Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52707 

1Applicants also request relief with respect to 

current or future series of the Companies and any 

other registered open-end management investment 

companies and their series that: (a) Are advised by 

the Advisor or any entity controlling, controlled by 

or under common control with the Advisor; (b) use 

the management structure described in the 

application; and (c) comply with the terms and 

conditions of the application (‘‘Future Funds,’’

included in the term ‘‘Funds’’). Any existing entity 

that currently intends to rely on the requested relief 

is named as an Applicant. If a Fund has the name 

of any Subadvisor (as defined below) in the Fund’s 

name, the Fund’s name will be preceded by the 

name of the Advisor (such as ‘‘Phoenix,’’ which is 

the present identifying name the Advisor uses in 

conducting its business) or the name of the entity 

controlling, controlled by, or under common 

control with the Advisor that serves as the primary 

adviser to the Fund. 

reasonably provides for completion of 

the transition within 3 years of the date 

specified by the licensee in their letter 

of intent to implement 10 CFR 50.48(c) 

or other period granted by NRC; 

(2) It was corrected or will be 

corrected as a result of completing the 

transition to 10 CFR 50.48(c). Also, 

immediate corrective action and/or 

compensatory measures are taken 

within a reasonable time commensurate 

with the risk significance of the issue 

following identification (this action 

should involve expanding the initiative, 

as necessary, to identify other issues 

caused by similar root causes); 

(3) It was not likely to have been 

previously identified by routine licensee 

efforts such as normal surveillance or 

quality assurance (QA) activities; and 

(4) It was not willful. 

The NRC may take enforcement action 

when these conditions are not met or 

when a violation that is associated with 

a finding of high safety significance is 

identified. 

While the NRC may exercise 

discretion for violations meeting the 

required criteria where the licensee 

failed to make a required report to the 

NRC, a separate enforcement action will 

normally be issued for the licensee’s 

failure to make a required report. 

B. Existing Identified Noncompliances 

In addition, licensees may have 

existing identified noncompliances that 

could reasonably be corrected under 10 

CFR 50.48(c). For these 

noncompliances, the NRC is providing 

enforcement discretion for the 

implementation of corrective actions 

until the licensee has transitioned to 10 

CFR 50.48(c) provided that the 

noncompliances meet all of the 

following criteria: 

(1) The licensee has entered the 

noncompliance into their corrective 

action program and implemented 

appropriate compensatory measures; 

(2) The noncompliance is not 

associated with a finding that the 

Reactor Oversight Process Significance 

Determination Process would evaluate 

as Red, or it would not be categorized 

at Severity Level I; 

(3) It was not willful; and 

(4) The licensee submits a letter of 

intent by December 31, 2005, stating its 

intent to transition to 10 CFR 50.48(c). 

After December 31, 2005, as 

addressed in (4) above, this enforcement 

discretion for implementation of 

corrective actions for existing identified 

noncompliances will not be available 

and the requirements of 10 CFR 50.48(b) 

(and any other requirements in fire 

protection license conditions) will be 

enforced in accordance with normal 

enforcement practices. However, 

licensees that submit letters of intent to 

transition to 10 CFR 50.48(c) with 

existing noncompliances will have the 

option to implement corrective actions 

in accordance with the new 

performance-based regulation. All other 

elements of the assessment and 

enforcement process will be exercised 

even if the licensee submits its letter of 

intent before the NRC issues its 

enforcement action for existing 

noncompliances. 

Dated at Rockville, Maryland, this 4th day 

of September, 2008. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E8–20972 Filed 9–9–08; 8:45 am] 

BILLING CODE 7590–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28375; 812–13526] 

Phoenix Equity Trust, et al.; Notice of 

Application 

September 3, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application under 

section 6(c) of the Investment Company 

Act of 1940 (the ‘‘Act’’) for an 

exemption from section 15(a) of the Act 

and rule 18f–2 under the Act. 

SUMMARY OF APPLICATION: The requested 

order would permit certain registered 

open-end management investment 

companies to enter into and materially 

amend subadvisory agreements without 

shareholder approval. 

APPLICANTS: Phoenix Equity Trust, 

Phoenix Insight Funds Trust, Phoenix 

Institutional Mutual Funds, Phoenix 

Opportunities Trust (the ‘‘Companies’’) 

and Phoenix Investment Counsel, Inc. 

(the ‘‘Advisor’’) (collectively, with the 

Companies, ‘‘Applicants’’). 

