[Federal Register: March 14, 2008 (Volume 73, Number 51)]
[Notices]
[Page 13926-13931]
[DOCID:fr14mr08-103]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-28191; File No. 812-13452]

Jefferson National Life Insurance Company, et al.

March 10, 2008.
AGENCY: Securities and Exchange Commission (the ``Commission'').

ACTION: Notice of application for an order of approval pursuant to
Section 26(c) of the Investment Company Act of 1940, as amended (the
``Act''), and an order of exemption pursuant to Section 17(b) of the
Act from Section 17(a) of the Act.

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Applicants: Jefferson National Life Insurance Company (``JNL''),
Jefferson National Life Annuity Account C (``Separate Account C''),
Jefferson National Life Annuity Account E (``Separate Account E''),
Jefferson National Life Annuity Account F (``Separate Account F''),
Jefferson National Life Annuity Account G (``Separate Account G''),
Jefferson National Life Annuity Account H (``Separate Account H''),
Jefferson National Life Annuity Account I (``Separate Account I''),
Jefferson National Life Annuity Account J (``Separate Account J''),
Jefferson National Life Annuity Account K (``Separate Account K''),
Conseco Variable Insurance-Separate Account L (``Separate Account L'',
and together with Separate Account C, Separate Account E, Separate
Account F, Separate Account G, Separate Account H, Separate Account I,
Separate Account J, and Separate Account K, the ``Separate Accounts''
and, collectively with JNL, the ``Applicants''), and Northern Lights
Variable Trust (``NLVT'' and collectively with Applicants, the
``Section 17 Applicants'').

Summary of Application: Applicants seek an order approving the proposed
substitution of shares of the PIMCO Variable Insurance Trust Money
Market Portfolio (the ``Substitution'') for shares of the JNF Money
Market Portfolio, a series of NLVT. Section 17 Applicants seek an order
exempting them from the provisions of Section 17(a) of the Act to the
extent necessary to permit JNL to carry out the Substitution.

Filing Date: The application was originally filed on November 21, 2007
and amended on March 7, 2008.

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 must be received by the
Commission by 5:30 p.m. on April 2, 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 requester's interest, the reason for the request, and the
issues contested. Persons who wish to be notified of a hearing may
request notification by writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090. Applicants, 9920 Corporate Campus
Drive, Suite 1000, Louisville, Kentucky 40223.

FOR FURTHER INFORMATION CONTACT: Michael Kosoff, Staff Attorney, at
(202) 551-6754 or Harry Eisenstein, 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 may be obtained for a fee from
the Public Reference Branch of the Commission, 100 F Street, NE.,
Washington, DC 20549<PHONE_NUMBER>).

Applicants' and Section 17 Applicants' Representations

    1. JNL is a stock life insurance company originally organized in
1937 under the laws of Texas.
    2. Separate Account C was established in 1980. Separate Account C
is registered under the Act as a unit investment trust (File No. 811-
04819) and is used to fund variable annuity contracts issued by JNL.
Two variable annuity contracts funded by Separate Account C are
affected by this application.
    Separate Account E was established in 1993. Separate Account E is
registered under the Act as a unit investment trust (File No. 811-
08288) and is used to fund variable annuity contracts issued by JNL.
One variable annuity contract funded by Separate Account E is affected
by this application.
    Separate Account F was established in 1997. Separate Account F is
registered under the Act as a unit investment trust (File No. 811-
08483) and is used to fund variable annuity contracts issued by JNL.
One variable annuity contract funded by Separate Account F is affected
by this application.
    Separate Account G was established in 1996. Separate Account G is
registered under the Act as a unit investment trust (File No. 811-
07501) and is used to fund variable annuity contracts issued by JNL.
Three variable annuity contracts funded by Separate Account G are
affected by this application.
    Separate Account H was established in 1999. Separate Account H is
registered under the Act as a unit investment trust (File No. 811-
09693) and is used to fund variable annuity contracts issued by JNL.
One variable annuity contract funded by Separate

Account H is affected by this application.
    Separate Account I was established in 2000. Separate Account I is
registered under the Act as a unit investment trust (File No. 811-
10213) and is used to fund variable annuity contracts issued by JNL.
One variable annuity contract funded by Separate Account I is affected
by this application.
    Separate Account J was established in 2003. Separate Account J is
registered under the Act as a unit investment trust (File No. 811-
21498) and is used to fund variable annuity contracts issued by JNL.
One variable annuity contract funded by Separate Account J is affected
by this application.
    Separate Account K was established in 2003. Separate Account K is
registered under the Act as a unit investment trust (File No. 811-
21500) and is used to fund variable annuity contracts issued by JNL.
One variable annuity contract funded by Separate Account K is affected
by this application.
    Separate Account L was established in 2000. Separate Account L is
registered under the Act as a unit investment trust (File No. 811-
10271) and is used to fund variable universal life contracts issued by
JNL. One variable universal life contract funded by Separate Account L
is affected by this application (all eleven variable annuity contracts
and the one variable universal life contract affected by this
application are hereinafter collectively referred to as the
``Contracts'').
    3. NLVT was organized in Delaware as a statutory trust on November
2, 2005 and is registered under the Act as an open-end management
investment company.
    4. Pacific Investment Management Company, LLC (``PIMCO'') is the
investment adviser for the PIMCO Variable Insurance Trust Money Market
Portfolio (the ``Replaced Fund''). PIMCO and the Replaced Fund are not
affiliated with JNL. JNF Advisors, Inc. (``JNF Advisor'') is a recently
formed investment adviser under common control with JNL. JNF Advisor
will serve as investment adviser to the JNF Money Market Portfolio (the
``Replacement Fund''). A I M Advisors, Inc. (``AIM'') will be sub-
adviser for the Replacement Fund. AIM is not affiliated with JNL. There
are no corporate affiliations among the investment advisers.
    5. Purchase payments under the Contracts may be allocated to one or
more sub-accounts of the Separate Accounts (the ``Sub-Accounts'').
Income, gains and losses, whether or not realized, from assets
allocated to the Separate Accounts are credited to or charged against
the Separate Accounts without regard to other income, gains or losses
of JNL. The assets maintained in the Separate Accounts will not be
charged with any liabilities arising out of any other business
conducted by JNL. Nevertheless, all obligations arising under the
Contracts, including the commitment to make annuity payments or death
benefit payments, are general corporate obligations of JNL.
Accordingly, all of the assets of JNL are available to meet its
obligations under the Contracts.
    6. The Contracts permit allocations of account value to available
Sub-Accounts that invest in specific investment portfolios of
underlying registered investment companies (a ``Fund'' and,
collectively, the ``Mutual Funds''). The Mutual Funds are registered
under the Act as open-end management investment companies.
    7. The Contracts permit transfers of accumulation value from one
Sub-Account to another Sub-Account at any time subject to certain
restrictions. No sales charge applies to such a transfer of
accumulation value among Sub-Accounts. A transaction fee is imposed on
purchases or redemptions involving Sub-Accounts (``Transaction Fee Sub-
Accounts'') which invest in certain Funds.\1\ None of the Transaction
Fee Sub-Accounts hold shares of a money market fund.
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    \1\ The Monument Adviser contract (File No. 333-124048) is the
only contract covered by this application that imposes the
transaction fee.
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    8. The Contracts reserve the right, upon notice to contract owners
(the ``Contract Owners''), to substitute shares of another mutual fund
for shares of a Fund held by a Sub-Account.
    9. After the Substitution, the investment objective and policies of
the Replacement Fund will be substantially similar to the investment
objective and policies of the Replaced Fund.
    10. JNF Advisor will serve as the investment adviser for the
Replacement Fund. However, the management of the Replacement Fund will
be sub-advised by AIM. For the Replaced Fund and the Replacement Fund,
the investment objectives, principal risks, investment adviser/sub-
adviser, and fee structure are shown in the tables that follow. The
tables also show the Replaced Fund's expenses for the fiscal year
ending in 2007 and assets as of December 31, 2007.
    11. Substitution 1

