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Office of Personnel Management.
Final rule.
The Office of Personnel Management is issuing a final rule to create a Federal Wage System appropriated fund optional survey job of Electronic Industrial Controls Mechanic, WG-11. The new title and grade level will best reflect the occupational title and the level of work used by private industry.
Effective Date: This regulation is effective on June 14, 2004.
Madeline Gonzalez at (202) 606-2838; FAX at (202) 606-4264; or e-mail at
On August 12, 2003, the Office of Personnel Management (OPM) published a proposed rule (68 FR 47877) to change the title and grade level of the Federal Wage System (FWS) appropriated fund optional survey job, Industrial Electronic Controls Repairer. Since the new title and grade level closely reflect the occupational title and level of work used by private industry, the Department of Defense may be able to collect more private sector wage data for the occupation. The proposed rule had a 30-day comment period, during which we received no comments.
The Federal Prevailing Rate Advisory Committee (FPRAC) established a Survey Job Work Group (SJWG) to review FWS survey job descriptions. The SJWG recommended that OPM change the title of the optional survey job, “Industrial Electronic Controls Repairer” to “Electronic Industrial Controls Mechanic” because the new title conforms to the title of the FWS job grading standard for the occupation and corresponds to the title typically used by private industry. The SJWG also recommended that OPM change the grade level from WG-10 to WG-11 because the new grade level better reflects the level of work currently done by Federal blue-collar employees. FPRAC agreed with its working group and recommended that OPM make these changes.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
I certify that this regulation would not have a significant economic impact on a substantial number of small entities because it would affect only Federal agencies and employees.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Office of Personnel Management.
Final rule.
The Office of Personnel Management is issuing final regulations to implement a provision of the National Defense Authorization Act for Fiscal Year 2004, which modified the hourly overtime pay cap for certain Federal employees who are exempt from the Fair Labor Standards Act of 1938, as amended.
May 13, 2004.
Vicki Draper by telephone at (202) 606-2858; by FAX at (202) 606-0824; or by e-mail at
The Office of Personnel Management (OPM) is issuing final regulations to implement a new hourly overtime pay provision established by section 1121 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136, November 24, 2003). Section 1121 amended 5 U.S.C. 5542(a)(2), which establishes an hourly overtime pay cap for certain employees who are exempt from the Fair Labor Standards Act of 1938, as amended (FLSA). Prior to the amendments made by section 1121, an employee whose rate of basic pay exceeded the minimum rate for GS-10 (including any applicable special rate of pay for law enforcement officers or special pay adjustment for law enforcement officers under section 403 or 404 of the Federal Employees Pay Comparability Act of 1990, respectively; a locality-based comparability payment under 5 U.S.C. 5304; and any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law), received an overtime hourly rate of pay equal to one and one-half times the applicable minimum hourly rate of basic pay for GS-10. OPM's regulations implement section 1121 by establishing the hourly overtime pay cap for an employee whose rate of basic pay exceeds the applicable minimum rate for GS-10 at the higher of two rates: (1) One and one-
Pursuant to section 553(b)(3)(B) of title 5 of the United States Code, I find that good cause exists for waiving the general notice of proposed rule making. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. These regulations implement a provision of Public Law 108-136, which became effective on November 24, 2003. The waiver of the requirements for proposed rulemaking and a delay in the effective date is necessary to ensure timely implementation of the law as intended by Congress.
The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.
Administrative practice and procedure, Government employees, Wages.
5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections 407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.
(b) For each employee whose rate of basic pay exceeds the minimum rate for GS-10 (as determined under paragraph (a) of this section), the overtime hourly rate is equal to the greater of—(i) one and one-half times the applicable minimum hourly rate of basic pay for GS-10 (as determined under paragraph (a) of this section); or (ii) the employee's hourly rate of basic pay, except as provided in 5 U.S.C. 5542(a)(3) and (5).
Grain Inspection, Packers and Stockyards Administration, USDA.
Final rule.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) is changing the fee schedule for official inspection and weighing services performed under the authority of the United States Grain Standards Act (USGSA), as amended. The USGSA provides the authority to charge and collect reasonable fees to cover the cost of performing official services. These fees also cover the costs associated with administrative and supervisory activities related to official services.
After a review of the financial status of GIPSA, including a comparison of the costs and revenues associated with official services, and administrative and supervisory activities; GIPSA is changing the fee schedule. These changes include eliminating provisions for the 3-month and 6-month contracts; increasing the 1-year contract hourly rate by approximately 20 percent and the non-contract hourly rate by 47 percent; increasing hourly rates for services not performed at an applicant's facility by approximately 11.5 percent; increasing unit fees for additional tests provided by GIPSA; eliminating the 6-level administrative tonnage fee and replacing it with regional administrative tonnage fees; eliminating the unit fee charged to delegated States for export ships and replacing it with a tonnage fee; increasing hourly fees for special weighing services by approximately 30 percent above the non-contract hourly rate; and establishing a $500 usage fee per facility when the GIPSA test car is used to test track scales.
These changes are needed to replenish the retained earnings accounts and to maintain a 3-month operating reserve. Further, maintaining GIPSA's financial stability will assure continued inspection and weighing services to the grain industry which will further facilitate the sound and orderly marketing of grain in domestic and export markets.
June 14, 2004.
David Orr, Director, Field Management Division, e-mail address:
The USGSA (7 U.S.C. 71
GIPSA adopted its current fee structure (61 FR 43301) effective October 1, 1996, for services provided by GIPSA employees. This fee structure change was needed because advances in technology had allowed exporters to improve operational efficiencies, which, in turn, had reduced the number of GIPSA personnel required to service certain facilities. The fee structure was changed from primarily using hourly fees to recover costs to a method that uses a mix of hourly and unit fees for its inspection and weighing services. Direct service costs are recovered through hourly fees charged for employees providing the inspection and weighing services. Administrative costs are recovered by a tonnage fee applied
Since implementing the fees in 1996, GIPSA has adjusted hourly fees to correspond with annual Federal pay increases. This action is necessary since employee payroll costs account for approximately 84 percent of GIPSA's total operating budget. The current USGSA fees were published in the
GIPSA regularly reviews its programs to determine if the fees are adequate. Since implementing the fees in 1996, GIPSA has only experienced one year where the revenues exceeded the costs. Annual losses have been between $1 million to $1.7 million since 1996 except for the one positive year GIPSA revenue exceeded the costs by $88,000.
GIPSA recognizes the need to reduce inspection and weighing costs as much as possible before increasing fees. Therefore, GIPSA has taken action through the years to minimize payroll costs. These actions include utilizing employee buyouts to remove high-salaried, senior employees from the active employment list; taking advantage of employee attrition to reduce total staff by not hiring to fill vacant positions; hiring and scheduling more part-time and intermittent employees to better manage staff costs during fluctuating work periods; and reducing the amount of paid overtime via creative scheduling processes. Although GIPSA has observed a 14 percent reduction in paid hours and has reduced overtime pay by 2 percent, this is not enough to avoid continued financial losses.
GIPSA completed a review of the grain inspection and weighing programs and determined it was necessary to propose a change to the fees in order to replenish the retained earnings accounts and to maintain a 3-month operating reserve. On November 19, 2003, GIPSA proposed in the
To minimize the impact of the proposed action, GIPSA established fee rates that collect sufficient revenue to immediately cover operating expenses, while striving to create a 3-month operating reserve by fiscal year (FY) 2010. These fees were designed to collect sufficient annual revenue through FY 2007 to achieve an average estimated positive $1,000,000 balance annually based on an inspection volume of 80 million metric tons (MMT) per year. The cost of living projections used in calculating future salary and benefits out to FY 2007 were supplied by OMB as set forth in their
GIPSA proposed changes to the fee schedule to collect fees to recover the cost of services and to recover the administrative and supervisory costs related to these services. The proposed changes included (1) eliminating provisions for the 3-month and 6-month contracts; (2) increasing the 1-year contract hourly rate by approximately 20 percent and the non-contract hourly rate by 47 percent; (3) increasing hourly rates for services not performed at an applicant's facility by approximately 11.5 percent; (4) increasing unit fees for additional tests provided by GIPSA; (5) eliminating the 6-level administrative tonnage fee and replacing it with regional administrative tonnage fees; (6) eliminating the unit fee charged to delegated States for export ships and replacing it with a tonnage fee; (7) increasing hourly fees for special weighing services by approximately 30 percent above the non-contract hourly rate; and (8) establishing a $500 usage fee per facility when the GIPSA test car is used to test track scales.
When GIPSA established the hourly rates in 1996, certain assumptions were made to establish those rates. Those assumptions included the historic volume of grain moving through the export facilities, the number of hours needed to load that volume of grain, and the anticipated non-revenue producing time experienced by our employees. Hourly fees, both contract rate and non-contract rate, were established based on these assumptions. These assumptions, however, have not held true over the years due to the changes in grain marketing.
Grain marketing strategies and shortfalls in expected export volume have also had a negative effect on GIPSA's revenue. Since 1996, some grain exporting facilities have automated their material handling systems which requires fewer inspection and weighing personnel to provide service and makes the elevator more efficient. This improved efficiency has triggered a shift in locations where grain is loaded.
Since grain marketing strategies have shifted the movement of grain at the export market, GIPSA needed to re-evaluate the hourly rates charged at these facilities. GIPSA established a 3-month and 6-month contract rate for facilities that had fluctuating workloads; however, GIPSA had only one 3-month contract and one 6-month contract during FY 2002 and had none of these contracts in FY 2003. GIPSA has learned through the years of contracting that it is extremely difficult to accurately project an employees non-revenue producing time when utilizing 3-month and 6-month contracts. Therefore, GIPSA decided it is best to provide service with either a one-year contract or with the non-contract rate. Therefore, GIPSA proposed to abolish provisions for the 3-month and 6-month contracts.
GIPSA conducted a detailed, port-by-port evaluation of its costs and revenue streams for both contract and non-contract employees. GIPSA found that payroll increases caused by grade increases, longevity pay, and locality pay have exceeded the cost-of-living increases that GIPSA has charged annually. Further, GIPSA found that changes in grain distribution have increased non-revenue periods for certain workers. The evaluation showed the actual level of revenue-producing time likely to be expected from contract
GIPSA also charges hourly fees for services performed at other than export facilities. These fees are designed to recover GIPSA employee salary and benefits costs along with a portion of administrative and supervisory costs. Again, despite fee increases to accommodate the annual Federal pay increases, the current fees do not sufficiently cover costs. Like the employee costs at export, employee service costs and employee administrative costs have increased due to increased employee benefit costs, increases in payroll caused by longevity pay, and increases in payroll due to locality pay. Costs not related to employees have also increased. These local and national administrative costs include rent, communications, utilities, and other administrative support services. Based on its evaluation, GIPSA identified the costs and determined these hourly rates need to increase by approximately 11.5 percent to recover the additional costs.
As GIPSA updates these unit fees, it also provides GIPSA a chance to remove obsolete services from the list. At one time, GIPSA offered aflatoxin tests using the thin-layer chromatography (TLC) method. GIPSA discontinued the use of this test in 1998 because of the hazardous chemical materials required to conduct the test and rapid test kits were available for field use which were safer and less expensive. GIPSA proposed to remove the method from the fee schedule since this test is no longer available. The unit fee for aflatoxin will recover the costs of the quick test kits currently used at field offices.
The 6-level administrative tonnage fee is designed to reduce fees as the inspection volume increases. These fees have also been adjusted through the years to reflect the annual Federal pay raises. The following table illustrates how the fee levels are structured and indicates what was originally implemented in 1996 and what is current for the same levels.
When GIPSA introduced the 6-level tonnage fee in 1996, the World Agricultural Outlook Board projected grain exports to increase 2.5 percent annually, and reach 131 MMT by 2001. With this in mind, GIPSA decided to use 85 MMT as the target level for setting fees. This would be the breakeven point. GIPSA could expect to recover costs if billable tonnage were 85 MMT or more. Conversely, costs would exceed the revenues if billable tonnage were less than 85 MMT. Since 1996, GIPSA had only one year where the billable tonnage reached the 85 MMT mark at 85.2 MMT. Although GIPSA recovered the costs that year, the other years had losses between $1 million and $1.7 million. The decision to use 85 MMT as the breakeven basis for the administrative tonnage fee has contributed to the revenue shortfall.
Other changes in market practices further reduced revenue collected. Exports handled by the New Orleans Field Office facilities increased from 72 percent of the total tons serviced by GIPSA in FY 1996 to 79 percent in FY 2003. During the same period, the League City Field Office export tonnage decreased from 13 to 12 percent and the Portland Field Office volume declined from 10 to 7 percent. In addition, the Baltimore Field Office was closed due to no volume in FY 2002. These market shifts resulted in less revenue being collected per metric ton than originally predicted since the shift in New Orleans resulted in more tons loaded at a lower per-ton cost due to the 6-level fee structure. Export volume increased and the revenue per ton decreased.
GIPSA's analysis of the financial information for the 6-level administrative tonnage fee shows the revenues from it are not recovering the costs. To better recover field office administrative and supervisory costs in today's export grain marketing environment, GIPSA analyzed three potential changes to the current administrative tonnage fee: Alternative 1: specific field office tonnage fees; Alternative 2: a flat rate national administrative tonnage fee; and Alternative 3: increasing the current 6-level tonnage fee by 27 percent. The analysis used actual FY 2002 costs, revenue, and volume of export grain inspected by GIPSA.
The specific field office tonnage fee (Alternative 1) was designed to recover local overhead costs and a part of the national administrative costs. Local administrative costs were divided by the tonnage observed by that field office to determine the cost per ton needed by the field office to cover expenses.
