Substitution
Notice.

Applicants' Legal Analysis

    1. Section 26(c) of the 1940 Act (formerly, Section 26(b))
prohibits any depositor or trustee of a unit investment trust that
invests exclusively in the securities of a single issuer from
substituting the securities of another issuer without the approval of
the Commission. Section 26(c) provides that such approval shall be
granted by order of the Commission, if the evidence establishes that
the substitution is consistent with the protection of

investors and the purposes of the 1940 Act.
    2. Section 26(c) was intended to provide for Commission scrutiny of
proposed substitutions which could, in effect, force shareholders
dissatisfied with the substitute security to redeem their shares,
thereby possibly incurring a loss of the sales load deducted from
initial premium, an additional sales load upon reinvestment of the
proceeds of redemption, or both. The section was designed to forestall
the ability of a depositor to present holders of interest in a unit
investment trust with situations in which a holder's only choice would
be to continue an investment in an unsuitable underlying security, or
to elect a costly and, in effect, forced redemption. For the reasons
described below, the Applicants submit that the Substitutions meet the
standards set forth in Section 26(c) and that, if implemented, the
Substitutions would not raise any of the aforementioned concerns that
Congress intended to address when the 1940 Act was amended to include
this provision. In addition, the Applicants submit that the proposed
Substitutions meet the standards that the Commission and its Staff have
applied to substitutions that have been approved in the past.
    3. The replacement of the Substituted Portfolios with the
Replacement Portfolio is consistent with the protection of Contract
owners and the purposes fairly intended by the policy and provisions of
the 1940 Act and, thus, meets the standards necessary to support an
order pursuant to Section 26(c) of the 1940 Act.
    4. Although not always identical, the investment objectives and
principal investment strategies of the Replacement Portfolio are
substantially similar to those of the corresponding Substituted
Portfolio.
    5. The total operating expenses, prior to expense waivers and
reimbursements, of the applicable class of the Replacement Portfolios
were lower than those of the corresponding Substituted Portfolio as a
December 31, 2007, except for the Threadneedle VP--Emerging Markets
Fund, which has slightly higher total net operating expenses than the
FTVIPT Templeton Developing Markets Securities Fund, Class 1. For a
two-year period following the date of the Substitutions the Companies
will ensure that total net operating expenses of the applicable class
of all Replacement Portfolios, together with Separate Account expenses,
will not exceed, on an annualized basis, the total net operating
expenses of the corresponding Substituted Portfolio, together with
Separate Account expenses, as of December 31, 2007.
    6. Applicants request an order of the Commission pursuant to
Section 26(c) of the 1940 Act approving the Substitutions. The
Applicants submit that, for all the reasons stated above, the
Substitutions are consistent with the protection of investors and the
purposes fairly intended by the policy of the Contracts and provisions
of the 1940 Act.
    7. The Section 17(b) Applicants also request that the Commission
issue an order pursuant to Section 17(b) of the 1940 Act exempting them
from Section 17(a) of the 1940 Act to the extent necessary to permit
RiverSource Life or RiverSource Life of NY to carry out the
Substitutions by redeeming shares issued by the Substituted Portfolios
in-kind and using the distributed securities to purchase shares issued
by the applicable Replacement Portfolios.
    8. Section 17(a)(l) and (a)(2) of the 1940 Act generally prohibit
any affiliated person of a registered investment company, or any
affiliated person of an affiliated person, from selling any security or
other property to such registered investment company and from
purchasing any security or other property from such registered
investment company. As described below, RiverSource Life and
RiverSource Life of NY anticipate that the Substitutions will be done
(in whole or in part) by redeeming shares of the Substituted Portfolios
in-kind rather than in cash and then using those assets to purchase
shares of the Replacement Portfolio. Redemptions and purchases in-kind
involve the purchase of property from a registered investment company
and the sale of property to a registered investment company by
RiverSource Life, RiverSource Life of NY, and RiverSource Funds, each
arguably an affiliated person of those investment companies.
    9. Pursuant to Section 17(a)(1) of the 1940 Act, the Section 17(b)
Applicants may be considered affiliates of one or more of the
Replacement Portfolios involved in such Substitutions, based upon the
definition of ``affiliated person'' under Section 2(a)(3) of the 1940
Act. In addition to the Companies' affiliation with each Replacement
Portfolio of the RiverSource Funds, the Companies, through their
Separate Accounts, in the aggregate own 5% or more of the outstanding
shares of the following Replacement Portfolios: AllianceBernstein VPS
International Value Portfolio and Evergreen VA International Equity
Fund. Therefore, arguably each Company is an affiliated person of these
Replacement Portfolios. Because the Substitutions involving these
Replacement Portfolios and the Replacement Portfolios of the
RiverSource Funds may be effected, in whole or in part, by means of in-
kind redemptions and subsequent purchases of shares, and also by means
of in-kind transactions, these Substitutions may be deemed to involve
one or more purchases or sales of securities or property between
affiliates.
    10. Section 17(b) of the 1940 Act provides that the Commission may,
upon application, grant an order exempting any transaction from the
prohibitions of Section 17(a) if the evidence establishes that: (1) The
terms of the proposed 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; (2) the proposed
transaction is consistent with the policy of each registered investment
company concerned, as recited in its registration statement and records
filed under the 1940 Act; and (3) the proposed transaction is
consistent with the general purposes of the 1940 Act.
    11. Rule 17a-7 under the 1940 Act exempts from Section 17(a),
subject to certain enumerated conditions, a purchase or sale
transaction between registered investment companies or separate series
of registered investment companies, which are affiliated persons, or
affiliated persons of affiliated persons, of each other, between
separate series of a registered investment company, or between a
registered investment company or a separate series of a registered
investment company and a person which is an affiliated person of such
registered investment company (or affiliated person of such person)
solely by reason of having a common investment adviser or investment
advisers which are affiliated persons of each other, common directors,
and/or common officers.
    12. The Section 17(b) Applicants submit that the terms of the
Substitutions, including the consideration to be paid and received, as
described in the Application, are reasonable and fair and do not
involve overreaching on the part of any person concerned. The Section
17(b) Applicants also submit that the Substitutions are consistent with
the policies of the applicable fund companies and their portfolios, as
recited in the current registration statements and reports filed by
them under the 1940 Act. Finally, the Section 17(b) Applicants submit
that the proposed Substitutions are consistent with the general
purposes of the 1940 Act.