------------------------------------------------------------------------
                                  Replaced fund       Replacement fund
------------------------------------------------------------------------
Fund Name...................  PIMCO Variable        JNF Money Market
                               Insurance Trust       Portfolio;
                               Money Market          subadvised by AIM
                               Portfolio.
Investment Objective........  Seeks maximum         Seeks as high a
                               current income,       level of current
                               consistent with       income as is
                               preservation of       consistent with
                               capital and daily     preservation of
                               liquidity.            capital and daily
                                                     liquidity.
Strategy....................  Invests at least 95%  Invests at least 95%
                               of its total assets   of its total assets
                               in a diversified      in a diversified
                               portfolio of money    portfolio of money
                               market securities     market securities
                               that are in the       that are in the
                               highest rating        highest rating
                               category for short-   category for short-
                               term obligations.     term obligations.
                               May invest up to 5%   May invest up to 5%
                               of its total assets   of its total assets
                               in money market       in money market
                               securities in the     securities in the
                               second highest        second highest
                               rating category.      rating category.
                               Will only invest in   Will only invest in
                               U.S. dollar           U.S. dollar
                               denominated           denominated
                               securities maturing   securities maturing
                               in 397 days or        in 397 days or
                               less. Dollar-         less. Dollar-
                               weighted average      weighted average
                               portfolio maturity    portfolio maturity
                               will not exceed 90    will not exceed 90
                               days.                 days
Principal Risks.............      Market        Market
                                  Risk.                 Risk.
                                  Interest      Interest
                                  Rate Risk.            Rates and Bond
                                                        Maturities Risk.
                                  Issuer
                                  Risk.                 Municipal Bond
                                                        Risk.
                                                U.S.
                                  Management Risk.      Government
                                                        Obligations
                                                        Risk.

                                  Inflation--Index      Inflation--Index
                                  ed Securities         Securities Risk.
                                  Risk.

                                  Foreign       Foreign
                                  (Non-U.S.)            Securities Risk.
                                  Investment Risk.
                                  Credit        Credit
                                  Risk.                 Risk.
Significant Principal Risk                       None
 Disparities?.
Adviser/Subadviser..........  PIMCO...............  JNF Advisor/ AIM.
Fund Asset Level as of 9/30/  $376,000,000 \(a)\..  $0
 07.
Advisory Fee................  0.15%...............  0.15%
Advisory Fee Schedule.......  0.15% \(b)\.........  0.15% \(b)\
Service Fee.................  0.15%...............  0
12b-1 Fee...................  0...................  0 \(c)\
Other Expenses..............  0.20%...............  0.51% \(d)\
Total Annual Operating        0.50%...............  0.66%
 Expenses.
Fee Reduction...............  N/A.................  0.16% \(e)\
Net Total Annual Expenses...  0.50%...............  0.50%
------------------------------------------------------------------------
\(a)\ As of December 31, 2007, approximately 32% of the Replaced Fund's
  assets would be transferred to the Replacement Fund.
\(b)\ The advisory fee schedule does not contain breakpoints.
\(c)\ An affirmative vote of shareholders would be required to approve a
  Rule 12b-1 plan for the Replacement Fund.
\(d)\ Other fees are based on estimated amounts for the Portfolio's
  current fiscal year.
\(e)\ JNF Advisor has contractually agreed to waive its investment
  advisory fees and/or reimburse the Money Market Portfolio to the
  extent that the ratio of expenses (excluding brokerage fees and
  commissions, acquired fund fees and expenses, borrowing costs (such as
  interest and dividend expense on securities sold short), taxes and
  extraordinary expenses) to net assets on an annual basis exceeds 0.50%
  for the Money Market Portfolio. JNF Advisor may discontinue the
  contractual limits at any time after April 30, 2009, subject to the
  condition in this Application relating to the maximum total operating
  expenses for the Replacement Fund for the 24 months following the
  Substitution.