A flat rate national administrative tonnage fee (Alternative 2) was designed to recover total administrative costs but not necessarily each field office collecting revenues to recover the local costs. This tonnage fee was calculated by dividing GIPSA's total administrative costs (field offices and headquarters) by the total tons of U.S. export grain serviced by GIPSA. GIPSA determined the flat rate national administrative tonnage fee would collect the revenues to recover the total administrative costs but only the New Orleans Field Office received revenue to recover the field office administrative costs. All other field offices did not recover their local administrative costs.
GIPSA determined if increasing the current 6-level tonnage fee was to become a viable option, those fees would have to be increased by 27 percent (Alternative 3). Although all the field offices collected revenues to recover the total administrative costs of GIPSA; not all field offices collected revenue to offset their individual office costs. GIPSA is also concerned that shifting market trends may make the 6-level tonnage fee unreliable since the revenues are dependent on the volume of grain handled by each facility.
After considering these alternatives, GIPSA proposed adopting the specific field office administrative tonnage fee structure (Alternative 1). Under this fee structure, local export facilities financially support their field office administrative costs and every ton of grain exported from field office service areas is assessed an identical fee to cover headquarters costs. This will ensure that headquarters costs are collected regardless of where the grain is exported. This proposed tonnage fee also puts each field office in an independent financial position and encourages customers to work directly with each field office to continue the implementation of grain handling efficiencies while raising the awareness of local administrative and supervisory costs. This action should foster the further development and implementation of grain handling efficiencies by grain companies to reduce the cost of GIPSA services. Also, this process makes administrative and supervisory costs more transparent to the industry.
GIPSA developed the new administrative tonnage fees by projecting GIPSA costs to the FY 2007 level and assuming GIPSA billable tonnage will be 80 MMT. GIPSA determined the field office tonnage rates would be $0.167 per ton for elevators serviced by the League City Field Office, $0.067 per ton for elevators serviced by the New Orleans Field Office, $0.136 per ton for elevators serviced by the Portland Field Office, and $0.184 for elevators serviced by the Toledo Field Office.
When GIPSA implemented the administrative tonnage fees, it also provided for a monthly payment of administrative fees to level out the payments over the year based on the expected tonnage handled by a facility. This provision, located in section 800.73(e) of the regulations, was used to level out the tonnage rates over a year instead of paying in incremental levels. GIPSA reviewed the need to preserve this regulation and determined it was no longer needed. Proposing specific field office tonnage rates that will not change due to increased volume does not require a monthly payment program to level the costs. Further, the provision for the monthly payment process has not been used by industry. Therefore, GIPSA proposed to remove this provision from the regulations.
As GIPSA evaluated the administrative and supervisory fees needed to cover field office and national administrative and supervisory costs, GIPSA also considered the contribution of revenue collected from official agencies to cover the costs of administration and supervision of their programs. GIPSA initiated this review by determining the total administrative and supervisory costs of overseeing the official agencies ($2,330,343) and the total number of metric tons inspected by official agencies in both the domestic and export markets (150,650,608 metric tons) to determine the overall cost per ton needed to cover these administrative and supervisory costs. This resulted in a need to collect $0.016 per metric ton.
In FY 2002, delegated States inspected 19,049,018 metric tons of grain (655 ships) and GIPSA collected $32,226 in revenues from the $49.20 per ship fee. This makes the current ship fee equivalent to $0.00169 per metric ton. This is short of the $0.016 per metric ton GIPSA calculated as needed to recover costs. Since the current ship fee is contributing very little to recover the costs of administration and supervision of the delegation and designation program, GIPSA proposed to change this fee from a unit fee to a tonnage fee. The tonnage fee would be set at $0.016 per ton since this is what GIPSA calculated as the amount needed to recover costs.
GIPSA proposed to change the fees shown in 7 CFR 800.71, Schedule C-Fees for FGIS Supervision of Official Inspection and Weighing Services Performed by Delegated States and/or Designated Agencies in the United States by removing the $49.20 unit fee for ships and replacing it with the $0.016 per ton fee which GIPSA determined is needed to help recover the cost of administration and supervision of the official agency program.
Scale specialists are highly specialized individuals who are trained in scale operation and the operation of test equipment. Scale specialists are in a different job classification and grade level than inspectors or weighers because of their unique responsibility. Consequently, they are classified at a higher grade level. On average, scale specialist costs are 30 percent higher than the cost of agricultural commodity graders. Therefore, GIPSA needs to set the hourly fee for special weighing services at a level approximately 30 percent higher than the fee established for non-contract services.
GIPSA also owns and operates five railroad test cars that are used to test and calibrate railroad master scales and commercial track scales. The National Bureau of Standards (NBS) master scale testing program transferred to GIPSA in 1980 under an agreement between NBS, the Association of American Railroads (AAR), and then, the Federal Grain Inspection Service. Under this agreement, GIPSA is responsible for maintaining the master scale in Chicago and annual testing and calibration of other railroad master scales located throughout the United States.
GIPSA's railroad track scale testing program is funded by the service agreement with AAR and by revenues collected from non-AAR customers. The railroad track scale testing program costs have exceeded revenue for the last several years by approximately $25,000 per year. This is due to hourly fees not fully recovering the cost of the service representative and an increase in the cost of maintaining the aging test cars and other equipment used in the program. Consequently, the total funding and revenue are not meeting the cost of the program.
Although the test cars GIPSA uses in this program are properly maintained to provide an accurate service, more frequent repair services are needed due to the age of the test cars. This is increasing the cost of the program. Eventually, GIPSA will need to replace test cars in order to continue providing this valuable service to the railroad industry. GIPSA had solicited bids to build a new car; however, the initial bid cost was in excess of $200,000 and GIPSA did not have the funds to cover that cost. To collect the funds needed to maintain and replace test cars, GIPSA proposed to implement a user fee of $500 per facility when the test car is used to test commercial track scales. Implementing a specific fee for the use of the test cars will assure that only those companies that use the test cars are contributing towards the expenses directly related to the test cars. These expenses include both the maintenance of the test cars and costs associated with the replacement of the test cars.
GIPSA has determined that applying a $500 service fee to the 50 locations serviced by GIPSA for using the GIPSA test car, in addition to the hourly fee for the service representative, should raise sufficient funds to recover the annual loses of $25,000. GIPSA, by recovering this annual financial loss, will be able to maintain the test cars in good repair and initiate retained earnings to contribute towards the purchase of new test cars in the future. GIPSA will not apply the $500 usage fee to the AAR scales tested under the agreement since AAR's costs are covered through the service agreement.
In summary, GIPSA is authorized by the USGSA to charge and collect reasonable fees for performing official inspection and weighing services. The fees are to cover, as nearly as practicable, GIPSA's costs for performing inspection and weighing services, including related administrative and supervisory costs. GIPSA has determined the current fees are not recovering these costs despite efforts to reduce these costs over the years.
Accordingly, on November 19, 2003, GIPSA published in the
The changes should generate additional average annual revenues as noted in the following table.
The changes are needed to restore the retained earnings accounts and to maintain a 3-month operating reserve. GIPSA has projected that the changes to the fee schedule should gradually replenish the retained earnings account and the 3-month operating reserve. The following table illustrates how gradually restoring the fund is projected over time.
GIPSA will evaluate the financial status of the grain inspection and weighing program every six months to determine if it is meeting the goal of obtaining a 3-month operating reserve by FY 2010. Using the projected information in the above table, GIPSA will assess if the revenue collection trend is comparable to the financial objectives of the table. GIPSA will consider further adjusting the fees if it becomes apparent that GIPSA's goal to restore the retained earnings accounts and to obtain a 3-month operating reserve is not achievable by FY 2010. Although it has not done so in the recent past, GIPSA will ensure that future annual fee adjustments for Federal pay increases will take into account longevity pay, locality pay, and benefits.
Maintaining GIPSA's financial stability will assure continued inspection and weighing services to the grain industry which will further facilitate the sound and orderly marketing of grain in domestic and export markets.
GIPSA received five comments in response to the proposed rulemaking published November 19, 2003, in the
The joint comment from the three grain trade associations opposed the hourly fee increases for contract and non-contract services and hourly fees for services not performed at an applicant's facility. Their comments indicated GIPSA should not rely on fee increases to offset rising costs. Rather, GIPSA must continue to pursue cost cutting, increase productivity, and reconfigure its work force to mitigate price increases. An additional comment was received from an individual opposing the proposal. The comment asserted that the USDA budget was too high and the Department should cut costs.
As stated in the background, GIPSA has taken action over the years to minimize payroll costs. This is a significant area of focus for GIPSA since we know payroll costs account for approximately 84 percent of GIPSA's total operating budget. GIPSA, however, is also bound by Federal personnel rules and cannot change employee salaries and benefits. Consequently, GIPSA has implemented management and inspection scheduling actions to minimize these costs over time while operating within the Federal personnel rules. GIPSA will continue to explore ways to reduce costs. However, it is necessary to make fee adjustments now to recover revenue to offset both current and projected costs.
The joint comment from the three grain associations also expressed opposition to the proposed $0.016 per metric ton delegated State ship fee. Their opposition was based on their conclusion that the delegated State ship fee would be doubled when official inspections and weighing services are performed on a vessel. This would result in a total $0.032 per metric ton for these ships.
The ship fees in Schedule C, Tables 1 and 2 are listed as separate fees for inspection and weighing. However, when a ship is inspected and weighed at the same time, only one fee is assessed per ship. This was the intent of footnote 3 in these tables. To further clarify this application of the fee, GIPSA will amend the footnote to make it clear that only one fee is assessed per ship when both inspection and weighing services are provided at the same time.
The opposing comment also questioned why the delegated State service fee for ships was different than the tonnage fee for GIPSA services. GIPSA operates two independent programs within the official inspection and weighing system. One program is the original inspection and weighing services provided by GIPSA employees. The other program is the supervision and administration of official inspection and weighing services provided by delegated States and designated agencies.
GIPSA's regional tonnage fees for ships are intended to recover costs directly associated with the administration and supervision of GIPSA services. It includes local administrative costs as well as a portion to cover headquarters administrative costs. The local administrative cost portion of the fee is determined by dividing the local costs by the amount of tons inspected and/or weighed by the office. The national or headquarters cost portion of the fee is determined by taking the total headquarters cost to manage the program and dividing it by the amount of tons inspected and/or weighed by GIPSA nationally.
The fee for ships inspected and or weighed by delegated States is calculated in a similar way. All headquarters costs to manage the program are divided by the total tons inspected and/or weighed by the delegated States and designated agencies. Since the fees for supervision and administration of delegated States and designated agencies are a national fee, the local costs are also divided by the total tons.
The comments received from the two grain companies exporting grain from Washington and from the State of Washington opposed payment of the delegated State ship fee based on the cooperative agreement signed between the State of Washington and GIPSA.
Section 800.71 of the regulations provides that the fees shown in Schedule C apply to official inspection and weighing services performed by delegated States and designated agencies in the United States, except for those State agencies that are delegated additional responsibilities by GIPSA. These States, currently Washington and California, are assessed annual charges as stated in the State's Delegation of Authority document.
GIPSA has a long-standing agreement with these States whereby each State pays direct compensation to GIPSA for local costs along with a portion to cover headquarters administrative costs. Although Washington and California are excluded from the Schedule C fees due to the agreements between GIPSA and the States, the other delegated States are not excluded. Therefore, GIPSA will proceed with the $0.016 per metric ton fee for ships serviced by delegated States.
This rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget (OMB). GIPSA prepared a Regulatory Impact Assessment (RIA) consisting of a statement of the need for the proposed action, an examination of alternative approaches, and an analysis of the benefits and costs.
GIPSA changed the inspection and weighing fees in 1996 (61 FR 43301) from using predominately hourly fees to the current method of using a mixture of hourly fees, unit fees, and tonnage fees. Hourly fees are designed to recover the salary and benefit costs for those employees (pool) that perform work at an export grain elevator. Unit fees are designed to recover the costs of tests along with administrative and
GIPSA implemented the new fees expecting exports to increase. Export volume is a critical condition since GIPSA determined a minimum of 85 MMT of billable tonnage was needed to break even. Since implementing the fees in 1996, GIPSA has only experienced one year where the revenues exceeded the costs. That year the billable tonnage reached 85 MMT. The other years had billable tonnage below the 85 MMT target and costs exceeded the revenues in those years due to the changes in grain marketing. Annual losses have been between $1 million to $1.7 million since 1996; except for the one positive year GIPSA revenue exceeded the costs by $88,000.
The continued financial deficits prompted GIPSA to initiate a detailed analysis of the user fees and operating costs to determine why revenues were not supporting the costs and to determine what action was needed. At the same time, it must be recognized that the U.S. grain market is very dynamic and constantly changing which makes it difficult to precisely predict and project long-term market trends. Transportation costs, grain handling costs, global pricing, environmental conditions, crop quality conditions, phytosanitary issues, and crop production are some of the issues that influence the changing grain market.
Since implementing the fees in 1996, GIPSA has adjusted hourly fees to correspond with annual Federal pay increases. This action is necessary since employee payroll costs account for approximately 84 percent of GIPSA's total operating budget. Although these fee adjustments were made through the years, GIPSA costs continue to exceed its revenues.
GIPSA recognizes the need to reduce inspection and weighing costs as much as possible before increasing fees. Therefore, GIPSA has taken action through the years to minimize payroll costs. These actions include utilizing employee buyouts to remove high-salaried, senior employees from the active employment list; taking advantage of employee attrition to reduce total staff by not hiring to fill vacant positions; hiring and scheduling more part-time and intermittent employees to better manage staff costs during fluctuating work periods; and reducing the amount of paid overtime via creative scheduling processes. Although GIPSA has observed a 14 percent reduction in paid hours and has reduced overtime pay by 2 percent, this is not enough to avoid continued financial losses.