FILING DATES: The application was filed 

on April 23, 2008, and amended on 

September 2, 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 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on September 26, 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 

reasons for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, Commission, 100 

F Street, NE., Washington, DC 20549–

1090. Applicants, One American Row, 

P.O. Box 5056, Hartford, CT 06102–

5056. 

FOR FURTHER INFORMATION CONTACT: 

Barbara T. Heussler, Senior Counsel at 

(202) 551–6990, or Mary Kay Frech, 

Branch Chief, at (202) 551–6821 

(Division of Investment Management, 

Office of Investment Company 

Regulation). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee from the 

Commission’s Public Reference Room, 

100 F Street, NE., Washington, DC 

20549–1520 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The Companies are open-end 

management investment companies 

registered under the Act. The 

Companies, except Phoenix Insight 

Funds Trust, are organized as statutory 

trusts under Delaware law. Phoenix 

Insight Funds Trust is organized as a 

Massachusetts business trust under 

Massachusetts law. The Companies 

presently are comprised of fifty-three 

separate series (each, a ‘‘Fund’’ and 

collectively, the ‘‘Funds’’) each of which 

has its own investment objectives, 

policies, and restrictions.1

2. The Advisor, a Massachusetts 

corporation, is registered under the 

Investment Advisers Act of 1940 

(‘‘Advisers Act’’) and serves as 

investment adviser to the Funds that use 


pwalker on PROD1PC71 with NOTICES
52708 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

2Under a prior order, the Commission granted 

relief to certain applicants, including Phoenix 

Variable Advisors, Inc. (‘‘PVA’’), from the 

provisions of section 15(a) of the Act and rule 18f–

2 under the Act. The Phoenix Edge Series Fund and 

Phoenix Variable Advisors, Inc., Investment 

Company Act Release Nos. 25655 (July 10, 2002) 

(notice) and 25693 (August 6, 2002) (order) (‘‘Prior 

Order’’). While Applicants are not named as 

applicants to the Prior Order, Applicants rely on the 

Prior Order due to a currently existing affiliation 

with the applicants to the Prior Order. However, a 

reorganization transaction expected to close in 

September, 2008 will result in the Advisor no 

longer being controlling, controlled by, or under 

common control with PVA, thus making the Prior 

Order inapplicable to Applicants and necessitating 

the current request for relief. 

the management structure described in 

the application.2

3. The Companies, on behalf of the 

Funds, have entered into investment 

advisory agreements with the Advisor 

(the ‘‘Advisory Agreements’’). Each 

Advisory Agreement requires approval 

by shareholders of the applicable Fund 

and by the Fund’s board of trustees (the 

‘‘Board’’), including a majority of the 

trustees who are not ‘‘interested 

persons,’’ as defined in section 2(a)(19) 

of the Act, of the Company or the 

Advisor (the ‘‘Independent Trustees’’). 

Under the Advisory Agreements, the 

Advisor has primary responsibility for 

management of the Funds, subject to 

general oversight by the Board. The 

Advisor also evaluates, selects, and 

recommends to the Boards investment 

management organizations 

(‘‘Subadvisors’’) who have discretionary 

authority to invest all or a portion of the 

assets of a particular Fund pursuant to 

a separate subadvisory agreement with 

the Advisor (‘‘Subadvisory 

Agreement’’). Each Subadvisor is, and 

any future Subadvisor will be, registered 

under the Advisers Act. The Advisor 

receives management fees at annual 

rates based on a percentage of the 

applicable Fund’s average daily net 

assets. Each Subadvisor will be paid 

subadvisory fees by the Advisor out of 

its fees from the Funds at rates 

negotiated with the Subadvisor by the 

Advisor and approved by the Boards. 

4. The Advisor monitors and 

evaluates the Subadvisors and 

recommends to the Boards whether 

Subadvisory Agreements should be 

renewed, modified, or terminated. 

Advisor assesses the continued ability 

of the Subadvisor to meet the Fund’s 

investment objective. The Advisor 

monitors possible replacement 

Subadvisors for a Fund so that any 

transition can be recommended to the 

Board and, if approved, can be effected 

on a timely basis should a Subadvisor 

change be warranted. 