    The Applicants believe that the Replacement Fund is an appropriate
substitute for the Replaced Fund because the investment objective and
policies of the Replacement Fund are substantially similar to those of
the Replaced Fund. Because the Substitution involves replacing one
money market fund with another money market fund, the Substitution will
not result in a reduced number or a change in the investment
characteristics of the investment options offered under the Contracts.
    12. The Substitution will take place at the Funds' relative net
asset values determined on the date of the Substitution in accordance
with Section 22 of the Act and Rule 22c-1 thereunder with no change in
the amount of any Contract Owner's account value or death benefit or in
the dollar value of his or her investment in any of the Sub-Accounts.
Accordingly, there will be no financial impact on any Contract Owner.
    13. The Substitution may be effected by having each of the Sub-
Accounts that invests in the Replaced Fund redeem its shares at the net
asset value calculated on the date of the Substitution and purchase
shares of the Replacement Fund at the net asset value calculated on the
same date.
    14. In the alternative, should the Replaced Fund determine that a
cash redemption would adversely affect its shareholders, it may redeem
the interest ``in-kind.'' In that case, the Substitution will be
effected by the Sub-Account contributing all the securities it receives
from the Replaced Fund for an amount of Replacement Fund shares equal
to the fair market value of the securities contributed. All in-kind
redemptions from the Replaced Fund of which any of the 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 Dec. 28, 1999).
    15. The Substitution will be described in a supplement to the
prospectuses for the Contracts (``Supplement'') filed with the
Commission and mailed to Contract Owners. The Supplement will provide
Contract Owners with notice of the Substitution and describe the
reasons for engaging in the Substitution. The Supplement also will
inform Contract Owners with assets allocated to a Sub-Account investing
in the Replaced Fund that the Replaced Fund will not be an available
investment option after the date of the Substitution and that Contract
Owners will have the opportunity to reallocate account value on one day
to one or more Sub-Accounts:
     Prior to the Substitution, from the Sub-Accounts investing
in the Replaced Fund, and
     For 30 days after the Substitution, from the Sub-Accounts
investing in the Replacement Fund to Sub-Accounts investing in another
Fund available under the respective Contracts,

Without diminishing the number of free transfers that may be made in a
given contract year and without the imposition of any transfer charge
or limitation, other than the transaction fee applicable to certain
Sub-Accounts and any applicable limitations in place to deter
potentially harmful excessive trading.\2\
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    \2\ There are five Transaction Fee Sub-Accounts which are
available only under one annuity contract (File No. 333-124048)
which offers 160 no-fee Sub-Accounts. The Transaction Fee Sub-
Accounts hold shares of the following Nationwide VIT Index Funds:
S&P 500; Small Cap; Mid Cap; International and Bond. These funds
have investment characteristics which are completely unlike those of
the Pimco Variable Insurance Trust Money Market Portfolio which is
being replaced in the Substitution. In light of the foregoing
Applicants do not believe there is any investor protection basis not
to allow the substituted Contract Owners to bear a charge applicable
to all other Contract Owners seeking to invest in a Transaction Fee
Sub-Account.
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    16. The prospectuses for the Contracts will contain the substance
of the information contained in the Supplement concerning the
Substitution. Each Contract Owner will be provided with a prospectus
for the Replacement Fund before the Substitution, unless the
Replacement Fund becomes effective contemporaneously with the
Substitutions, in which case a prospectus will be sent to affected
Contract Owners with the written confirmation. Within five days after
the Substitution, JNL will send affected Contract Owners written
confirmation that the Substitution has occurred and notice that
Contract Owners will have the opportunity to reallocate account value
for 30 days after the Substitution, from the Sub-Accounts investing in
the Replacement Fund to Sub-Accounts investing in another Fund
available under the respective Contracts, without diminishing the
number of free transfers that may be made in a given contract year and
without the imposition of any transfer charge or limitation, other than
the transaction fee applicable to certain Sub-Accounts and any
applicable limitations in place to deter potentially harmful excessive
trading.

    17. JNL will pay all direct and indirect expenses and transaction
costs of the Substitution, including all legal, accounting and
brokerage expenses relating to the Substitution. No costs will be borne
by Contract Owners. Affected Contract Owners will not incur any fees or
charges as a result of the Substitution, nor will their rights or the
obligations of the Applicants under the Contracts be altered in any
way. The Substitution will not cause the fees and charges under the
Contracts currently being paid by Contract Owners to be greater after
the Substitution than before the Substitution. The Substitution will
have no adverse tax consequences to Contract Owners and will in no way
alter the tax benefits to Contract Owners.
    18. Applicants believe that their request satisfies the standards
for relief pursuant to Section 26(c) of the Act, as set forth below,
because the affected Contract Owners will have:
    (1) Account values allocated to a Sub-Account invested in the
Replacement Fund with an investment objective and policies
substantially similar to the investment objective and policies of the
Replaced Fund; and
    (2) The Replacement Fund whose current total annual expenses will
be no higher than that of the Replaced Fund for its 2007 fiscal year
because, as described below, JNL has agreed to, for a period of 24
months following the Substitutions, limit the total net expenses of the
Replacement Fund to those of the Replaced Fund for the 2007 fiscal
year. At the end of the 24 month period it is possible that the
expenses of the Replacement Fund may be higher.