GIPSA's financial review detected where the program losses were occurring. GIPSA has determined the hourly fees for services performed at the export elevator are not recovering the full cost of the pool. The base salary and benefits for the pool have increased beyond the annual Federal pay increase adjustments. Locality pay was not factored into the yearly cost-of-living increases nor was longevity pay increases. When the current fee was first established in 1996, the base contract hourly fee was based on a GS-9, step 5 pay level which was the average pay level for the pool. Today the average pool pay level is a GS-9, step 8. This equates to an average additional annual salary cost of $3,500 per GS-9 inspector. Locality pay may also increase this cost by an additional 9 percent to 18 percent depending on the geographic location of the employee.
Benefits paid to employees have also increased. In FY 1996, employee benefit costs averaged 19 percent. Since that time, overall benefit costs have increased 6 percent and now average 25 percent. Many factors have lead to this increase. Health and life insurance premiums have increased along with Office of Worker's Compensation Program (OWCP) costs. GIPSA pays all OWCP costs since the government is self insured. Since FY 1996, some employees have converted to the new Federal Employees Retirement System (FERS) and all new employees are in FERS. The FERS is patterned after a typical retirement system used by non-Federal companies in that the employer must pay into social security and matches contributions into a 401(k) plan.
Grain marketing strategies and export volume have also had a negative effect on GIPSA's revenue. Since FY 1996, some grain exporting facilities have automated their material handling systems which requires fewer inspection and weighing personnel to provide service and makes the elevator more efficient. This improved efficiency has triggered a shift in locations where export grain is loaded. For example, the New Orleans Field Office facilities increased their export capacity from 72 percent of the total tons serviced by GIPSA in FY 1996 to 78.6 percent in FY 2002. During the same timeframe, the League City Field Office export tonnage decreased from 13 to 12 percent and the Portland Field Office volume declined from 10 to 7 percent. These market shifts resulted in less revenue being collected per metric ton than originally planned because of the 6-level administrative tonnage fee. The New Orleans Field Office exports average revenue was $0.048 per ton in 2002 while League City average revenue was $0.090 per ton and Portland's average revenue was $0.098 per ton. GIPSA estimates this shift in grain movements resulted in a revenue loss of approximately $660,000. Further, billable tonnage is not reaching the 85 MMT targeted in the 1996 fee schedules as the break even point. Therefore, revenue predictions based on billable tonnage were higher than what was actually billed.
GIPSA has evaluated the administrative tonnage fee and determined it is not recovering its share of local and national administrative and supervisory costs because of increased employee costs not related to annual pay increases, shifting grain exports to lower revenue per ton markets, and exports not reaching the 85 MMT mark to break even. Local and national costs such as rent, communications, utilities, and other administrative support services have also increased since 1996. Adjustments to the fees during the years have not compensated for these cost increases.
As GIPSA reviewed its financial status, it also concluded that unit fees are not recovering the cost of providing the service, supervision fees charged to delegated States for ships are not sufficient compared to the quantity of grain that is inspected and weighed, and the track scale testing program is not producing the revenue needed to maintain the testing program.
GIPSA charges unit fees for additional services provided at an applicant's facility in an onsite GIPSA laboratory. These unit fees are charged in addition to the hourly rate. These unit fees are designed to recover the costs of the equipment and supplies needed to provide the service. GIPSA has not made any adjustments to these unit fees since they were first promulgated in 1996.
Currently, GIPSA assesses $49.20 per ship to delegated States for providing official inspection and weighing services. This fee is collected to recover administrative and supervision costs of the official agencies. GIPSA has determined the delegated States should be contributing $0.016 per ton towards administrative and supervisory costs. However, the $49.20 per ship fee is only recovering an amount equivalent to $0.00169 per ton.
GIPSA also provides special weighing services to the industry. These services include scale testing and certification, evaluations of weighing and material handling systems, National Type
The track scale testing program also uses special weighing equipment (test cars) to test track scales. These cars require maintenance and need to be replaced in the future. To assist in recovering the costs associated with these railcars, GIPSA would charge a $500 unit fee each time the car is used at a facility.
GIPSA has concluded that despite efforts to reduce the cost of services, including administrative and supervisory activities, the revenues collected from the current user fees are less than the costs associated with these services. Consequently, GIPSA must re-evaluate the design and application of user fees to recover the costs of providing service in order to place the agency in a sound financial status. GIPSA is statutorily required to charge fees to cover the cost of service. To do this, GIPSA has projected the potential costs out to FY 2007 and plans to replenish the operating reserve fund back to its 3-month level by FY 2010. The cost of living projections used in calculating future salary and benefits were supplied by OMB as published in the
GIPSA has determined that this action is needed to recover the costs of providing services and to maintain a professional workforce to inspect and weigh grain for the grain industry. In doing so, GIPSA will continue to facilitate the orderly marketing of grain in the domestic and export markets.
The design and implementation of the administrative tonnage fee to recover local and national administrative and supervisory costs is another important component of this proposal. GIPSA evaluated and compared three different alternatives for charging administrative tonnage fees: Alternative 1: establishing an administrative tonnage fee specific to each field office, Alternative 2: establishing a fixed rate national administrative tonnage fee, or Alternative 3: increasing the current 6-level administrative tonnage rates by 27 percent.
GIPSA analyzed the various alternatives in relation to each field office area because each field office is unique when considering the number of employees, the number and types of elevators serviced, and the volume of grain exported from that area. FY 2002 information for each field office was used to analyze and compare the expected revenues for the various alternatives because the information is the most current and is indicative of recent marketing trends. This information was used to detail the cost recovery by each field office.
Table 1 indicates the 5 GIPSA export field offices (the Baltimore office was closed in November 2002), the number of elevators in each field office area, the number of metric tons inspected, the amount of revenue collected from the tonnage fee for each field office, the field office administrative cost related to tonnage revenue, the headquarters administrative cost related to tonnage revenue, the amount of both the field office and headquarters administrative cost, and the amount each field office was deficient. Table 1 demonstrates that some offices did not cover their individual administrative and supervisory costs (
Table 2 indicates the average revenue per ton collected by each office, the component amounts of administrative and supervisory revenues per ton needed to meet field office and headquarters costs, and the estimated cost per metric ton calculated for each alternative. There are differences in the actual average revenue collected per ton in each office for FY 2002. This ranges from $0.048 per ton in New Orleans to $0.127 per ton in Baltimore. These
The administrative and supervisory cost attributed to headquarters in Table 2 is $0.044 (rounded from $0.0438) per metric ton inspected. This amount is determined by dividing the amount of headquarters cost ($3,603,356 from Table 1) by the number of total metric tons inspected (82,268,405 tons from Table 1). The administrative cost of each office is determined by dividing the offices administrative cost (from Table 1) by the number of metric tons inspected by each office (from Table 1).
In Table 2, establishing an administrative tonnage fee specific to each field office (Alternative 1) is arrived at by combining the calculated field office tonnage rate with the headquarters tonnage rate. This results in the unique field office tonnage rate required to cover the entire field office administrative costs and the field office portion of the national administrative cost. Establishing a fixed rate national administrative tonnage fee (Alternative 2) tonnage rates is arrived at by taking the total administrative costs (all field office costs plus headquarters costs) divided by the total billable tonnage. This results in a single tonnage fee that is applicable to all GIPSA customers. Increasing the current 6-level administrative tonnage fee (Alternative 3) is determined by taking the current tonnage rate tables and increasing them by 27 percent. The 27 percent increase is what GIPSA determined the shortage was in the revenue to the costs.
Table 3 shows the projected administrative tonnage revenues based on the tonnage fees from Table 2. The projected information shows all offices collect sufficient revenues to cover the local administrative and supervisory costs as well as the headquarters cost when the regional tonnage fees are used (Alternative 1). The other alternatives cover the total cost of administration and supervision; however, some offices do not collect the revenues needed to support the field office costs and some do not cover the total of the field office cost combined with a portion of the headquarters administrative cost as a result of the employee cost increases and the changes in grain marketing.
All alternatives collect the targeted amount needed to fully fund both field and headquarters overhead in total. GIPSA believes each field office should collect sufficient revenue from customers to support the local field office administrative and supervisory costs in addition to their share of the national administrative and supervisory costs. This would put each field office in an independent financial position and would encourage customers to work directly with each field office and headquarters to continue the implementation of grain handling efficiencies while raising the awareness of local administrative and supervisory costs.
The national administrative fee approach (Alternative 2) relies heavily on the New Orleans Field Office to support the administrative and supervisory costs of the other offices. The alternative to increase the current 6-level tonnage fee structure by 27 percent (Alternative 3) results in the same situation. After a complete evaluation, GIPSA believes the regional tonnage method (Alternative 1) is the best approach to collect revenues for these
GIPSA is establishing new administrative tonnage fees based on the concept of Alternative 1. These tonnage fees are calculated to recover the projected increases in administrative and supervisory costs related to employee costs as determined by the OMB estimates and based on a minimum 80 MMT of billable tonnage.
Table 4 lists the expected tonnage and the expected administrative and supervisory costs for field offices and headquarters projected out to FY 2007. This information was then used to determine the specific field office tonnage rate needed to recover field office costs and the tonnage rate needed to recover the headquarters cost. The field office tonnage rate in Table 4 was determined by dividing the projected field office cost by the projected tonnage.
Table 5 combines the field office tonnage rates with the headquarters tonnage rates to calculate the specific field office tonnage rate. The projected tonnage rate was used to calculate the projected revenue for each field office by multiplying the projected tons for each field office by the specific field office rate. The projected revenue for each office was compared to the projected total costs (field office and headquarters) for each field office (from Table 4) to determine if each field office collected sufficient revenues to cover their costs.
Table 5 demonstrates that the projected tonnage fees produce revenues to cover, as nearly as practicable, overall costs for each field office. The Toledo Field Office calculated tonnage rate, however, does not cover their costs. Therefore, GIPSA increased their rate by one-tenth of a cent per ton to fully recover their costs.
As GIPSA evaluated the administrative and supervisory fees needed to cover field office and national administrative and supervisory costs, GIPSA also considered the contribution of revenue collected from official agencies to cover the costs of administration and supervision of their programs. GIPSA initiated this review by determining the total administrative and supervisory costs of overseeing the official agencies ($2,330,343) and the total number of metric tons inspected by official agencies in both the domestic and export markets (150,650,608 metric tons) to determine the overall cost per ton needed to cover these administrative and supervisory costs. This resulted in $0.016 per metric ton to cover administration and supervision of official agencies.
Currently, GIPSA assesses $49.20 per ship to delegated States for providing official inspection and weighing services. This fee is then passed on to the exporter by the delegated State. In FY 2002, delegated States exported 19,049,018 metric tons of grain (655 ships) and GIPSA collected $32,226 in revenues from the $49.20 per ship fee. This makes the current ship fee equivalent to $0.00169 per metric ton. This is far less than the $0.016 per metric ton GIPSA calculated was needed to recover costs. Since the current ship fee is contributing very little to recover the costs of administration and supervision of the
User fees promote the internalization of the real cost of providing inspection and weighing services in consumer transaction decisions. User fees also achieve savings in Government expenditures, and, therefore, reduce the tax support necessary for the system to operate at a given level. These tax funds can then be used in other programs or to reduce taxes overall and, thus, diminish the efficiency losses associated with the generation of taxes (deadweight loss plus collection costs). The revision of user fees helps ensure that the user fees adequately reflect the cost of performing the services over time.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. The USGSA provides in Sec. 87g that no subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the USGSA. Otherwise, this rule would not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to provisions of this rule.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements included in this rule have been submitted for approval to the Office of Management and Budget (OMB). The rule would require applicants to complete Form FGIS-4, Application and Agreement for Contract Services, if they intend to enter into a one-year contract service agreement with GIPSA. Copies of this information collection can be obtained from Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604.
GIPSA is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
In promulgating this regulation, GIPSA considered the potential civil rights implications on minorities, women, or persons with disabilities and prepared a Civil Rights Impact Analysis to ensure that no person or group shall be discriminated against on the basis of race, color, sex, national origin, religion, age disability, or marital or family status. GIPSA has considered potential civil rights implications of this rule on minorities, women, or persons with disabilities to ensure that no person or group will be discriminated against on the basis of race, color, sex, national origin, religion, age, disability, or marital or familial status. The rule will apply in the same manner to all persons and groups whose activities are regulated, regardless of race, gender, national origin, or disability. Information indicates that the rule will have no effect on protected populations.
GIPSA has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601
GIPSA adopted its current fee structure (61 FR 43301) effective October 1, 1996, for services provided by GIPSA employees. This fee structure change was needed because advances in technology had allowed exporters to improve operational efficiencies, which, in turn, had reduced the number of GIPSA personnel required to service certain facilities. The fee structure was changed from primarily using hourly fees to recover costs to a method that uses a mix of hourly and unit fees for its inspection and weighing services. Direct service costs are recovered through hourly fees charged for employees providing the inspection and weighing services. Administrative costs are recovered by a tonnage fee applied to grain inspected and weighed as shipments from an export facility. Export grain companies are paying for direct labor costs and pay a share of the local and national administrative costs.