    13. RiverSource Life and RiverSource Life of NY assert that the
terms under which the in-kind redemptions and purchases will be
effected are reasonable and fair and do not involve overreaching on the
part of any person principally because the applicable Substitutions
will comply in substance with all but one of the principal conditions
enumerated in Rule 17a-7. The use of in-kind transactions will not
cause Contract owner interests to be diluted. The proposed transactions
will take place at relative net asset value as of the Effective Date in
conformity with the requirements of Section 22(c) of the 1940 Act and
Rule 22c-1 thereunder with no change in the amount of any Contract
owner's contract value or death benefit or in the dollar value of his
or her investment in any of the Separate Accounts. Contract owners will
not suffer any adverse tax consequences as a result of the
Substitutions. Fees and charges under the Contracts will not increase
because of the Substitutions.
    14. Even though the Section 17(b) Applicants may not rely on Rule
17a-7 because they cannot meet all of its conditions, the Section 17(b)
Applicants submit that the Rule's conditions outline the type of
safeguards that result in transactions that are fair and reasonable to
registered investment company participants and preclude overreaching in
connection with an investment company by its affiliated persons. The
Section 17(b) Applicants will carry out the proposed in-kind purchases
in conformity with all of the conditions of Rule 17a-7 and the
procedures adopted thereunder, except that the consideration paid for
the securities being purchased or sold may not be entirely cash.
Nevertheless, the circumstances surrounding the proposed Substitutions
will be such as to offer the same degree of protection to the
Replacement Portfolio from overreaching that Rule 17a-7 provides to it
generally in connection with its purchase and sale of securities under
that Rule in the ordinary course of its business.
    15. In particular, the proposed Substitutions will not be effected
at a price that is disadvantageous to the Substituted Portfolios or the
Replacement Portfolios. Although the Substitutions may not be entirely
for cash, each will be effected based upon (1) the independent market
price of the portfolio securities valued as specified in paragraph (b)
of Rule 17a-7, and (2) the net asset value per share of each Portfolio
involved valued in accordance with the procedures disclosed in its
registration statement and as required by Rule 22c-1 under the 1940
Act. Moreover, consistent with Rule 17a-7(d), no brokerage commissions,
fees, or other remuneration will be paid in connection with the in-kind
transactions. All in-kind redemptions from a Substituted Portfolio of
which any of the Substitution Applicants is an affiliated person will
be effected in accordance with the conditions set forth in the
Commission's no-action letter issued to Signature Financial Group, Inc.
(available December 28, 1999).
    16. Consistent with Section 17(b) and Rule 17a-7(c), any in-kind
redemptions and purchases for purposes of the Substitutions will be
transacted in a manner consistent with the investment objectives and
policies of the applicable Substituted Portfolios and the Replacement
Portfolios, as recited in their registration statements. The adviser or
any subadviser to each Replacement Portfolio will review the securities
holdings of the Substituted Portfolios to determine whether their
portfolio holdings would be suitable investments for the corresponding
Replacement Portfolio in the overall context of that Portfolio's
investment objectives and policies and consistent with the management
of that Portfolio. The adviser or any subadviser to each Replacement
Portfolio will conduct its review of the Substituted Portfolios'
securities holdings in the same manner that a board of directors would
normally follow in accordance with Rule 17a-7. The adviser or any
subadviser to each Replacement Portfolio will only accept those
securities as consideration for its shares that it would have acquired
in a cash transaction. The Section 17(b) Applicants state that
securities to be paid out as redemption proceeds and subsequently
contributed to the Replacement Portfolios to effect the contemplated
in-kind purchases of shares will be valued based on the normal
valuation procedures of the redeeming and purchasing Portfolios. The
redeeming and purchasing values will be the same. If the adviser or any
subadviser to any Replacement Portfolio declines to accept particular
portfolio securities of the corresponding Substituted Portfolio for
purchase in-kind of shares of that corresponding Portfolio, the
applicable Substituted Portfolio will liquidate portfolio securities as
necessary and shares of the corresponding Replacement Portfolio will be
purchased with cash.
    17. Applicants represent that the Substitutions, as described
herein, are consistent with the general purposes of the 1940 Act as
stated in the Findings and Declaration of Policy in Section 1 of the
1940 Act. The proposed transactions do not present any of the
conditions or abuses that the 1940 Act was designed to prevent.
Securities to be paid out as redemption proceeds and subsequently
contributed to the Replacement Portfolio to effect the contemplated in-
kind purchases of shares will be valued based on the normal valuation
procedures of the redeeming Substituted Portfolios and purchasing
Replacement Portfolio. Therefore, there will be no change in value to
any Contract owner as a result of the Substitutions. The Commission has
granted relief to others based on similar facts.
    18. The Section 17(b) Applicants request an order of the Commission
pursuant to Section 17(b) of the 1940 Act exempting them from Section
17(a) of the 1940 Act to the extent necessary to permit the Companies
to carry out certain of the Substitutions by redeeming shares issued by
each applicable Substituted Portfolio in-kind and using the securities
distributed as redemption proceeds to purchase shares issued by the
applicable Replacement Portfolios. The Section 17(b) Applicants submit
that, for all of the reasons stated above, the terms of the proposed
in-kind redemptions and purchases, including the consideration to be
paid or received, are reasonable and fair to Contract owners and do not
involve overreaching on the part of any person; and furthermore,
granting the relief required herein for the proposed Substitutions that
may be effected by means of in-kind redemptions and purchases of shares
is appropriate, in the public interest, and consistent with the
policies of each Portfolio and the general purposes of the 1940 Act.