Applicants' and Section 17 Applicants' Legal Analysis

    1. The Applicants represent that Section 26(c) of the Act makes it
unlawful for any depositor or trustee of a registered unit investment
trust holding the security of a single issuer to substitute another
security for such security unless the Commission approves the
substitution. The Commission will approve such a substitution if the
evidence establishes that it is consistent with the protection of
investors and the purposes fairly intended by the policy and provisions
of the Act.
    2. The Applicants note that the purpose of Section 26(c) is to
protect the expectation of investors in a unit investment trust that
the unit investment trust will accumulate shares of a particular issuer
by preventing unscrutinized substitutions that might, in effect, force
shareholders dissatisfied with the substituted security to redeem their
shares, thereby possibly incurring either a loss of the sales load
deducted from initial premium payments, an additional sales load upon
reinvestment of the redemption proceeds, or both. Moreover, in the
insurance product context, a Contract Owner forced to redeem may suffer
adverse tax consequences. Section 26(c) affords this protection to
investors by preventing a depositor or trustee of a unit investment
trust that holds shares of one issuer from substituting for those
shares the shares of another issuer, unless the Commission approves
that substitution.
    3. The Applicants assert that the purposes, terms and conditions of
the Substitution are consistent with the principles and purposes of
Section 26(c) and do not entail any of the abuses that Section 26(c) is
designed to prevent. Applicants have reserved the right to make such a
substitution under the Contracts and this reserved right is disclosed
in the prospectus for the Contracts.
    4. The Applicants submit that the investment objectives and
policies of the Replacement Fund are sufficiently similar to those of
the Replaced Fund that Contract Owners will have continuity in
investment expectations. Accordingly, the Replacement Fund is an
appropriate investment vehicle for those Contract Owners who have
account values allocated to the Replaced Fund.
    5. The Applicants represent that for the 24-month period following
the date of the Substitution, JNL agrees to limit the total operating
expenses of the Replacement Fund (taking into account any expense
waiver or reimbursement) on an annualized basis to the net expense
level of the Replaced Fund for the 2007 fiscal year. In addition, for
24 months following the Substitution, JNL will not increase asset-based
fees or charges for Contracts outstanding on the day of the
Substitution. JNL represents that the Substitution and the selection of
the Replacement Fund were not motivated by any financial consideration
paid or to be paid by the Replacement Fund, its adviser. its sub-
adviser or underwriters, or their respective affiliates.\3\
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    \3\ In this regard, JNL has been receiving .30% annually in
``revenue sharing'' with respect to investments by its separate
accounts in the Replaced Fund and expects that it will receive that
same percentage amount from the Replacement Fund. With respect to
the Replaced Fund, JNL receives .15% pursuant to the Replaced Fund's
Administrative Services Plan and .15% from the Replaced Fund's
investment adviser for non-marketing services rendered to current
and prospective Contract Owners. With respect to the Replacement
Fund, JNL expects to receive from the Replacement Fund .30% for
administrative services.
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    6. The Applicants assert that the Substitution will not result in
the type of costly forced redemption that Section 26(c) was intended to
guard against and, for the following reasons, is consistent with the
protection of investors and the purposes fairly intended by the Act:
    (1) The Replacement Fund is an appropriate fund to which to move
Contract Owners with account values allocated to the Replaced Fund
because the new fund has substantially similar investment objectives
and policies.
    (2) The costs of the Substitution, including any brokerage costs,
will be borne by JNL and will not be borne by Contract Owners. No
charges will be assessed to effect the Substitution.
    (3) The Substitution will be at the net asset value of the shares
without the imposition of any transfer or similar charge and with no
change in the amount of any Contract Owner's account value.
    (4) The Substitution will not cause the fees and charges under the
Contracts currently being paid by Contract Owners to be greater after
the Substitution than before the Substitution and will result in
Contract Owners' account values being moved to a Fund with the same or
lower current total annual expenses.
    (5) All Contract Owners will be given notice of the Substitution
prior to the Substitution and will have an opportunity before, and for
30 days after, the Substitution to reallocate account value among other
available Sub-Accounts without diminishing the number of free transfers
that may be made in a given contract year and without the imposition of
any transfer charge or limitation, other than the transaction fee
applicable to certain Sub-Accounts and any applicable limitations in
place to deter potentially harmful excessive trading or limitation on
the number of transfers to or from the fixed accounts available with
the variable annuity contracts.
    (6) Within five days after the Substitution, JNL will send to its
affected Contract Owners written confirmation that the Substitution has
occurred.
    (7) The Substitution will in no way alter the insurance benefits to
Contract Owners or the contractual obligations of JNL.
    (8) The Substitution will have no adverse tax consequences to
Contract Owners and will in no way alter the tax benefits to Contract
Owners.
    (9) The Replacement Fund will not rely on any ``manager of
managers''

exemptive relief unless such action is approved by a majority of the
Replacement Fund's shareholders at a meeting whose record date is after
the Substitution has been effected.
    7. The Section 17 Applicants request an order under Section 17(b)
exempting them from the provisions of Section 17(a) to the extent
necessary to permit JNL to carry out the proposed substitution. Section
17(a)(1) of the Act, in relevant part, prohibits any affiliated person
of a registered investment company, or any affiliated person of such
person, acting as principal, from knowingly selling any security or
other property to that company. Section 17(a)(2) of the Act generally
prohibits the persons described above, acting as principal, from
knowingly purchasing any security or other property from the registered
company.
    8. JNL, as depositor of the Separate Accounts, is an affiliate of
the Separate Accounts and also JNF Advisor, which serves as investment
adviser for the affected NLVT series. As such, JNF Advisor could be
deemed to control the affected NLVT series and be an affiliate of the
affected NLVT series. Assuming, for this or other reasons, that an
affected NLVT series is an affiliate of an affiliate of JNL, to the
extent the Separate Accounts each use assets received in-kind to
purchase Replacement Fund Shares, the substitutions would involve one
or more purchases or sales of securities or property between persons
who are affiliates of affiliates. Accordingly, the Section 17
Applicants are seeking relief, to the extent necessary, from Section
17(a) for the in-kind purchases and sales of Replacement Fund Shares.
    9. Section 17(b) of the 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 Act; and
    (3) The proposed transaction is consistent with the general
purposes of the Act.
    10. The Section 17 Applicants submit that, for all the reasons set
forth in paragraphs 3-6 immediately above, the terms of the proposed
in-kind purchases of shares of the Replacement Fund by the Separate
Accounts, including the consideration to be paid and received, as
described in this Application, are reasonable and fair and do not
involve overreaching on the part of any person concerned. The Section
17 Applicants also submit that the proposed in-kind purchases by the
Separate Accounts are consistent with the policies of JNL and the
affected NLVT series. Finally, the Section 17 Applicants submit that
the proposed substitutions are consistent with the general purposes of
the Act.
    11. The Section 17 Applicants assert that, to the extent the
Separate Account's in-kind purchases of Replacement Fund shares are
deemed to involve principal transactions between entities which are
affiliates of affiliates, the procedures described below should be
sufficient to assure that the terms of the proposed transactions are
reasonable and fair to all participants. The Section 17 Applicants
maintain that the terms of the proposed in-kind purchase transactions,
including the consideration to be paid and received by each Fund
involved, are reasonable, fair and do not involve overreaching. In
addition, although not applicable, the in-kind transactions will
conform with all except one of the conditions enumerated in Rule 17a-7.
The proposed transactions will take place at relative net asset value
in conformity with the requirements of Section 22(c) of the Act and
Rule 22c-1 thereunder with no change in the amount of any Contract
Owner's account value or death benefit or in the dollar value of his or
her investment in any Sub-Account. Contract Owners will not suffer any
adverse tax consequences as a result of the substitution. The fees and
charges under the Contracts will not increase because of the
substitution. Even though they may not rely on Rule 17a-7, the Section
17 Applicants believe 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.
    12. The Section 17 Applicants will carry out the proposed in-kind
purchases in conformity with all of the conditions of Rule 17a-7 and
the Replacement Fund's procedures thereunder, except that the
consideration paid for the securities being purchased or sold may not
be entirely cash. Nevertheless, the circumstances surrounding the
proposed substitution will be such as to offer the same degree of
protection to the Replacement Fund from overreaching that Rule 17a-7
provides to them generally in connection with their purchase and sale
of securities under that Rule in the ordinary course of their business.
In particular, JNL (or any of their affiliates) cannot effect the
proposed transaction at a price that is disadvantageous to the
Replacement Fund. Although the transaction may not be entirely for
cash, it 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 the Fund valued in
accordance with the procedures disclosed in its registration statement
and as required by Rule 22c-1 under the Act. No brokerage commission,
fee, or other remuneration will be paid to any party in connection with
the proposed in-kind transaction.
    13. The Section 17 Applicants assert that the sale of shares of the
Replacement Fund for investment securities, as contemplated by the
proposed in-kind transaction, is consistent with the investment policy
and restrictions of the Replacement Fund because (1) the shares are
sold at their net asset value, and (2) the portfolio securities are of
the type and quality that the Replacement Fund would each have acquired
with the proceeds from share sales had the shares been sold for cash.
To assure that the second of these conditions is met, the sub-adviser
will examine the portfolio securities being offered to the Replacement
Fund and accept only those securities as consideration for shares that
it would have acquired for such fund in a cash transaction.
    14. The Section 17 Applicants submit that the proposed in-kind
transactions are consistent with the general purposes of the Act as
stated in the Findings and Declaration of Policy in Section 1 of the
Act. The proposed transactions do not present any of the conditions or
abuses that the Act was designed to prevent. In particular, Sections
1(b)(2) and (3) of the Act state, among other things, that the national
public interest and the interest of investors are adversely affected
``when investment companies are organized, operated, managed, or their
portfolio securities are selected in the interest of directors,
officers, investment advisers, depositors, or other affiliated persons
thereof, or in the interests of other investment companies or persons
engaged in other lines of business, rather than in the interest of all
classes of such companies' security holders; * * * when investment
companies issue securities containing inequitable or discriminatory
provisions, or fail to protect the preferences and privileges of the
holders of their outstanding