Since implementing the fees in 1996, GIPSA has adjusted hourly fees to correspond with annual Federal pay increases. This action is necessary since employee payroll costs account for approximately 84 percent of GIPSA's total operating budget. The current USGSA fees were published in the
GIPSA regularly reviews its programs to determine if the fees are adequate. Since implementing the fees in 1996, GIPSA has only experienced one year where the revenues exceeded the costs. Annual losses have been between $1 million to $1.7 million since 1996 except for the one positive year GIPSA revenue exceeded the costs by $88,000.
GIPSA recognizes the need to reduce inspection and weighing costs as much as possible before increasing fees. Therefore, GIPSA has taken action through the years to minimize payroll costs. These actions include utilizing employee buyouts to remove high-salaried, senior employees from the active employment list; taking advantage of employee attrition to reduce total staff by not hiring to fill vacant positions; hiring and scheduling more part-time and intermittent employees to better manage staff costs during fluctuating work periods; and reducing the amount of paid overtime via creative scheduling processes. Although GIPSA has observed a 14 percent reduction in paid hours and has reduced overtime pay by 2 percent, this is not enough to avoid continued financial losses.
GIPSA has completed a review of the grain inspection and weighing programs and has determined it is necessary to amend the fees in order to replenish the retained earnings accounts and to maintain a 3-month operating reserve. These changes are targeted to recover employee costs directly related to services provided and to recover the costs associated with administering and supervising the grain inspection and weighing programs. Maintaining GIPSA's financial stability will assure continued inspection and weighing services to the grain industry which will further facilitate the sound and orderly marketing of grain in domestic and export markets.
To minimize the impact of a fee increase, GIPSA has decided to establish fee rates that collect sufficient revenue to immediately cover operating expenses, while striving to create a 3-month operating reserve by FY 2010. These fees are designed to collect sufficient annual revenue through FY 2007, to achieve an average estimated positive $1,000,000 balance annually based on an inspection volume of 80 MMT per year. The cost of living projections used in calculating future salary and benefits out to FY 2007 were supplied by OMB as set forth in their
Under the provisions of the United States Grain Standards Act, grain exported from the United States must be officially inspected and weighed. Mandatory inspection and weighing services are provided by GIPSA at 32 export facilities and by delegated States at 19 export facilities. All of these facilities are owned by multi-national corporations, large cooperatives, or public entities that do not meet the requirements for small entities established by the Small Business Administration. Further, the regulations are applied equally to all entities.
The USGSA (7 U.S.C. 87f-1) requires the registration of all persons engaged in the business of buying grain for sale in foreign commerce. In addition, those individuals who handle, weigh, or transport grain for sale in foreign commerce must also register. The USGSA regulations (7 CFR 800.30) define a foreign commerce grain business as persons who regularly engage in buying for sale, handling, weighing, or transporting grain totaling 15,000 metric tons or more during the preceding or current calendar year. At present, there are 90 registrants registered to export grain. While most of the 90 registrants are large businesses, we assume that some may be small.
GIPSA also provides nonmandatory inspection and weighing services at other than export locations. Approximately 75 different applicants receive nonmandatory inspection services each year and approximately 50 different locations receive track scale tests as a miscellaneous service each year. While most of these applicants are large businesses, we assume that the final rule should not significantly affect many small businesses requesting these official services. Furthermore, any of these applicants that wish to avoid the fee increase may do so by using an alternative source for these services. Such a decision should not prevent the business from marketing its product or conducting business as usual.
GIPSA has determined that the total cost to the grain industry to implement the final rule will be approximately $5 million per year. This represents an approximate 21 percent increase in revenues or an average increase of 6.5 cents per ton. These calculations are based on the assumptions that the projected OMB employee costs for continued annual Federal pay increases will increase a total of 17.38 percent from FY 2002 to FY 2007 and GIPSA will collect revenue from a minimum of 80 MMT per year which was used to establish the tonnage fee.
Most users of the official inspection and weighing services do not meet the requirements for small entities. Further, GIPSA is required by statute to make services available and to recover, as nearly as practicable, the costs of providing such services. Additionally, GIPSA has not identified any other Federal rules which may duplicate, overlap, or conflict with this proposed rule. Therefore, Donna Reifschneider, Administrator, GIPSA, has certified that this final rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure; Grain.
Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C. 71
(a) * * *
Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation (FDIC) is amending its regulations to update certain information and implement section 508 of the Rehabilitation Act. Section 508 requires each Federal agency or department to ensure that the electronic and information technology (EIT) they develop or procure allows individuals with disabilities access to EIT comparable to the access of those who are not disabled, unless the agency would incur an undue burden.
Effective Date: This final rule shall be effective June 14, 2004.
Earl F. McJett, Information Management Analyst, Office of Diversity and Economic Opportunity, (202) 416-4320, or Joan S. Bunning, Counsel, Legal
On March 20, 1986, the FDIC promulgated 12 CFR Part 352 to implement the spirit of section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act) (29 U.S.C. 794), as amended. Section 504 prohibits discrimination on the basis of disability as it applies to programs and activities conducted by various agencies. Although the FDIC did and still does not believe that Congress contemplated that section 504 should cover non-appropriated, independent regulatory agencies such as the FDIC, it voluntarily chose to promulgate this regulation pursuant to section 504. See 51 FR 9638 (1986).
The Workforce Investment Act of 1998 (the WIA) (Pub. L. 105-220, 112 Stat. 936) amending section 508 of the Rehabilitation Act (29 U.S.C. 794d), was signed into law on August 7, 1998. As amended, section 508 requires each Federal agency or department to ensure that the EIT it develops or procures allows individuals with disabilities access comparable to those who are not disabled, unless the agency would incur an undue burden. In addition, the amended section 508 requires the Architectural and Transportation Barriers Compliance Board (Access Board) to publish standards defining EIT and setting forth the technical and functional performance criteria necessary to accessibility for such technology. The WIA was effective as of August 7, 2000. The statute required the Access Board to publish its final standards by February 7, 2000.
On July 13, 2000, the Military Construction Appropriations Act for Fiscal Year 2001 (Pub. L. 106-246, 114 Stat. 511) was signed into law. Section 2405 of that statute amended section 508 to delay the section's effective date for enforcement to 6 months from the publication of the Access Board's final standards. The Access Board's final standards were published on December 21, 2000 (65 FR 80500). The effective date for enforcement of section 508 became June 21, 2001.
The FDIC has proposed to amend its regulations to reflect these legal requirements and to update regulations to reflect current terminology, practice, and procedures.
The Notice of Proposed Rulemaking was published in the
During the sixty day public comment period which ended on January 23, 2004 no comments were received. Therefore, the FDIC publishes this final rule without revision.
This section has been amended to state that the purpose of the regulation is to implement and update the requirements of section 508 of the Rehabilitation Act of 1973, as amended by the WIA, in addition to section 504 of the Rehabilitation Act.
This section has been amended to state that Part 352 applies to EIT access in addition to the agency's programs and activities. It also updates references to certain components of the FDIC such as the Office of Legislative Affairs and lists the FDIC's Internet website as one of the agency programs or activities to which Part 352 applies.
This section has been amended to include definitions specifically pertaining to EIT, to update terminology by substituting the term “individual with a disability” for “handicapped person,” and to define references in the regulation to section 508 and pertinent statutes.
This section was previously designated 352.5. Current § 352.4 is deleted. This section pertained to a self-imposed requirement that the FDIC must evaluate its program to implement section 504 of the Rehabilitation Act within one year of the regulation's effective date. This self-evaluation has been conducted by the FDIC. The current § 352.4 is therefore unnecessary.
The new § 352.4 states that no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination on the basis of that disability in FDIC programs or activities.
With respect to technology access, this new section states that the FDIC will ensure that employees and the public with disabilities will have access to EIT comparable to those without disabilities, unless an undue burden would be imposed on the FDIC.
This section has been amended to provide that no qualified individual with a disability shall, on the basis of that disability, be subjected to discrimination in employment in any program or activity conducted by the FDIC. The section further provides that the definitions, requirements, and procedures of the Rehabilitation Act that pertain to employment discrimination, as reflected in the Rehabilitation Act's implementing regulations, will apply to FDIC employment.
This section has been amended to make plain that the FDIC shall operate its programs and activities to be readily accessible to and usable by persons with disabilities.
This section has been amended to provide that each building or part of a building where FDIC programs or activities will occur which is either new or substantially altered for the FDIC shall be fashioned for ready access and use by individuals with disabilities.
This section has been amended to provide that the FDIC shall take appropriate steps to effectively communicate with participants in FDIC programs and activities. The section has also been amended to refer to individuals with disabilities rather than handicapped persons and to the Office of Diversity and Economic Opportunity (ODEO) rather than the superseded Office of Equal Employment Opportunity. The section has also been amended to provide the current address and telephone numbers of ODEO for those who wish to contact that FDIC component.
This section has been amended to provide that the section applies to claims of discrimination on the basis of disability in FDIC programs and activities or the denial of access to EIT. The section has also been amended to update and correct references to the Office of Diversity and Economic Opportunity (ODEO), the procedures for filing and processing complaints alleging disability discrimination in FDIC programs or activities and denial of access to EIT. Moreover, the section has been amended to shorten the time period during which the FDIC must reach a finding with respect to a complaint alleging discrimination on the basis of disability in FDIC programs and activities and denial of access to EIT from 180 to 120 days.
This section has been amended to include a reference to EIT and section 508.
This final rule takes effect 30 days after the date of its publication in the
The final rule does not involve any collections of information under the Paperwork Reduction Act (44 U.S.C. 3501
Pursuant to 5 U.S.C. 605(b) the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small businesses within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601
The FDIC has determined that the final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
Section 804 of the Small Business Regulatory Flexibility Enforcement Fairness Act (“SBREFA”), 5 U.S.C. 801
Access, Civil rights, Electronic and information technology, Equal employment opportunity, Federal building and facilities, Individuals with disabilities.
12 U.S.C. 1819(a); 29 U.S.C. 794d.
(a) One purpose of this part is to implement the spirit of section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act) as amended by section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 and the Workforce Investment Act of 1998. Section 504 prohibits discrimination on the basis of disability in programs and activities conducted by a federal executive agency. Although the FDIC does not believe that Congress contemplated coverage of non-appropriated, independent regulatory agencies such as the FDIC, the FDIC has chosen to promulgate this final regulation to ensure that, to the extent practicable, persons with disabilities are provided with equal access to FDIC programs and activities.
(b) This part is also intended to implement section 508 of the Rehabilitation Act as amended. Section 508 requires each federal agency or department to ensure that the electronic and information technology they procure allows individuals with disabilities access to that technology comparable to the access of those who are not disabled, unless the agency would incur an undue burden.
(a) This part applies to all programs, activities, and electronic and information technology developed, procured, maintained, used or conducted by the FDIC. The following programs and activities involve the direct provision of benefits and services to, or participation by, members of the public:
(1) Attending Board of Directors meetings open to the public and all other public meetings;
(2) Making inquiries or filing complaints at the FDIC Office of Legislative Affairs and Office of Public Affairs;
(3) Using the FDIC library in Washington, DC;
(4) Using the FDIC Web site on the Internet;
(5) Visiting an insured bank at which they conducted business (or an alternative liquidation site selected by the FDIC) and which has become insolvent, or been purchased by another bank under FDIC supervision, for the purpose of:
(i) Collecting FDIC checks for the insured amount of their deposits previously held in such bank; and/or
(ii) Discussing with FDIC representatives matters related to the repayment of debts which they
(6) Seeking employment with the FDIC;
(b) This regulation governs the conduct of FDIC personnel in their interaction with employees of insured banks and employees of other state or federal agencies while discharging the FDIC's statutory obligations as insurer and/or receiver of financial institutions. It does not apply to financial institutions insured by the FDIC.
(c) Although application for employment and employment with the FDIC are programs and activities of the FDIC for purposes of this regulation, they shall be governed only by the standards set forth in § 352.6 of this part.
For purposes of this part, the term—
(a) “Auxiliary aids” means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, the FDIC programs or activities, and Electronic and Information Technology set forth in § 352.2.
(b) “Electronic and Information Technology” (“EIT”) has the same meaning as “information technology” except EIT also includes any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information. The term EIT includes, but is not limited to, telecommunication products (such as telephones), information kiosks and transaction machines, worldwide web sites, multimedia, and office equipment (such as copiers and fax machines).
(c) “Facility” means all or any portion of buildings, structures, equipment, roads, walks, parking lots and other real or personal property. As used in this definition, “personal property” means only furniture, carpeting and similar features not considered to be real property.
(d) “Individual with a disability” means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
(e) “Qualified individual with a disability” means—
(1) With respect to any FDIC program or activity in which a person is required to perform services or to achieve a level of accomplishment, an individual with a disability who meets the essential eligibility requirements and can achieve the purpose of the program or activity without modifications in the program or activity that the FDIC can determine on the basis of a written record would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with a disability who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity;
(3) With respect to employment, an individual with a disability as defined in 29 CFR 1630.2(g), which is made applicable to this part by § 352.6.
(f) “Sections 504 and 508” mean sections 504 and 508 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794 and 794d)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955), and the Workforce Investment Act of 1998 (Pub. L. 105-220, 112 Stat. 936). As used in this regulation, sections 504 and 508 shall be applied only to the programs, activities, and EIT conducted by the FDIC as set forth in §§ 352.2 and 352.3(b) of this regulation.
In accordance with section 504 of the Rehabilitation Act, no qualified individual with a disability shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in any program or activity conducted by the FDIC.
(a) In accordance with section 508 of the Rehabilitation Act, the FDIC shall ensure, absent an undue burden, that the electronic and information technology the agency develops, procures, maintains or allows:
(1) Individuals with disabilities who are FDIC employees or applicants to have access to and use of information and data that is comparable to the access to and use of information and data by FDIC employees or applicants who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public seeking information or services from the FDIC to have access to and use of information and data that is comparable to the access to and use of information and data by members of the public who are not individuals with disabilities.