5. Applicants request an order to 

permit the Advisor, subject to Board 

approval, to enter into and materially 

amend Subadvisory Agreements 

without shareholder approval. The 

applicants will not enter into a 

Subadvisory Agreement with any 

Subadvisor that is an affiliated person, 

as defined in section 2(a)(3) of the Act, 

of the Companies or the Advisor, other 

than by reason of serving as Subadvisor 

to one or more Funds (‘‘Affiliated 

Subadvisor’’), unless that agreement, 

including the compensation to be paid 

thereunder, has been separately 

approved by the shareholders of each 

Fund for which the Affiliated 

Subadvisor will act as an investment 

adviser. 

Applicants’ Legal Analysis 

1. Section 15(a) of the Act provides, 

in relevant part, that it is unlawful for 

any person to act as an investment 

adviser to a registered investment 

company except pursuant to a written 

contract that has been approved by the 

vote of a majority of the company’s 

outstanding voting securities. Rule 18f–

2 under the Act provides that each 

series or class of stock in a series 

company affected by a matter must 

approve such matter if the Act requires 

shareholder approval. 

2. Section 6(c) of the Act provides that 

the Commission may exempt any 

person, security, or transaction or any 

class or classes of persons, securities, or 

transactions from any provision of the 

Act, or from any rule thereunder, if and 

to the extent that such exemption is 

necessary or appropriate in the public 

interest and consistent with the 

protection of investors and the purposes 

fairly intended by the policies and 

provisions of the Act. Applicants 

believe that their requested relief meets 

this standard. 

3. Applicants state that the Funds’

shareholders rely on the Advisor to 

select the Subadvisors best suited to 

achieve a Fund’s investment objectives. 

Applicants assert that, from the 

perspective of the investor, the role of 

the Subadvisors is comparable to that of 

individual portfolio managers employed 

by traditional investment advisory 

firms. Applicants contend that requiring 

shareholder approval of Subadvisory 

Agreements would impose costs and 

unnecessary delays on the Funds and 

may preclude the Advisor from acting 

promptly in a manner considered 

advisable by the Board. Applicants also 

note that the Advisory Agreement will 

remain subject to the shareholder 

approval requirements in section 15(a) 

of the Act and rule 18f–2 under the Act. 

Applicants’ Conditions 

Applicants agree that any order 

granting the requested relief will be 

subject to the following conditions: 

1. The Advisor will not enter into a 

Subadvisory Agreement with any 

Affiliated Subadvisor without that 

agreement, including the compensation 

to be paid thereunder, being approved 

by the shareholders of the applicable 

Fund. 

2. At all times, at least a majority of 

the Boards will be Independent 

Trustees, and the nomination of new or 

additional Independent Trustees will be 

at the discretion of the then-existing 

Independent Trustees. 

3. When a Subadvisor change is 

proposed for a Fund with an Affiliated 

Subadvisor, the Fund’s Board, including 

a majority of the Independent Trustees, 

will make a separate finding, reflected 

in the Board minutes, that the change is 

in the best interests of the Fund and its 

shareholders and does not involve a 

conflict of interest from which the 

Advisor or the Affiliated Subadvisor 

derives an inappropriate advantage. 

4. Before a Fund may rely on the 

requested order, the operation of the 

Fund in the manner described in the 

application will be approved by a 

majority of the Fund’s outstanding 

voting securities, as defined in the Act, 

or, in the case of a Fund whose public 

shareholders purchase shares on the 

basis of a prospectus containing the 

disclosure contemplated by condition 6 

below, by the initial shareholder(s) 

before offering shares of that Fund to the 

public. 

5. The Advisor will provide general 

management services to the Companies 

and their Funds, including overall 

supervisory responsibility for the 

general management and investment of 

each Fund’s assets, and, subject to 

review and approval by the Boards, will 

(i) set the Fund’s overall investment 

strategies; (ii) evaluate, select and 

recommend Subadvisors to manage all 

or part of a Fund’s assets; (iii) allocate 

and, when appropriate, reallocate a 

Fund’s assets among multiple 

Subadvisors; (iv) monitor and evaluate 

the performance of Subadvisors; and (v) 

implement procedures reasonably 

designed to ensure that the Subadvisors 

comply with the relevant Fund’s 

investment objective, policies and 

restrictions. 

6. Each Fund relying on the requested 

order will disclose in its prospectus the 

existence, substance, and effect of any 

order granted pursuant to the 

application. In addition, each Fund will 

hold itself out to the public as 

employing the management structure 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52709 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78s(b)(3)(A)(iii). 

4 17 CFR 240.19b–4(f)(6). 

5See Securities and Exchange Act Release No. 