securities * * *.'' For all the reasons stated in Sections V.B. and VI
of the Application, the abuses described in Sections l(b)(2) and (3) of
the Act will not occur in connection with the proposed in-kind
purchases.
    15. The Section 17 Applicants note that the Commission has
previously granted exemptions from Section 17(a) in circumstances
substantially similar in all material respects to those presented in
this Application to applicants affiliated with an open-end management
investment company that proposed to purchase shares issued by the
company with investment securities of the type that the company might
otherwise have purchased for its portfolio. In these cases, the
Commission issued an order pursuant to Section 17(b) of the Act where
the expense of liquidating such investment securities and using the
cash proceeds to purchase shares of the investment company would have
reduced the value of investors' ultimate investment in such shares.

Conclusion

    For the reasons and upon the facts set forth above, the Applicants
and the Section 17 Applicants believe that the requested order meets
the standards set forth in Section 26(c) and Section 17(b),
respectively, and should, therefore, be granted.

    For the Commission, by the Division of Investment Management,
under delegated authority.
 Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-5100 Filed 3-13-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: December 15, 2006 (Volume 71, Number 241)]
[Rules and Regulations]
[Page 75431]
[DOCID:fr15de06-9]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2003-0090; FRL-8256-7]
RIN 2060-AN90

Final Extension of the Deferred Effective Date for 8-Hour Ozone
National Ambient Air Quality Standards for Early Action Compact Areas;
Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; Correction.

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SUMMARY: This document makes a minor correction to the preamble
language for the final rule entitled ``Final Extension of the Deferred
Effective Date for 8-hour Ozone National Ambient Air Quality Standards
for Early Action Compact Areas.'' The final rule was initially
published in the Federal Register on November 29, 2006. This correction
extends the time period for petitions for judicial review of this
action from December 29, 2006 to January 29, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Driscoll, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919)
541-1051 or by e-mail at<EMAIL_ADDRESS>or Mr. David Cole,
Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, Mail Code C304-05, Research Triangle Park, NC 27711,
phone number<PHONE_NUMBER> or by e-mail at<EMAIL_ADDRESS>
Correction

    This document corrects section IV(L) to provide that the date by
which a petition for judicial review of this action must be filed in
the United States Court of Appeals for the District for Columbia
Circuit, pursuant to section 307(b) of the Clean Air Act, is January
29, 2007.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f;
42 U.S.C. 7601(a)(1).

    Dated: December 11, 2006.
William L. Wehrum,
Acting Assistant Administrator, Office of Air and Radiation.
 [FR Doc. E6-21376 Filed 12-14-06; 8:45 am]

BILLING CODE 6560-50-P


Page 1 of 5 U. S. ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, DC 20460 OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES MEMORANDUM PC Code No. 129106 DP Barcode: D283014 SUBJECT: EFED Review of Relyea Paper Entitled "Predator induced stress makes the pesticide carbaryl more deadly to gray treefrog tadpoles (Hyla versicolor) "

TO: Anthony Britten, Chemical Review Manager Betty Shackleford, Product Manager Special Review and Reregistration Division FROM: Thomas M. Steeger, Ph. D., Senior Biologist Environmental Risk Branch IV/ EFED (7507C)

Through: Betsy Behl, Branch Chief Environmental Risk Branch IV/ EFED (7507C)

The Environmental Fate and Effects Division (EFED) has completed its review of the research article entitled "Predator induced stress makes the pesticide carbaryl more deadly to gray treefrog tadpoles (Hyla versicolor)" published in the February 2001 issue of the Proceedings of the National Academy of Science. The paper, authored by Rick Relyea and Nathan Mills (Department of Biology, University of Pittsburg) provides data demonstrating that prolonged sub acute exposure of gray treefrog tadpoles to carbaryl at 3 to 4% of the reported LC50 (2.5  20.6 mg/ L) killed 10 to 60% of the tadpoles. Furthermore, the paper claims that in the presence of "predatory cues" carbaryl was 2 to 4 times more lethal to tadpoles. The authors conclude that "under more realistic conditions of increased exposure times and predatory stress [simulated in their study], current application rates for carbaryl can potentially devastate gray treefrog populations" and that given the common mechanism of action, i. e., acetylcholinesterase inhibition, of carbaryl with other widely used pesticides (carbamates and organophosphates), the "negative impacts may be widespread in nature." While EFED concurs that biotic and abiotic effects do impact the toxicity of chemicals, we do not concur with the author's contention that their protocol is indicative of "more realistic ecological conditions" than EFED's current battery of acute and chronic toxicity tests; all of these studies are conducted under rigidly controlled laboratory conditions and are not intended to be representative of all of the variables that may affect the toxicity of a compound in the field. Furthermore, the EFED environmental fate and ecological risk assessment chapter on carbaryl submitted in support of the re registration eligibility decision does attempt to account for carbaryl's risk to amphibians and is to some extent protective to amphibians at the concentrations discussed Page 2 of 5 in the Relyea and Mills paper. However, while the authors are correct that a cumulative assessment of the effects of all chemicals acting through a similar mode of action may be more realistic, the logistics of conducting such an evaluation would require additional resources than are currently available in EFED.