(b) When development or procurement of electronic and information technology that meets the standards published by the Architectural and Transportation Barriers Compliance Board, 36 CFR 1194, would pose an undue burden, the FDIC shall provide individuals with disabilities covered by paragraph (a) of this section with the information and data by an alternative means of access that allows the individuals to use the information and data.
No qualified individual with a disability shall, on the basis of that disability, be subjected to discrimination in employment in any program or activity conducted by the FDIC. The definitions, requirements, and procedures (including those pertaining to employment discrimination complaints) of sections 501 of the Rehabilitation Act of 1973, as established in 29 CFR parts 1614 and 1630, shall apply to employment in the FDIC.
The FDIC shall operate each of the programs or activities set forth in § 352.2 of this part so that when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities.
Each building or part of a building, whether newly constructed, or substantially altered, in which FDIC programs or activities will be conducted, shall be designed, constructed or altered so as to be readily accessible to, and usable by, individuals with disabilities.
(a) The FDIC shall take appropriate steps to ensure effective communication with participants in FDIC programs, activities and EIT.
(1) The FDIC shall furnish appropriate auxiliary aids where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, the FDIC programs or activities.
(i) In determining what type of auxiliary aid is necessary, the FDIC shall give primary consideration to any reasonable requests of the individual with a disability.
(ii) The FDIC need not provide individually prescribed devices, readers
(2) Where the FDIC communicates by telephone, it shall use telecommunications devices for deaf persons (TDD's) or equally effective telecommunication systems with hearing impaired participants and beneficiaries.
(b) The FDIC shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, facilities and EIT. Interested persons may obtain such information by calling, writing or visiting the FDIC Office of Diversity and Economic Opportunity (ODEO), located at 801 17th Street, NW., Washington, DC 20434. The ODEO telephone number is (202) 416-4000 and (202) 416-2487 (TDD).
(c) The FDIC shall provide information at a primary entrance to each of its facilities where programs or activities are conducted, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(a)
(b)
(c)
(d) If the FDIC receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complainant to the appropriate government entity.
(e)
(1) A finding regarding the alleged violations;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(f) Appeals of the findings or remedies must be filed by the complainant within 30 days of receipt from the FDIC of the letter required by § 352.10 (e). The FDIC may extend this time for good cause.
(g) Timely appeals shall be accepted and processed by the FDIC Chairman or ODEO Director.
(h) The FDIC Chairman or ODEO Director shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the FDIC Chairman or ODEO Director determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make a determination on the appeal.
(i) The time limits set forth in (e) and (h) above may be extended for an individual case when the FDIC Chairman or ODEO Director determines that there is good cause, based on the particular circumstances of that case.
(j) The FDIC may delegate its authority for conducting complaint investigations to other federal agencies or independent contractors, except that the authority for making the final determination may not be delegated.
The FDIC shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the FDIC, and make such information available to them in such manner as the Chairman or designee finds necessary to apprise such persons of the protections against discrimination under section 504 or technology access provided under section 508 and this regulation.
By order of the Board of Directors.
Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD), applicable to all Lockheed Model L-1011 series airplanes, that currently requires the implementation of a corrosion prevention and control program either by accomplishing specific tasks or by revising the maintenance inspection program to include such a program. This action
Effective June 17, 2004.
The incorporation by reference of Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” including Revision D, Appendices A, B, C, and D, dated August 15, 1999, as listed in the regulations, is approved by the Director of the Federal Register as of June 17, 2004.
The incorporation by reference of Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” dated March 15, 1991, including “Errata Sheet, LR 31889, Corrosion Prevention and Control Program, TriStar L-1011,” issued September 29, 1992; as listed in the regulations, was approved previously by the Director of the Federal Register as of December 17, 1993 (58 FR 60775, November 18, 1993).
The service information referenced in this AD may be obtained from Lockheed Martin Aircraft & Logistics Centers, 120 Orion Street, Greenville, South Carolina 29605. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Carl Gray, Aerospace Engineer, Airframe and Propulsion Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone (770) 703-6031; fax (770) 703-6097.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 93-20-03, amendment 39-8710 (58 FR 60775, November 18, 1993), which is applicable to all Lockheed Model L-1011 series airplanes, was published in the
Interested persons have had an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received. The sole commenter, the manufacturer, requests that certain paragraphs of the proposed AD be revised to correct and to convey the intent of the AD.
The commenter suggests rewording paragraph (c)(1) of the proposed AD as follows:
(1) Accomplish corrosion tasks C-55-320-05 Note 4 and C-55-330-05 Note 1, per Revision D of the Document. Thereafter, accomplish these corrosion tasks at intervals not to exceed 5 years.
We agree with the request, for the reasons provided by the commenter. Although AD 93-20-03 is superseded by this AD, its requirements are restated in paragraphs (a) and (b) of this AD. Paragraph (c)(1) of this final rule has been revised accordingly.
The commenter suggests rewording paragraph (c)(2) of the proposed AD as follows:
(2) Accomplish corrosion task C-57-540-02 Note 5 per Revision D of the Document. Thereafter, accomplish this corrosion task at intervals not to exceed 5 years.
We agree with the request, for the reasons provided by the commenter and as discussed previously. Paragraph (c)(2) of this final rule has been revised accordingly.
The commenter suggests rewording paragraph (c)(3) of the proposed AD as follows:
(3) Accomplish corrosion task C-57-530-04 Note 3 per revision D of the Document. Thereafter, accomplish this corrosion task at intervals not to exceed 5 years.
We agree with the request, for the reasons provided by the commenter and as discussed previously. Although AD 93-20-03 is superseded by this AD, its requirements are restated in paragraphs (a) and (b) of this AD. It is therefore necessary only to refer to Note 3 in paragraph (c). Paragraph (c)(3) of this final rule has been revised accordingly.
The commenter requests that paragraph (d) of the proposed AD be revised as follows:
(d) . . . ., in accordance with the procedures specified in Task C-55-350-01 Note 1 of Revision D of the Document. Thereafter, repeat this inspection at intervals not to exceed 15 years.
We agree with the request for the reasons provided by the commenter and as discussed previously. Paragraph (d) of this final rule has been revised accordingly.
The commenter requests that paragraph (j) of the proposed AD be revised to refer to Revision “D” (instead of Revision “4”) of the Document. The commenter considers this a typographical error. We agree. This final rule has been revised accordingly.
The FAA has changed all references to a “detailed visual inspection” in the existing AD to “detailed inspection” in this action.
After careful review of the available data, including the comments noted above, we have determined that air safety and the public interest require the adoption of the rule with the changes previously described. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
There are approximately 187 Lockheed Model L-1011 series airplanes of the affected design in the worldwide fleet. We estimate that 117 airplanes of U.S. registry will be affected by this AD.
The actions that are currently required by AD 93-20-03 take about 20 work hours per inspection to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $152,100, or $1,300 per airplane, per inspection cycle.
The new visual inspections required by this AD will take about 249 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $1,893,645, or $16,185 per airplane.
Revising the maintenance inspection program, if accomplished, would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this action is estimated to be $65 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent structural failure of the airplane due to corrosion, accomplish the following:
This AD refers to Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” dated March 15, 1991, including “Errata Sheet, LR 31889, Corrosion Prevention and Control Program, TriStar L-1011,” issued September 29, 1992; and Revision D, dated August 15, 1999 (hereafter, those publications are referred to as “the Document”), for corrosion tasks, definitions of corrosion levels, compliance times, and reporting requirements. In addition, this AD specifies inspection and reporting requirements beyond those included in the Document. Where there are differences between the AD and the Document, the AD prevails.
As used throughout this AD, the term “the FAA” is defined differently for different operators, as follows: For those operators complying with paragraph (a) or (c) of this AD, “the FAA” is defined as “the Manager of the Atlanta Aircraft Certification Office (ACO).” For those operators operating under 14 CFR Part 121 or 129, and complying with paragraph (b) or (d) of this AD, “the FAA” is defined as “the cognizant Maintenance Inspector at the appropriate FAA Flight Standards office.”
(a) Except as provided in paragraph (b) of this AD, complete each of the corrosion tasks specified in Section 4 of the Document in accordance with the procedures of the Document, and the schedule specified in paragraphs (a)(1) and (a)(2) of this AD. Corrosion task numbers C-32-710-01 (nose landing gear) and C-32-730-01 (main landing gear, left and right) are not required to be accomplished as part of this AD.
A “corrosion task,” as defined in Section 4 of the Document, includes inspections; procedures for a corrective action, including repairs, under identified circumstances; application of corrosion inhibitors; and other follow-on actions.
Corrosion tasks completed in accordance with the Document before the effective date of this AD may be credited for compliance with the initial corrosion task requirements of paragraph (a)(1) of this AD.
Where non-destructive inspection (NDI) methods are employed, in accordance with Section 4 of the Document, the standards and procedures used must be acceptable to the Administrator in accordance with 14 CFR 43.13.
(1) Complete the initial corrosion task of each “airplane area” specified in Section 4 of the Document as follows:
(i) For airplane areas that have not yet exceeded the “implementation age” (IA) for a corrosion task as of one year after December 17, 1993 (the effective date of AD 93-20-03, amendment 39-8710): Initial compliance must occur no later than the IA plus the repeat (R) interval.
(ii) For airplane areas that have exceeded the IA for a particular corrosion task, as of one year after December 17, 1993: Initial compliance must occur within one R interval for that task, measured from a date one year after December 17, 1993.
(iii) For airplanes that have reached or exceeded 20 years after the date of manufacture as of one year after December 17, 1993: Initial compliance must occur for each corrosion task within one R interval for that task, but not to exceed 6 years, measured from a date one year after December 17, 1993, whichever occurs first.
(iv) Notwithstanding paragraph (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this AD, for airplane areas that exceed the IA for that area, the operator must accomplish the initial corrosion task for each such area at a minimum rate equivalent to one such area per year, beginning one year after December 17, 1993.
This paragraph does not require inspection of any area that has not exceeded the IA for that area.
This minimum rate requirement may cause an undue hardship on some small operators. In those circumstances, requests for adjustments to the implementation rate will be evaluated on a case-by-case basis under the provisions of paragraph (h) of this AD.
(2) Repeat each corrosion task at a time interval not to exceed the R interval specified in the Document for that task.
(b) As an alternative to the requirements of paragraph (a) of this AD: Prior to one year after December 17, 1993, revise the FAA-approved maintenance inspection program to include the corrosion prevention and control program specified in the Document; or to include an equivalent program that is approved by the FAA. In all cases, the initial corrosion task for each airplane area must be completed in accordance with the compliance schedule specified in paragraph (a)(1) of this AD. Corrosion task numbers C-32-710-01 (nose landing gear) and C-32-730-01 (main landing gear, left and right) are not required to be accomplished as part of this AD.
(1) Any operator complying with paragraph (b) of this AD may use an alternative recordkeeping method to that otherwise required by 14 CFR 91.417 or 121.380 for the actions required by this AD, provided it is approved by the FAA and is included in a revision to the FAA-approved maintenance inspection program.
(2) Subsequent to the accomplishment of the initial corrosion task, extensions of R intervals specified in the Document must be approved by the FAA.
(c) Except as provided in paragraph (e) of this AD, within 5 years after the effective date of this AD: Complete each of the corrosion tasks at the times specified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD in accordance with the procedures specified in the Document. (Corrosion tasks number C-32-710-01 (nose landing gear) and C-32-730-01 (main landing gear, left and right) are not required to be accomplished as part of this AD.)
A “corrosion task,” as defined in Section 4 of the Document, includes inspections; procedures for a corrective action, including repairs, under identified circumstances; application of corrosion inhibitors; and other follow-on actions.
Corrosion tasks completed in accordance with the Document before the effective date of this AD may be credited for compliance with the initial corrosion task requirements of paragraph (a)(1) of this AD.
Where non-destructive inspection (NDI) methods are employed, in accordance with Section 4 of the Document, the standards and procedures used must be acceptable to the Administrator in accordance with FAR Section 43.13.
(1) Accomplish corrosion tasks C-55-320-05, Note 4; and C-55-330-05, Note 1; per Revision D of the Document. Thereafter, accomplish these corrosion tasks at intervals not to exceed 5 years.
(2) Accomplish corrosion task C-57-540-02, Note 5, per Revision D of the Document. Thereafter, accomplish this corrosion task at intervals not to exceed 5 years.
(3) Accomplish corrosion task C-57-530-04, Note 3, per Revision D of the Document. Thereafter, accomplish this corrosion task at intervals not to exceed 5 years.
(4) Accomplish corrosion task C-53-310-03, per Revision D of the Document. Thereafter, accomplish this corrosion task at intervals not to exceed 10 years.
(d) Within 15 years' time-in-service, or 5 years after the effective date of this AD, whichever occurs later: Conduct a free-play inspection of the horizontal stabilizer pivot bearing, disassemble ALL horizontal stabilizer pivot bearing assemblies, and perform a detailed inspection of the pivot bearing assembly components to detect corrosion, in accordance with the procedures specified in Task C-55-350-01, Note 1, of Revision D of the Document. Thereafter, repeat this inspection at intervals not to exceed 15 years.
This paragraph does not require inspection of any area that has not exceeded the IA for that area.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(e) As an alternative to the requirements of paragraphs (c) and (d) of this AD: Within 90 days after the effective date of this AD, revise the FAA-approved maintenance program to incorporate and implement Revision D of Lockheed Document Number LR 31889, “Corrosion and Protection Control Program, TriStar L-1011,” dated August 15, 1999.