34632 (September 2, 1994), 59 FR 46999 (September 

13, 1994) (SR–CBOE–94–10). 

6See Securities Exchange Act Release No. 34–

55970, 72 FR 36348 (July 3, 2007) (File No. S7–21–

06). 

described in the application. The 

prospectus will prominently disclose 

that the Advisor has ultimate 

responsibility (subject to oversight by 

the Boards) to oversee the Subadvisors 

and recommend their hiring, 

termination and replacement. 

7. No trustee or officer of a Company 

or officer or director of the Advisor will 

own directly or indirectly (other than 

through a pooled investment vehicle 

that is not controlled by that trustee, 

director or officer) any interest in a 

Subadvisor except for (i) ownership of 

interests in the Advisor or any entity 

that controls, is controlled by, or is 

under common control with the 

Advisor; or (ii) ownership of less than 

1% of the outstanding securities of any 

class of equity or debt of a publiclytraded company that is either a 

Subadvisor or an entity that controls, is 

controlled by or is under common 

control with a Subadvisor. 

8. Within 90 days of the hiring of any 

new Subadvisor, shareholders of the 

Fund will be furnished all information 

about the new Subadvisor that would be 

included in a proxy statement, 

including any change in shareholder 

disclosure caused by the addition of the 

new Subadvisor. To meet this condition, 

the Funds will provide shareholders 

with an information statement meeting 

the requirements of Regulation 14C, 

Schedule 14C, and Item 22 of Schedule 

14A under the Securities Exchange Act 

of 1934. 

9. The requested order will expire on 

the effective date of rule 15a–5 under 

the Act, if adopted. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–20960 Filed 9–9–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meeting 

Notice is hereby given, pursuant to 

the provisions of the Government in the 

Sunshine Act, Public Law 94–409, that 

the Securities and Exchange 

Commission will hold a Closed Meeting 

on Thursday, September 11, 2008 at 1 

p.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

certified that, in his opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) 

and 17 CFR 200.402(a)(3), (5), (7), 9(ii) 

and (10), permit consideration of the 

scheduled matters at the Closed 

Meeting. 

Commissioner Casey, as duty officer, 

voted to consider the items listed for the 

Closed Meeting in closed session. 

The subject matter of the Closed 

Meeting scheduled for Thursday, 

September 11, 2008 will be: 

Formal orders of investigation; 

Institution and settlement of injunctive 

actions; 

Institution and settlement of 

administrative proceedings of an 

enforcement nature; 

Amicus consideration; and 

Other matters relating to enforcement 

proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting items. 

For further information and to 

ascertain what, if any, matters have been 

added, deleted or postponed, please 

contact: 

The Office of the Secretary at (202) 

551–5400. 

Dated: September 4, 2008. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–20957 Filed 9–9–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58455; File No. SR–CBOE–

2008–94] 

Self-Regulatory Organizations; 

Chicago Board Options Exchange, 

Incorporated; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Delete Obsolete CBOE 

Rule 15.10 

September 3, 2008. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on August 

29, 2008, the Chicago Board Options 

Exchange, Incorporated (‘‘Exchange’’ or 

‘‘CBOE’’) filed with the Securities and 

Exchange Commission (the 

‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

substantially prepared by the Exchange. 

The Exchange filed the proposal as a 

‘‘non-controversial’’ proposed rule 

change pursuant to Section 

19(b)(3)(A)(iii) of the Act 3 and Rule 

19b–4(f)(6) thereunder.4 The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to delete 

obsolete Rule 15.10, Reporting 

Requirements Applicable to Short Sales 

in Nasdaq National Market. The text of 

the rule proposal is available on the 

Exchange’s Web site (http:// 

www.cboe.org/legal), at the Exchange’s 

Office of the Secretary and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of 

and basis for the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

CBOE Rule 15.10, Reporting 

Requirements Applicable to Short Sales 

in Nasdaq National Market, was 

adopted several years ago to coordinate 

CBOE’s rules with the NASD’s Rules of 

Fair Practice relating to a bid test 

applicable to short sales in National 

Market (‘‘NM’’) securities traded 

through Nasdaq.5 In 2007, the 

Commission adopted an amendment to 

eliminate Rule 10a–1 and to add Rule 

201 of Regulation SHO under the Act, 

to provide that no price test, including 

any price test of any self-regulatory 

organization (‘‘SRO’’), shall apply to 

short sales in any security.6 Rule 201 


pwalker on PROD1PC71 with NOTICES