The EFED environmental fate and ecological risk assessment chapter on carbaryl contains both acute and chronic amphibian toxicity data (see Attachment 1 for excerpt on amphibians from chapter). Although bullfrogs (Rana catesbeiana) are relatively inured (LD50 > 4,000 mg/ Kg) to carbaryl on an acute oral exposure basis, leopard frog tadpoles (Rana blairi) exhibited a 90% reduction in swimming activity at carbaryl concentrations in the 3.5  7.2 mg/ L range. The chapter notes that such an impairment would likely render the tadpoles [prey] vulnerable to predation provided the predators were not similarly impaired. Furthermore, the chapter notes that chronic exposure of southern leopard frogs (Rana sphenocephala) to carbaryl led to developmental and growth effects and that the long term effects of short term carbaryl exposures to amphibians during critical life stages was uncertain and could potentially lead to population level effects. Therefore, the EFED risk assessment does discuss qualitatively the potential susceptibility of amphibians following both acute and chronic exposure to carbaryl.

EFED does not typically evaluate risk to aquatic animals on a species by species or class byclass basis but rather relies on surrogate species as representatives of broad ranges of aquatic organisms. As with most screening level risk assessments conducted by EFED, the carbaryl chapter used fish toxicity data as a surrogate for amphibians. Toxicity values for freshwater fish ranged from 0.25 to 20 mg/ L; the most sensitive species, i. e., Atlantic salmon (Salmo salar) with a 96 hour LC50 value of 0.25 mg/ L, was selected for calculating risk quotient (RQ) values used in EFED's assessment of ecological risk to freshwater vertebrates. The salmon LC50 value represents roughly 10% of the lower LC50 range (2.5 to 20.6 mg/ L) for amphibians reported in Relyea and Mills paper. Given that EFED's levels of concern (LOC), i. e., the ratio of expected environmental concentrations (EEC) to the LC50 value, for endangered is 0.05, if the EEC was greater than 0.01 mg/ L, it would exceed EFED's LOC. Therefore, the ecological risk assessment for aquatic vertebrates is protective for species with 96 hour LC50 values greater than 0.01 mg/ L. (0.04% of the range reported by Relyea and Mills).

EFED concurs with the study authors that biotic and abiotic effects can impact the toxicity of pesticides and that it is difficult to account for these effects on the basis of the limited laboratory tests that are typically available for evaluating the effects of pesticides. EFED also concurs with the authors that chemicals with similar modes of action may have additive toxicities and that cummulative assessments may better account for toxicity; however, the practicality of implementing such evaluations is limited for screening level assessments.

EFED is uncertain regarding how representative the Relyea and Mills article is of field effects though or of the direct effects of carbaryl and predatory cues. The experimental design included 10 tadpoles in 10 liter polyethylene tubs containing filtered tapwater. In a 10 day static renewal study, they changed water on days 3 and 7. In 16 day static renewal exposures, they changed water every 4 days. Water quality parameters (dissolved oxygen, temperature, pH and Page 3 of 5 ammonia) were measured midway through the 16 day exposure studies. Predator treatments consisted of a larval salamander (Ambystoma maculatum) housed within a 250 ml plastic cup, covered with a fiberglass window screening, in each of the exposure tanks; controls consisted of the plastic cup alone. Nominal carbaryl concentrations ranged from 0.045 to 0.54 mg/ L; both negative and solvent (acetone) controls were run concurrently. The results demonstrate that increased ammonia concentrations were associated (P< 0.0001, range of means = 0.21  0.99 mg/ L) with carbaryl concentration, an effect attributed to the presence of dead tadpoles and excess unconsumed food. A regression analysis of survival against ammonia was significant (P < 0.001, but not particularly predictive (R 2 = 0.395). Predators had no effect on ammonia (P > 0.1) and only had small effects on oxygen and pH (9% decrease in oxygen, P < 0.0001; 5% decrease in pH, P = 0.019). Given that water quality parameters were only measured midway through the study and that both tadpoles and thus feeding rates were likely increasing throughout the study, ammonia levels may have been considerably higher toward the end of the studies. Thus it is unclear whether ammonia, pH and dissolved oxygen had an effect on the toxicity of carbaryl to tadpoles. It is noteworthy that the Relyea and Mills data showed precipitous declines in tadpole survival after 5 days of exposure.

Although it is difficult to design a study that can accurately reflect field conditions and particularly predator prey relationships, EFED is not convinced that the Relyea and Mills study could be interpreted as more representative of field conditions. Typically, prey demonstrate predator avoidance behavior in the presence of a perceived threat. In this study, tadpoles were unable to escape their perceived threat; predatory cues, i. e., seeing a predator (visual cues) may have protracted their response well beyond the chemical cues released following the salamander's consumption of tadpoles. It is questionable whether tadpoles would have remained in view of a potential predator under more realistic conditions.

In refined ecological assessments, EFED oftentimes has mesocosm study data available to assess the risk of pesticides under "field conditions". These studies, while considerably more expensive that the Relyea and Mills protocol, may represent the most accurate reflection of controlled field studies. It is interesting to note though that while mesocosm studies may yield LC50 values similar to laboratory studies, they rarely provide LC50 values showing enhanced toxicity. Test species within these studies are better able to rely on compensatory mechanism to shield themselves from the toxic effects of chemicals.