(f) To accommodate unanticipated scheduling requirements of paragraph (c) or (d) of this AD, it is acceptable for an R interval to be increased by up to 10%, but not to exceed 6 months. The FAA must be informed, in writing, of any such extension within 30 days after such adjustment of the schedule.
(g)(1) If, during any inspection conducted in accordance with this AD, Level 3 corrosion is determined to exist in any airplane area, accomplish the actions specified in either paragraph (g)(1)(i) or (g)(1)(ii) of this AD within 7 days after such determination. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(i) Submit a report of that determination to the FAA and complete the corrosion task in the affected areas on all Model L-1011 series airplanes in the operator's fleet; or
(ii) Submit to the FAA for approval one of the following:
(A) A proposed schedule for performing the corrosion tasks in the affected areas on the remaining Model L-1011 series airplanes in the operator's fleet, which is adequate to ensure that any other Level 3 corrosion is detected in a timely manner, along with substantiating data for that schedule; or
(B) Data substantiating that the Level 3 corrosion found is an isolated occurrence.
Notwithstanding the provisions of Section 1 of the Document, which would permit corrosion that otherwise meets the definition of Level 3 corrosion (
(2) The FAA may impose schedules other than those proposed, upon finding that such changes are necessary to ensure that any other Level 3 corrosion is detected in a timely manner.
(3) Within the time schedule approved under paragraph (g)(1) or (g)(2) of this AD, accomplish the corrosion tasks in the affected areas of the remaining Model L-1011 series airplanes in the operator's fleet.
(h) If, as a result of any inspection after an initial inspection conducted in accordance
(i) Before any operator places into service any airplane subject to the requirements of this AD, a schedule for the accomplishment of corrosion tasks required by this AD must be established in accordance with paragraph (i)(1) or (i)(2) of this AD, as applicable:
(1) For airplanes previously maintained in accordance with this AD, the first corrosion task in each airplane area to be performed by the new operator must be accomplished in accordance with the previous operator's schedule or with the new operator's schedule, whichever would result in the earlier accomplishment date for that task. After each corrosion task has been performed once, each subsequent task must be performed in accordance with the new operator's schedule.
(2) For airplanes that have not been previously maintained in accordance with this AD, the first corrosion task for each airplane area to be performed by the new operator must be accomplished prior to further flight or in accordance with a schedule approved by the FAA.
(j) Reports of Level 2 and Level 3 corrosion must be submitted at least quarterly to Lockheed Martin Aircraft & Logistics Centers in accordance with Section 5 of Revision D of the Document.
Reporting of Level 2 and Level 3 corrosion found as a result of any opportunity inspections is highly desirable.
(k) In accordance with 14 CFR 39.19, the Manager, Atlanta ACO, FAA, is authorized to approve alternative methods of compliance for this AD.
(l) Except as otherwise specified in this AD, the actions must be done in accordance with Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” dated March 15, 1991, including “Errata Sheet, LR 31889, Corrosion Prevention and Control Program, TriStar L-1011,” issued September 29, 1992; and Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” including Appendices A, B, C, and D, Revision D, dated August 15, 1999; as applicable. Revision D contains the following effective pages (the revision level of this document is listed only on the title pages of this document):
(1) The incorporation by reference of Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” including Appendices A, B, C, and D, Revision D, dated August 15, 1999; is approved by the Director of the Federal Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(2) The incorporation by reference of Lockheed Document Number LR 31889, “Corrosion Prevention and Control Program, TriStar L-1011,” dated March 15, 1991, including “Errata Sheet, LR 31889, Corrosion Prevention and Control Program, TriStar L-1011,” issued September 29, 1992; was approved previously by the Director of the Federal Register as of December 17, 1993 (58 FR 60775, November 18, 1993).
(3) Copies may be obtained from Lockheed Martin Aircraft & Logistics Center, 120 Orion Street, Greenville, South Carolina 29605. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(m) This amendment becomes effective on June 17, 2004.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Pennfield Oil Co. The ANADA provides for the use of single-ingredient, chlortetracycline and decoquinate Type A medicated articles to make two-way combination drug Type B and Type C medicated feeds for calves, beef and nonlactating dairy cattle.
This rule is effective May 13, 2004.
Lonnie W. Luther, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 301-827-8549, e-mail:
Pennfield Oil Co., 14040 Industrial Rd., Omaha, NE 68144, filed ANADA 200-359 for use of PENNCHLOR (chlortetracycline) and DECCOX (decoquinate) single-ingredient Type A medicated articles to make two-way combination drug Type B and Type C medicated feeds for calves, beef and nonlactating dairy cattle. Pennfield Oil Co.'s ANADA 200-359 is approved as a generic copy of Alpharma, Inc.'s NADA 141-147. The ANADA is approved as of March 19, 2004, and the regulations are amended in 21 CFR 558.195 to reflect the approval. The basis of approval is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs, Animal feeds.
21 U.S.C. 360b, 371.
Mine Safety and Health Administration (MSHA), Labor.
Final rule.
We are amending our regulations to: reflect organizational changes and updated filing procedures; correct clerical errors; and make conforming changes to rule text.
May 13, 2004.
Marvin W. Nichols, Jr., Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Blvd., Room 2313, Arlington, Virginia 22209-3939,
This final rule updates 30 CFR part 50 to reflect current mailing addresses and office closings. Additionally, the final rule recognizes our practice of providing the public with electronic access to forms and allowing mine operators to submit reports electronically. Finally, the rule corrects errors and makes a conforming change in the rule text.
Because this final rule deals with agency management and procedures, the notice and comment provisions of the Administrative Procedure Act do not apply pursuant to 5 U.S.C. 553(a)(2) and (b)(3)(A), and the usual 30-day delay in the effective date is not required.
This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This final rule is not a “regulatory action” under section 3 of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. The rule is an administrative action reflecting organizational and procedural changes in a federal agency. Because the rule is limited to agency organization and management, it falls within the exclusion set forth in section 3(d)(3) of the Executive Order.
For purposes of the Unfunded Mandates Reform Act of 1995, this rule does not include any Federal mandate that may result in increased expenditures by State, local, or tribal governments, or by the private sector.
Investigations, Mine safety and health, Reporting and record keeping requirements.
29 U.S.C. 577a; 30 U.S.C. 951, 957, 961.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Final rule; non-approval of amendment.
We are not approving an amendment to the Kentucky regulatory program (the “Kentucky program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky transferred $3,000,000 from the Kentucky Bond Pool Fund (the Fund) on June 19, 2003, and $840,000 on March 1, 2004, to the Commonwealth's General Fund for the 2002-2003 fiscal year.
May 13, 2004.
William J. Kovacic, Telephone: (859) 260-8400. Internet address:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval in the May 18, 1982,
By telefax dated March 20, 2002, Kentucky asked us to informally review the proposed transfer of $3,000,000 from the Fund to its General Fund (Administrative Record No. KY-1528). By letter dated March 20, 2002, we expressed concern about the transfer and directed Kentucky to submit the amendment formally. We also advised Kentucky that under 30 CFR 732.17(g), the proposed transfer could not take effect until approved by OSM as an amendment to the approved State program (Administrative Record No. KY-1528). On March 18, 2003, we sent a second letter to Kentucky stating that we had become aware of the proposed transfer of funds in House Bill 269, which had been recently passed by the Kentucky General Assembly (Administrative Record No. KY-1575). We reiterated our concerns with the transfer and referred to our letter dated March 20, 2002. We emphasized that “no such change to laws or regulations shall take effect for purposes of a State program until approved as an amendment.”
By letter dated May 22, 2003, Kentucky sent us an amendment to its program (Administrative Record No. KY-1580) under SMCRA (30 U.S.C. 1201
By letter dated July 10, 2003, we requested additional information from Kentucky in the form of a financial analysis (Administrative Record No. KY-1584). We asked that the analysis specifically demonstrate that the transfer of funds would not adversely impact the Fund's ability to complete the reclamation plan for any area which may be in default at any time as required by 30 CFR 800.11(e). By letter dated August 14, 2003, Kentucky responded by stating the Madison Consulting Group would perform an actuarial review of the Fund (Administrative Record No. KY-1599). By letter dated March 3, 2004, the Department for Natural Resources (formerly the Department for Surface Mining Reclamation and Enforcement) transmitted the Kentucky Bond Pool Actuarial Report to us (Administrative Record No. KY-1615).
The actuarial review covers the time period July 1, 2000, through June 30, 2003, and takes into account that $3,000,000 was transferred from the Fund on June 19, 2003, with an additional $840,000 to be transferred from the Fund on March 1, 2004. The full text is available for you to read at the locations listed above at
1. Should be able to “reasonably withstand the failure of any two of its member companies” to be actuarially sound and viable on a long-term basis (p. 7);
2. Is “currently not able to reasonably provide for the ‘two failure’ funding scenario up to a 75 percent confidence level” (p. 8);
3. Needs to increase its assets “so as to provide for potential liabilities and future growth” (p. 8); and
4. Is in a less favorable financial situation than the last analysis completed for the period ending June 30, 2000 (p. 8).
We announced receipt of the proposed amendment in the July 16, 2003,
The additional information in the form of the actuarial analysis report was announced in the March 30, 2004,
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.
Kentucky transferred $3,000,000 from the Fund established in KRS 350.700 to its General Fund on June 19, 2003, and an additional $840,000 on March 1, 2004. Neither of these transfers was submitted to OSM prior to implementation in accordance with 30 CFR 732.17(g). Section 509(c) of SMCRA and the Federal regulations at 30 CFR 800.11(e) authorize OSM to approve an alternative bonding system if that system achieves the objectives and purposes of the Federal bonding system. Under this authority, OSM approved the provisions of KRS 350.700 on July 18, 1986 (51 FR 26002), and March 9, 1987 (52 FR 7132). OSM also approved, in part, revisions to the Fund on August 18, 1992 (57 FR 37086).
In the July 18, 1986, notice, we approved Kentucky's bond pool as established in Senate Bill (SB) 130. The provisions of SB 130 stipulated that bond pool monies would be collected and placed in an interest-bearing account and used for the following purposes only: (1) To reclaim permit areas covered by the Fund in the event of bond forfeiture; (2) to cover administrative costs of the Fund; (3) to fund audits and actuarial studies required for the Fund; and (4) to cover operating and legal expenses of the bond pool commission. In our approval, we noted that 30 CFR 800.11(e) authorizes approval of an alternate bonding system (ABS) if the regulatory authority will have available sufficient money to complete the reclamation plan for any areas in default at any time and if the ABS provides an economic incentive for the permittee to comply with all reclamation provisions. We found that the Kentucky ABS achieved the objectives and purposes of Section 509 of SMCRA in that it provided for funding in an amount sufficient to ensure the completion of the reclamation plan and it did not alter the approved Kentucky requirements for liability under the bond for the mining operation and the operator's liability period. We also noted that the Fund should accrue at a rate as to provide sufficient opportunity to observe the operation of the Fund to determine the adequacy of amounts and fees. We determined that the Fund should be sufficient to supplement reduced operator bonds to the extent necessary to reclaim defaulted sites to standards in the reclamation plan, at least until such time as there is sufficient data available to determine the adequacy of the program. If the Fund was found to be inadequate to supplement member bonds in the event of member default on reclamation obligations, or could not replenish itself at a sufficient rate to avoid delays in reclamation of forfeited sites, we would require an adjustment in the Fund limits and/or fees collected for the Fund (51 FR 26004-5). Subsequent revisions to Kentucky's bond pool provisions did not alter the basis for our original approval.
Based on our review and the findings presented in the Kentucky Bond Pool Actuarial Report, we find that Kentucky's transfer of funds in the amount of $3,840,000 violates the basis for our 1986 approval by directing funds to other nonapproved uses. Further, such transfers are not consistent with the requirements of SMCRA and the Federal regulations at 30 CFR 800.11(e) that require that the ABS ensures that the regulatory authority has sufficient funds available to complete the reclamation plan for any areas which may be in default at any time. Therefore, we cannot approve the amendment. The transfer of funds seriously jeopardizes Kentucky's ability to provide for the completion of reclamation plans as required by the Federal regulations and represents a significant departure from the terms of OSM's approvals of Kentucky's alternative bonding system on July 18, 1986.
To avoid any action required by 30 CFR part 732, we are therefore requesting that Kentucky do the following. Within 60 days of the date of publication of this decision in the
We solicited public comments on July 16, 2003, and provided an opportunity for a public hearing on the amendment. Two commenters responded. Because no one requested an opportunity to speak, a hearing was not held. Upon receipt of the actuarial study, we reopened the public comment period on March 30, 2004, for fifteen days (69 FR 16511). Two commenters responded.
The Coal Operators & Associates, Inc. (COA) submitted comments by letter dated August 6, 2003 (Administrative Record No. KY-1597). The COA encourages OSM to disapprove the transfer of $3,840,000 from the Fund to the General Fund because such transfers could make the bond pool financially unsound in that sufficient funds would not be available to cover any reclamation liability that might be incurred by a permittee's financial failure. We agree and are not approving the amendment as discussed in “OSM's Findings” above. The COA also submitted comments on April 2, 2004, (Administrative Record No. KY-1620) in response to the reopened comment period. The COA reiterated its strong opposition to the transfer of funds and encouraged OSM to disapprove the amendment. As stated earlier, we are not approving the amendment.