Applicants' Conditions

    For purposes of the approval sought pursuant to Section 26(c) of
the 1940 Act, the Substitutions described in the application will not
be completed unless all of the following conditions, and all other
conditions and representations set forth in the Application, are met:
    1. The Commission shall have issued an order (i) approving the
Substitutions under Section 26(c) of the 1940 Act as necessary to carry
out the transactions described in the application; and (ii) exempting
any in-kind redemptions and purchases from the provisions of Section
17(a) of the 1940 Act as necessary to carry out the transactions
described in the application.
    2. Each Contract owner will have been sent (i) prior to the
Effective Date, a copy of the effective prospectus for the Replacement
Portfolio, (ii) prior to the Effective Date, a Pre-Substitution Notice
describing the terms of the Substitutions

and the rights of the Contract owners in connection with the
Substitutions, and (iii) within five (5) days after the Substitutions
occur, a notice informing Contract owners affected by the Substitutions
that the Substitutions were carried out and restating the information
set forth in the Pre-Substitution Notice.
    3. The Companies shall have satisfied themselves that (i) the
Contracts allow the substitution of the Portfolios in the manner
contemplated by the Substitutions and related transactions described
herein, (ii) the transactions can be consummated as described in the
application under applicable insurance laws, and (iii) any applicable
regulatory requirements in each jurisdiction where the Contracts are
qualified for sale have been complied with to the extent necessary to
complete the transaction.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-29312 Filed 12-10-08; 8:45 am]

BILLING CODE 8011-01-P