In addition, the environmental fate of pesticides is often different under field conditions. Under alkaline conditions, i. e., pH > 7, carbaryl undergoes hydrolysis with half lives ranging from 0.15 to 12 days. While Relyea and Mills accurately note carbaryl's susceptibility to hydrolysis, they fail to mention that under aearobic conditions, carbaryl is also microbially degraded in the aquatic environment with a half life of approximately 5 days. It is likely that gray treefrogs in the Relyea and Mills study were exposed to carbaryl concentrations considerably lower than nominal after 3 to 4 days. Thus the actual exposure regime may have been more representative of pulsed exposures to declining concentrations of carbaryl and increasing concentrations of ammonia. While it is clear that predators had an effect on the response of tadpoles to the exposure regime, EFED does not concur that the test results are representative of the effects of predation on carbaryl toxicity alone. Page 4 of 5 EFED concurs with Relyea and Mills that both biotic and abiotic factors impact the toxicity of pesticides and that current screening methods do not account for the full range of these effects nor do screening level assessments take into account aggregate effects from exposure to chemicals with similar modes of action. Screening level assessments attempt to identify where EFED's LOCs are exceeded and where EFED has uncertainties regarding risk. With respect to amphibians, the chapter discusses the likelihood of acute and chronic effects from current uses of carbaryl. Page 5 of 5 Attachment 1. Excerpt on Amphibians from the Environmental Fate and Ecological Risk Assessment for the Reregistration of Carbaryl Chapter According to an available supplemental study with a 50% carbaryl formulation, the LD50 for the bullfrog (Rana catesbeiana) is greater than 4,000 mg/ kg, or practically nontoxic (MRID 00160000). A single acute exposure of plains leopard frog tadpoles (Rana blairi) to carbaryl concentrations in the 3.5  7.2 mg/ L range led to a 90% reduction in swimming activity, including sprint speed and sprint distance, activity ceasing completely at 7.2 mg/ L (Bridges 1997). This reduction in activity and swimming performance may result in increased predation rates and, because activity is closely associated with feeding, may result in slowed growth that could lead to failure to complete metamorphosis. Acute exposure to low carbaryl levels may not only affect immediate survival of tadpoles but also impact critical life history functions.

On a chronic basis, carbaryl has been shown to have the potential to adversely affect amphibians. In a recent study, nearly 18% of southern leopard frog (Rana sphenocephala) tadpoles exposed to carbaryl during development exhibited some type of developmental deformity, including both visceral and limb malformations, compared to a single deformed (< 1%) control tadpole demonstrating that carbaryl exposure can result in amphibian deformities (Bridges, 2000). Although the length of the larval period was the same for all experimental groups, tadpoles exposed throughout the egg stage were smaller than their corresponding controls. Because exposure to nonpersistent chemicals may last for only a short period of time, it is important to examine the long term effects that short term exposure has on larval amphibians and the existence of any sensitive life stage. Any delay in metamorphosis or decrease in size at metamorphosis can impact demographic processes of the population, potentially leading to declines or local extinction.


[Federal Register: February 1, 2006 (Volume 71, Number 21)]
[Notices]
[Page 5387]
[DOCID:fr01fe06-158]

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SECURITIES AND EXCHANGE COMMISSION

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Filings and Information Services, Washington, DC
20549.

Extension: Rule 17Ac2-1; SEC File No. 270-95; OMB Control No. 3235-
0084.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is publishing the following summary of
collection for public comment. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
    Rule 17Ac2-1 under the Securities Exchange Act of 1934 (the
``Act'') is used by transfer agents to register with the Commission,
the Comptroller of the Currency, the Board of Governors of the Federal
Reserve System, or the Federal Deposit Insurance Corporation, and to
amend their registration.
    It is estimated that on an annual basis, the Commission will
receive approximately 100 applications for registration on Form TA-1
from transfer agents required to register as such with the Commission.
Included in this figure are amendments made to Form TA-1 as required by
Rule 17Ac2-1(c). Based upon past submissions, the staff estimates that
the average number of hours necessary to comply with the requirements
of Rule 17Ac2-1 is one and one-half hours, with a total burden of 150
hours.
    Written comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; (b) the accuracy of the agency's estimate of
the burden of the proposed collection of information; (c) ways to
enhance the quality, utility, and clarity of the information to be
collected; and (d) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted in
writing within 60 days of this publication.
    Direct your written comments to R. Corey Booth, Director/Chief
Information Officer, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549.

    Dated: January 25, 2006.
Nancy M. Morris,
Secretary.
[FR Doc. E6-1320 Filed 1-31-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 77, Number 180 (Monday, September 17, 2012)]
[Rules and Regulations]
[Pages 57024-57026]
[FR Doc No: 2012-22775]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2012-0179]
RIN 1625-AA09

Drawbridge Operation Regulation; Tombigbee River, AL

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is adding a regulation to govern the Meridian
and Bigbee Railroad (MNBR) vertical lift span bridge across the
Tombigbee River at Naheola, Marengo and Choctaw Counties, Alabama. The
bridge currently remains in the open-to-navigation position and only
lowers for the passage of trains. This rule codifies the current
schedule as a special operating regulation.

DATES: This rule is effective October 17, 2012.

ADDRESSES: Comments and related materials received from the public, as
well as documents mentioned in this preamble as being available in the
docket, are part of docket USCG-2012-0179 and are available online by
going to http://www.regulations.gov, inserting USCG-2012-0179 in the
``Keyword'' box, and then clicking ``Search.'' This material is also
available for inspection or copying at the Docket Management Facility
(M-30), U.S. Department of Transportation, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between
9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this final
rule, call or email David Frank, Bridge Administration Branch;
telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Sec.  Section Symbol
U.S.C. United States Code

A. Regulatory History and Information

    On May 1, 2012, we published a notice of proposed rulemaking (NPRM)
entitled ``Drawbridge Operation Regulation; Tombigbee River, AL'' in
the Federal Register (77 FR 25655). We received no comments on the
proposed rule. No public meeting was requested, and none was held.

B. Basis and Purpose

    The MNBR vertical lift span bridge crosses the Tombigbee River at
mile 128.6 (Black Warrior Tombigbee Waterway mile 173.6), Naheola,
Marengo and Choctaw Counties, Alabama. The bridge is currently
maintained in the open-to-navigation position, closing only for the
passage of rail traffic. The bridge has a vertical clearance of 12.2
feet above ordinary high water (OHW), elevation 64.5 feet, in the
closed-to-navigation position and 55 feet above OHW in the open-to-
navigation position. Many of the vessels using the waterway transit
under a fixed span of the bridge at periods of lower water due to the
difficulty of transiting the navigation span, which only has a
horizontal clearance of 150 feet between piers.
    Due to the limited number of trains using the rail line in this
area, maintaining the bridge in the fully open-to-navigation position
and only lowering the bridge for rail traffic is the preferred
operating schedule. Because this operating schedule has been in place
for over ten years, and is understood and accepted by local

traffic, the bridge owner requested that the Coast Guard publish the
current operating schedule. This operating schedule allows vessels to
transit the waterway normally while permitting railroad personnel to
lower the bridge for the passage of train traffic after ensuring that
no vessels are approaching the bridge.
    Maintaining the bridge untended and in the open-to-navigation
position also eliminates the need for a bridge tender. This rule
codifies the current bridge operating practice and brings it into
compliance with 33 CFR part 117.41(b)(1).