The Kentucky Resources Council, Inc. (KRC) submitted comments by an electronic mail message dated August 10, 2003 (Administrative Record No. KY-1598). The KRC states that the amendment must be disapproved unless and until Kentucky can produce an actuarial study demonstrating that the transfer of funds will not adversely affect the ability of the Fund to assure reclamation of all properties insured under the Fund. We agree and based, in part, on the findings presented in the Kentucky Bond Pool Actuarial Report, we are not approving the amendment as discussed in “OSM's Findings” above. The KRC further urges OSM to take prompt action to require that permitted operations obtain individual performance bond coverage if the alternative bonding mechanism fails to meet the requirements of Section 509(c) of SMCRA. Because we have not found the ABS in violation of SMCRA or the Federal regulations, we believe such action would be premature. Finally, the KRC states that in the event that the funds have already been transferred in violation of 30 CFR 733.11 and 732.17, OSM should direct that no further risks be incurred by the State bond pool, including no new operators and no new
Financial Assurance Consulting Services (FACS) submitted comments on April 14, 2004 (Administrative Record No. KY-1622), in response to the reopened comment period. FACS recommends that OSM not approve the amendment and offers four reasons in support of its recommendation. They are: (1) The proposed transfer of funds is not in accordance with Federal regulations and further erodes the bond pool not deemed currently sufficient by the actuarial report; (2) approval of the transfer would set a precedent that could jeopardize the integrity of other bonding systems approved by OSM, and may result in additional transfers on monies if legislatures view bond pools as an available source of funds; (3) Kentucky's bond pool funds must be available to the regulatory authority in the same manner conventional bonds are to guarantee reclamation, as required by SMCRA (The transfer of funds jeopardizes that availability.); and (4) the integrity of the Kentucky Fund must be protected and Kentucky should be required to do so. Kentucky should be required to reimburse the Fund for the amount of monies transferred. Also, FACS recommends a program amendment to assure that bond monies are not jeopardized, and suggests that an insured trust/escrow account be substituted for the current trust and agency account. Further, FACS recommends that OSM require Kentucky to implement some kind of procedure or mechanism for having the legislature reimburse the bond pool fund for monies already transferred. In response, we note that because we have not found the ABS in violation of SMCRA or the Federal regulations, we believe any actions such as these would be premature. Otherwise, however, we agree on all points and are not approving the amendments as discussed in “OSM's Findings” above. We are also requesting that Kentucky replenish the Fund in the amount of the $3,840,000.
According to 30 CFR 732.17(h)(11)(i), on July 16, 2003, we solicited comments on the amendment submitted on May 22, 2003, from various Federal agencies with an actual or potential interest in the Kentucky program. Two commenters responded. By letter dated July 28, 2003, the Department of Labor, Mine Safety and Health Administration, commented that the proposed amendment had no apparent impact on its program (Administrative Record No. KY-1596). By an electronic mail message dated July 31, 2003, the U.S. Fish and Wildlife Service commented that it was concerned that Kentucky's proposed transfer of funds from the Bond Pool Fund to the General Fund sets “an extremely bad precedence for future activities of this nature” (Administrative Record No. KY-1595). We agree and are not approving the amendment as discussed in “OSM's Findings” above.
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251
Based on the above findings, we are not approving the amendment as submitted by Kentucky on May 22, 2003. We are requesting that within 60 days of publication of this decision in the
To implement this decision, we are amending the Federal regulations at 30 CFR part 917 which codify decisions concerning the Kentucky program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that Kentucky's program demonstrate that it has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Kentucky program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Kentucky to enforce only approved provisions.
This rule does not have takings implications that warrant the preparation of a takings implication assessment. This determination is based on an analysis of the action being taken by OSM. Our decision not to approve the State program amendment and, therefore, the transfer of $3,840,000 from the Fund to the Commonwealth's General Fund will not affect the use or value of private property within the meaning of Executive Order 12630.
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is our decision on a State regulatory program and does not involve a Federal regulation involving Indian lands.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
For the reasons previously stated, this rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
For the reasons previously stated, this rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
(c) The amendment to Kentucky's program transferring $3,840,000 from the Kentucky Bond Pool Fund to the Commonwealth's General Fund for the 2002-2003 fiscal year is not approved. The use of the Fund to provide new financial guarantees is hereby suspended.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is announcing it is approving a revision to the Missouri State Implementation Plan (SIP) which updates changes to the non-regulatory portion of the Inspection and Maintenance (I/M) Program for the St. Louis area. The original SIP for the centralized St. Louis I/M program was approved in 2000 and the program was implemented in April 2000. Due to a regulatory amendment, the SIP was revised in 2002. At that time, the non-regulatory portion of the SIP was not revised. Approval of this revision will ensure consistency between the description of the program included in the approved SIP and the current Missouri program description.
This direct final rule will be effective July 12, 2004, without further notice, unless EPA receives adverse comment by June 14, 2004. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Regional Material in EDocket (RME) ID Number R07-OAR-2004-MO-0001, by one of the following methods:
1. Federal eRulemaking Portal:
2. Agency Web site:
3. E-mail: Alan Banwart
4. Mail: Alan Banwart, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
5. Hand Delivery or Courier: Deliver your comments to Alan Banwart, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Alan Banwart at (913) 551-7819, or by e-mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
A request to revise the non-regulatory portion of the Vehicle Inspection and Maintenance (I/M) SIP for the St. Louis area was submitted to us. The SIP for the St. Louis I/M program was approved in 2000 and the program was implemented in April 2000. Due to a regulatory amendment, the SIP was revised in 2002. At that time, the non-regulatory portion of the SIP was not revised. The non-regulatory portion is the narrative description of the current I/M program. While the narrative description does not change regulatory requirements, some portions are necessary to meet the requirements of the Federal I/M rule. Other portions of the description are for informational purposes and do not address SIP elements required by the Federal rule. This revision will ensure consistency between the program description in the SIP and the current Missouri program description.
The information submitted on October 1, 2003, included a signed
The required public's comments section was submitted to the EPA on August 21, 2003.
On November 5, 2003, MDNR submitted a letter that included the correct material identifying and describing the program that was missing or out-dated from the original submittal. Attachment 2: State of Missouri I/M Rules and Regulations replaced the outdated information with the latest revision of 10 CSR 10-5.375 and 10 CSR 10-5.380. This submittal also included a new title for Attachment 5: State of Missouri I/M Budget: Fiscal Year 2004.
On December 19, 2003, MDNR sent Attachment 7: MOBILE 6 Sample Calculations, to the EPA via email, because the original attachment did not contain any information concerning the calculation.
For clarification, a list of the significant changes between the old and new non-regulatory SIP provisions is provided below.
Updated census population of the counties in I/M area.
The Program now uses MOBILE 6 instead of MOBILE 5b to determine if the performance standard is met.
With MOBILE 6 as the new performance standard model, a comparison with the Gateway Clean Air Program (GCAP) and the Basic EPA Performance Standard was done to show that GCAP was meeting the standard. Here are the results:
This demonstration meets the requirements of 40 CFR 51.372(a)(2). This element was previously approved based on the model applicable at the time of the prior approval in 2000.
Updated number of government agencies and their fleet vehicles in the I/M area.
Phase-in of On-Board Diagnostics II (OBD II) began in January 2003, becoming mandatory in 2005. This replaces the initial OBD system. This revision reflects the revised program approved by EPA.
Minimum expenditure for repairing a failing vehicle in order to receive a waiver in the enhanced area has been increased from $75 to $200 for 1971-1980 vehicles and $200 to $450 for 1981 and newer vehicles. The program description is revised to describe this change.
More detail is given on the requirements of conducting an overt audit. This revision describes the previously approved regulatory amendment.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations and including 40 CFR part 51, subpart S, Inspection and Maintenance Program Requirements.
The EPA is approving the non-regulatory SIP revisions and we are processing this action as a direct final action because the revisions make routine changes to a non-regulatory portion of the SIP which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves a state submission as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state submission describing implementation of a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 12, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency.
Notice of deletion for the Florence Land Recontouring Landfill Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region II Office announces the deletion of the Florence Land Recontouring Landfill Superfund Site (Site) from the National Priorities List (NPL). Within the NPL, this Site is listed as being located in the Township of Florence. However, portions of the Site are also located in the Townships of Mansfield and Springfield, Burlington County, New Jersey. The NPL constitutes appendix B to the
May 13, 2004.
Mark Austin, Remedial Project Manager, New Jersey Remediation Branch, Emergency and Remedial Response Division, U.S. Environmental Protection Agency, Region II, 290 Broadway, 19th Floor, New York, New York 10007-1866, phone: (212) 637-3954; fax: (212) 637-4429; e-mail:
To be deleted from the NPL is: The Florence Land Recontouring Landfill Superfund Site, Townships of Florence, Mansfield, and Springfield, Burlington County, New Jersey.
A Notice of Intent to Delete for the Site was published in the
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O. 12777, 56 FR 54757, 3 CFR., 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Department of Defense (DoD).
Final rule.
DoD has adopted as final, without change, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 827 of the National Defense Authorization Act for Fiscal Year 2003. Section 827 authorizes DoD to enter into multiyear contracts for environmental remediation services for military installations.
May 13, 2004.
Mr. Euclides Barrera, Defense Acquisition Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0296; facsimile (703) 602-0350. Please cite DFARS Case 2003-D004.
DoD published an interim rule at 68 FR 43332 on July 22, 2003, to implement Section 827 of the National Defense Authorization Act for Fiscal Year 2003 (Public Law 107-314). Section 827 amended 10 U.S.C. 2306c to provide authority for DoD to enter into multiyear contracts for environmental remediation services for military installations. Two sources submitted comments on the interim rule. A discussion of the comments is provided below.
1.
2.
3.
4.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Department of Defense (DoD).
Interim rule with request for comments.
DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Sections 826 and 827 of the National Defense Authorization Act for Fiscal Year 2004. Sections 826 and 827 provide exceptions to the domestic source requirements of the Berry Amendment. Section 826 applies to the acquisition of food, specialty metals, and hand or measuring tools needed to support contingency operations or to fulfill other urgent requirements. Section 827 applies to the acquisition of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives.
Effective date: May 13, 2004.
Respondents may submit comments via the Internet at
Respondents that cannot submit comments using either of the above methods may submit comments to: Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. Please cite DFARS Case 2003-D099.
At the end of the comment period, interested parties may view public comments on the Internet at
Ms. Amy Williams, (703) 602-0328.
DFARS 225.7002-1 contains requirements for the acquisition of certain items from domestic sources in accordance with the Berry Amendment (10 U.S.C. 2533a). DFARS 225.7002-2 provides exceptions to these requirements. This interim rule adds new exceptions to DFARS 225.7002-2 to implement Sections 826 and 827 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 826 applies to the acquisition of food, specialty metals, and hand or measuring tools when needed to support contingency operations or when the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency. Section 827 applies to the acquisition of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives. A corresponding change is made to the clause at DFARS 252.225-7012.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Sections 826 and 827 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Sections 826 and 827 provide exceptions to the domestic source requirements of the Berry Amendment (10 U.S.C. 2533a). Section 826 applies to the acquisition of food, specialty metals, and hand or measuring tools needed to support contingency operations or to fulfill other urgent requirements. Section 827 applies to the acquisition of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives. Sections 826 and 827 became effective on November 24, 2003. Comments received in response to this interim rule will be considered in the formation of the final rule.
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
(f) Acquisitions of food, specialty metals, or hand or measuring tools—
(1) In support of contingency operations; or
(2) For which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2.
(k) Acquisitions of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives.
(c) * * *
(3) To waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives;
Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement to update clause dates and references.
May 13, 2004.
Ms. Michele Peterson, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0311; facsimile (703) 602-0350.
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Removal of haddock trip limit.
NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator), is eliminating the daily and maximum haddock trip limits for the groundfish fishery specified at 50 CFR 648.86(a) for the remainder of the 2004 fishing year, through April 30, 2005. Accordingly, there is no trip limit on the amount of haddock that can be harvested or landed for the rest of the fishing year for vessels subject to these regulations. The Regional Administrator has projected that less than 75 percent of the haddock target total allowable catch (TAC) will be harvested for the 2004 fishing year under the restrictive daily possession and trip limits. This action is intended to allow fishermen to catch the haddock TAC, without exceeding the TAC.
Effective May 7, 2004 through April 30, 2005.
Douglas W. Christel, Fishery Policy Analyst, 978-281-9141.
Framework Adjustment 33 to the NE Multispecies Fishery Management Plan (FMP), which became effective May 1, 2000, implemented the current haddock trip limit regulations (65 FR 21658, April 24, 2000). To ensure that haddock landings do not exceed the appropriate target TAC, Framework 33 established a haddock trip limit of 3,000 lb (1,360.8 kg) per NE multispecies day-at-sea (DAS) fished and a maximum trip limit of 30,000 lb (13,608 kg) of haddock for the period May 1 through September 30; and 5,000 lb (2,268 kg) of haddock per DAS and 50,000 lb (22,680 kg) per trip from October 1 through April 30.
The Supplemental Environmental Impact Statement (SEIS) prepared for Amendment 13 to the FMP (Amendment 13) estimated the total target TAC for the Gulf of Maine (GOM) and Georges Bank (GB) haddock stocks during the 2004 fishing year at 29,686 metric tons (mt) (65,445,755 lb), including both U.S. and Canadian landings. The Canadian quota for eastern GB haddock was set at 9,900 mt (21,825,540 lb). Therefore, the U.S. portion of the total target TAC for haddock for the 2004 fishing year is the difference between the entire haddock target TAC and the Canadian quota, or 19,786 mt (43,620,216 lb). This amount includes the target TAC for the GOM and GB haddock stocks as well as a haddock TAC of 5,100 mt (11,243,460 lb) specific to the Eastern U.S./Canada Management Area.