C. Discussion of Comments, Changes and the Final Rule

    As part of the NPRM process, a 60-day comment period was provided
to allow for comments regarding the proposed change. No comments were
received and no changes were made to the rule as proposed.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Order 12866 or under
section 1 of Executive Order 13563. The Office of Management and Budget
has not reviewed it under those Orders.
    This rule is not a significant regulatory action because it
codifies the current operating schedule for the MNBR bridge which is
already understood, known and accepted by the local bridge and waterway
users. Very few vessels will be impacted as the bridge remains open at
all times except to allow rail traffic to pass trains two times a day,
five days a week.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard received no comments from the Small Business
Administration on this rule. The Coast Guard certifies under 5 U.S.C.
605(b) that this rule will not have a significant economic impact on a
substantial number of small entities.
    This rule will affect the following entities, some of which might
be small entities: The owners or operators of vessels wishing to
transit the Tombigbee River above mile 128.6 with vessel air drafts
that would require the bridge to be open to navigation for them to pass
safely through the bridge site. This action will not have a significant
economic impact on a substantial number of small entities because the
bridge remains open at all times except to allow rail traffic to pass
two times a day, five days a week.
    This action will not have a significant economic impact on a
substantial number of small entities because it only codifies the
existing operation of the draw and there have been no documented
economic impacts to small entities with regards to the present
operation of the bridge.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT,
above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the For Further
Information Contact section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that might
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,

because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

12. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guides the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded, under figure 2-1,
paragraph (32)(e), of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an
environmental analysis checklist and a categorical exclusion
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland
Security Delegation No. 0170.1.

0
2. Section 117.118 is added to read as follows:

Sec.  117.118  Tombigbee River.

    The draw of the Meridian and Bigbee Railroad (MNBR) vertical lift
span bridge across the Tombigbee River, mile 128.6 (Black Warrior
Tombigbee (BWT) Waterway mile 173.6), at Naheola, shall operate as
follows:
    (a) The draw shall be maintained in the fully open-to-navigation
position for vessels at all times, except during periods when it is
closed for the passage of rail traffic.
    (b) When a train approaches the bridge, it will stop and a
crewmember from the train will observe the waterway for approaching
vessels. If vessels are observed approaching the bridge, they will be
allowed to pass prior to lowering the bridge. The crewmember will then
announce via radiotelephone on VHF-FM channel 16 that the bridge is
preparing to be lowered. If, after two minutes, no response has been
received, the crewmember will initiate the lowering sequence.
    (c) After the train has completely passed over the bridge, the
crewmember will initiate the raising sequence. When the bridge is in
the fully open-to-navigation position, the crewmember will announce via
radiotelephone on VHF-FM channel 16 that the bridge is in the fully
open-to-navigation position.
    (d) To request openings of the bridge when the lift span is in the
closed-to-navigation position, mariners may contact the MNBR via VHF-FM
channel 16 or by telephone at<PHONE_NUMBER>.

    Dated: August 25, 2012.
Roy A. Nash,
Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District.
[FR Doc. 2012-22775 Filed 9-14-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 82, Number 58 (Tuesday, March 28, 2017)]
[Notices]
[Page 15368]
[FR Doc No: 2017-06089]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2017-0191]

 Certificate of Alternate Compliance for the Gladding-Hearn Hulls
418 and 419

AGENCY: Coast Guard, DHS.

ACTION: Notice.

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SUMMARY: The Coast Guard announces that a Certificate of Alternate
Compliance (COAC) was issued for the GLADDING-HEARN HULLS 418 AND 419.
We are issuing this notice because its publication is required by
statute.

DATES: The Certificate of Alternate Compliance was issued on March 14,
2017.

FOR FURTHER INFORMATION CONTACT: For information or questions about
this notice call or email Mr. Kevin Miller, First District Towing
Vessel/Barge Safety Specialist, U.S. Coast Guard; telephone (617) 223-
8272, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The United States is signatory to the
International Maritime Organization's International Regulations for
Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The
special construction or purpose of some vessels makes them unable to
comply with the light, shape, and sound signal provisions of the 72
COLREGS. Under statutory law \1\ and Coast Guard regulation,\2\ a
vessel may instead meet alternative requirements and the vessel's
owner, builder, operator, or agent may apply for a COAC. For vessels of
special construction, the cognizant Coast Guard District Office
determines whether the vessel for which the COAC is sought complies as
closely as possible with the 72 COLREGS, and decides whether to issue
the COAC. Once issued, a COAC remains valid until information supplied
in the COAC application or the COAC terms become inapplicable to the
vessel. Under the governing statute \3\ and regulation,\4\ the Coast
Guard must publish notice of this action.
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    \1\ 33 U.S.C. 1605(c)
    \2\ 33 CFR. 81.3
    \3\ 33 U.S.C. 1605(c)
    \4\ 33 CFR 81.18
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    The Coast Guard encourages the use of two masthead lights on power-
driven vessels less than 50 meters in length in accordance with ``The
Boating Safety Circular'' 75, June 1993, page 15. The Commandant, U.S.
Coast Guard, certifies that the Gladding-Hearn Hulls 418 and 419 are
vessels of special construction or purpose, and that, with respect to
the position of the two masthead lights, it is not possible to comply
fully with the requirements of the provisions enumerated in the 72
COLREGS, without interfering with the normal operation of the vessel.
This certificate authorizes the placement of these vessels' two
masthead lights to not meet the minimum horizontal separation
requirements specified in Annex I of 72 COLREGS. All other navigational
lighting dimensions will remain in compliance with 72 COLREGS,
including vertical separation required for masthead lights and
sidelights.
    This notice is issued under authority of 33 U.S.C. 1605(c) and 33
CFR 81.

    Dated: March 14, 2017.
B.L. Black,
Chief, Prevention Department, First District, U.S. Coast Guard.
[FR Doc. 2017-06089 Filed 3-27-17; 8:45 am]
 BILLING CODE 9110-04-P