Based on recent historical fishing practices and an assessment of the impacts of management measures contained within Amendment 13 on haddock landings during the 2004 fishing year, the Regional Administrator has projected that less than 75 percent of the haddock target TAC for the 2004 fishing year (14,840 mt or 32,715,162 lb) will be harvested by April 30, 2005, under the restrictive daily possession and trip limits. In addition, this projection indicates that eliminating the daily and maximum trip limits for haddock would not likely precipitate haddock landings reaching the Eastern U.S./Canada Management Area haddock TAC of 5,100 mt (11,243,460 lb). The Regional Administrator has therefore determined that eliminating the 3,000-lb (1,360.8-kg) and 5,000-lb (2,268-kg) daily haddock possession limits as well as the associated 30,000-lb (13,608-kg) and 50,000-lb (22,680-kg) per trip possession limits for May 1 through September 30, 2004, and October 1, 2004 through April 30, 2005, respectively, will ensure that at least 75 percent of the target TAC will be harvested for the 2004 fishing year without exceeding the haddock target TAC or the TAC for the Eastern U.S./Canada Management Area. In order to prevent the TAC from being exceeded, the Regional Administrator will monitor haddock landings and may adjust this possession limit again through publication of a notification in the
The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is unnecessary and contrary to the public interest. To further delay the elimination of the haddock trip limits is contrary to the public interest because it would unnecessarily result in wasteful discards and prevent the haddock fishery from achieving optimum yield. Moreover, the public had opportunity to comment on the adjustment of haddock trip limits and its consequences at the time the trip limits were implemented.
This action relieves a restriction by eliminating unnecessary daily and maximum trip limits for haddock for the remainder of the 2004 fishing year. These limits were implemented to prevent the target TAC for haddock from being exceeded. The target TAC for haddock has not been exceeded since 1996. Eliminating these restrictions would allow the fishing industry to harvest at least 75 percent of the target TAC for haddock during the 2004 fishing year. Further, eliminating these restrictions would allow vessels to possess and land haddock in excess of the daily and maximum trip limits, thereby preventing biological waste and providing an opportunity to offset some of the adverse economic impacts resulting from the implementation of Amendment 13 to the NE Multispecies FMP. Therefore, because this rule relieves a restriction pursuant to 5 U.S.C.553(d)(1) of the Administrative Procedure Act, the Assistant Administrator for Fisheries, NOAA, waives the 30-day delay in effectiveness date for this final rule.
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Small Business Administration.
Advance notice of proposed rulemaking.
The U.S. Small Business Administration (SBA) is seeking comments on an issue involving the Historically Underutilized Business Zone (HUBZone) Program and agricultural commodities purchased by the U.S. Department of Agriculture (USDA). According to the Small Business Act, in the case of a contract for the procurement by the USDA of agricultural commodities, a qualified HUBZone Small Business Concern (SBC) may not purchase the commodity from a subcontractor if the subcontractor will supply the commodity in substantially the final form in which it is to be supplied to the Government. The SBA is seeking comments on how to define “substantially the final form” with respect to this statutory requirement.
In addition, on January 28, 2002, the SBA proposed amendments to its regulations that implement the HUBZone Program. SBA believes that one issue in the proposed rule merits further public comment. This issue, which is addressed in this Advance Notice of Proposed Rule Making (ANPRM), relates to a provision in the proposed regulation that defined the term “employee.”
This ANPRM and request for comments are intended to stimulate dialogue on these two issues.
All interested parties are invited to submit written comments. Comments must be received on or before July 12, 2004.
Mail written comments to Michael P. McHale, Associate Administrator for the HUBZone Program (AA/HUB), 409 3rd Street, SW., Washington, DC 20416, via facsimile (202) 205-7167, or submit them via e-mail to
Michael P. McHale, AA/HUB, (202) 205-8885 or
The HUBZone Program was established pursuant to the HUBZone Act of 1997 (HUBZone Act), Title VI of the Small Business Reauthorization Act of 1997, Public Law 105-135, enacted December 2, 1997. The purpose of the HUBZone Program is “to provide for Federal contracting assistance to qualified HUBZone small business concerns.” 15 U.S.C. 657a(a).
On January 28, 2002, the U.S. Small Business Administration (SBA) published a proposed rule (67 FR 8739) to address amendments to the HUBZone Act made by the Small Business Reauthorization Act of 2000 (Reauthorization Act). Those amendments included provisions affecting the eligibility requirements for small business concerns owned by Native American Tribal Governments and Community Development Corporations, and the addition of new HUBZone areas called redesignated areas. The proposed rule addressed these statutory amendments, clarified several regulations, and made some technical changes, including changes to Web site addresses.
The proposed rule also addressed the statutory amendments made by the Reauthorization Act regarding agricultural commodities purchased by the U.S. Department of Agriculture (USDA). The amendment provides that, in connection with a USDA HUBZone procurement of agricultural commodities, or an unrestricted procurement for such commodities in which a qualified HUBZone SBC seeks a price evaluation preference, a qualified HUBZone SBC prime contractor may not purchase a commodity from a subcontractor if the subcontractor will supply the commodity in substantially the final form in which it is to be supplied to the Government. 15 U.S.C. 632(p)(5)(A)(i)(III)(cc). The Reauthorization Act defines “agricultural commodity” as having the same meaning as in section 102 of the Agricultural Trade Act of 1978 ( 7 U.S.C. 5602). According to 7 U.S.C. 5602, an “agricultural commodity” means any agricultural commodity, food, feed, fiber, or livestock (including livestock and insects), and any product thereof.
These statutory provisions were intended to address a perceived inequity that could result due to application of the HUBZone price evaluation preference. Because offers for commodities tend to fall within a narrow range of prices, application of the HUBZone 10% price evaluation preference could create a windfall for a small group of HUBZone SBCs that could, after contract award, simply subcontract to purchase the commodity being procured and sell the commodity to the Government at inflated or other than fair and reasonable prices. Congress believed that this scenario is more problematic when the USDA purchases raw products, as opposed to processed ones. With processed commodities, other variables come into play that can increase the range of costs and hence the range of offers, as well as the need to subcontract.
Thus, a qualified HUBZone SBC prime contractor that is awarded a HUBZone contract to supply commodities to the USDA may subcontract unless the subcontractor or vendor supplies the commodity in “substantially the final form in which it is to be supplied to the Government.” In other words, the qualified HUBZone SBC may subcontract the requirement, but the HUBZone SBC is expected to “process” or somehow change the commodity in some way, rather than merely acting as a pass-through.
SBA is seeking comments addressing the amount or level of processing necessary to satisfy the requirement that the subcontracted product not be in substantially the same form as that supplied to the Government. Specifically, SBA seeks comments relating to whether cleaning, blending, sorting/sizing or bagging a commodity, or any combination of these processes, results in the changed commodity that is contemplated by the statute.
For example, let us assume that the USDA has a requirement for shelled peanuts and a qualified HUBZone SBC bids on the requirement. Which, if any, of the following processes if performed by the HUBZone SBC would sufficiently change the commodity so that it was not in substantially the final form in which
In addition, assume that the qualified HUBZone SBC had received a shipment of shelled and bagged peanuts several months ago, before submitting a bid on the USDA's requirement, and that this shipment was now simply part of the qualified HUBZone SBC's inventory. Would a contract to that qualified HUBZone SBC violate the statute?
Similarly, should the blending of grains or the sizing of peas, beans and lentils be considered sufficient processes by themselves to receive a HUBZone price evaluation preference, or would they have to be in conjunction with other processes (
SBA notes that the HUBZone program is designed to create jobs and promote economic development in distressed areas through small businesses. Where a HUBZone firm makes a capital investment in equipment (
SBA invites comments on this issue regarding agricultural commodities, including: (1) Comments specifically addressing the examples set forth above; (2) other examples pertinent to the issue; (3) comments on definitions for “substantially the final form in which it is to be supplied to the Government;” (4) any other comments relating to the purchase of commodities by the USDA and the HUBZone program; (5) whether SBA needs to define or address the difference between producer and manufacturer as it relates to the purchase of agricultural commodities; and (6) whether SBA should redefine the term subcontract as it relates to agricultural commodities, and if so, how.
In the same proposed rule, SBA also proposed to amend the definition of the term “employee.” Currently, the regulations provide that an “employee” of a concern includes “full-time equivalents.” SBA proposed removing the provision concerning “full-time equivalents” because SBA believes it is confusing. Instead, SBA proposed a definition that would allow persons employed on a full-time or part-time basis to be considered employees of the concern. The rule also stated that SBA would use a “totality of circumstances” analysis to determine whether a person is an employee. The proposed definition is similar to the one used for size, set forth in part 121 of SBA's regulations.
Relatedly, SBA proposed allowing leased or temporary employees to be counted as employees of the concern for purposes of HUBZone eligibility. It is believed that such employees comprise approximately 2-5% of the U.S. work force. Further, small businesses employ approximately 40% of these types of workers. SBA believes that counting leased, temporary and part-time employees as employees for HUBZone eligibility would fulfill the statutory purpose and intent of the HUBZone Act by providing more job opportunities for HUBZone residents, albeit temporary or part-time.
The proposed definition of the term “employee” also stated that volunteers would not be counted. The proposed rule defined a volunteer as a person who receives no compensation for work performed. SBA intended the term compensation to be read broadly and to encompass more than wages. Thus, a person who receives food, housing, or other non-monetary compensation in exchange for work performed would not be considered a volunteer under that proposed regulation. SBA believes that allowing volunteers to be counted as employees would not fulfill the purpose of the HUBZone Act—job creation and economic growth in underutilized communities.
SBA received three comments expressing concerns over the proposed definition of employee. One commenter believed the proposed rule could cause a large-scale shift of workers from full-time equivalent to leased or part-time status with reduced benefits. Another commenter asserted that this change would weaken the nexus between participating firms and the HUBZone areas. In addition, one commenter expressed concern that companies could intentionally exploit the change and hire temporary employees for the sole purpose of obtaining HUBZone certification, or to receive HUBZone contracts. One commenter recommended that, to prevent such abuse, the definition of employee should include a requirement that a certain percentage of HUBZone employees must be paid the same as, or have the same classifications as, non-HUBZone employees. Another commenter believed that an individual should be required to work a certain number of hours before he or she is counted as an employee for the purpose of the 35% HUBZone residency requirement, registering a concern that a company could circumvent the 35% requirement by hiring various HUBZone residents to work one, two or some other number of minimum hours per week. We believe that the approach suggested by this commenter makes sense, and ask for comments as to what minimum number of hours an employee should work to count in determining compliance with the 35% residency requirement.
One commenter stated that using a totality of circumstances test to determine whether part-time employees are bona fide employees and permitting non-monetary compensation to be relevant in the calculation invites arbitrariness. Another commenter stated that the definition of volunteer was too narrow.
Meanwhile, several commenters believed that the proposed rule would create more job opportunities for HUBZone residents and agreed that leased and temporary employees represent a substantial portion of today's workforce. One commenter alleged that several firms are using the current exemption for leased and temporary employees to qualify for the program by claiming only a few employees, when in reality, they have many employees, all of whom are leased and very few of whom live in HUBZone. One commenter supported the proposed rule, but suggested that SBA expand the definition to allow employees of co-employer arrangements to be treated as employees of a HUBZone SBC.
In light of the foregoing, SBA believes it needs further input from the public on the definition of the term “employee” for HUBZone Program purposes. Specifically, SBA encourages comments addressing: (1) Why part-time employees should not be included as “employees;” (2) the impact of including leased and temporary employees as “employees;” (3) whether SBCs understand and properly calculate full-time equivalents; (4) whether employees from co-employer arrangements should be treated as “employees;” and (5) any other issue relevant to the definition of “employee” for HUBZone program purposes.
Comments on any other aspect of the HUBZone Program are also welcome. SBA reminds commenters that all submissions by commenters are available to the public upon request.
Federal Highway Administration (FHWA), DOT.
Supplemental notice of proposed rulemaking (SNPRM); request for comments.
The FHWA proposed in an earlier notice of proposed rulemaking (NPRM) to amend its regulation that governs traffic safety and mobility in highway and street work zones. In response to this NPRM, the FHWA received several comments that raised concerns about the flexibility and scalability in the implementation of the provisions of the proposed rule. The FHWA believes that these comments raise valid points, and has decided to issue this supplemental notice to address the comments received in response to the NPRM.
Comments must be received by June 14, 2004.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit electronically at
Mr. Scott Battles, Office of Transportation Operations, HOTO-1, (202) 366-4372; or Mr. Raymond Cuprill, Office of the Chief Counsel, HCC-30, (202) 366-0791, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Document Management System (DMS) at:
Pursuant to the requirements of section 1051 of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), (Pub. L. 102-240, 105 Stat. 1914; Dec. 18, 1991), the FHWA developed a work zone safety program to improve work zone safety at highway construction sites. The FHWA implemented this program through non-regulatory action by publishing a notice in the
As a first step in considering amending its work zone safety regulation, the FHWA published in the
As a result of the comments received on the ANPRM, the FHWA published a notice of proposed rulemaking (NPRM) on May 7, 2003, at 68 FR 24384 to facilitate consideration of the broader safety and mobility impacts of work zones in a more coordinated and comprehensive manner.
The primary message that the NPRM conveyed was that the trends of increased road construction, growing traffic, increased crashes, and public frustration with work zones call for a more broad-based understanding, examination, and management of the safety and mobility impacts of work zones. The provisions proposed in the NPRM were intended to facilitate consideration and management of the broader safety and mobility impacts of work zones in a more coordinated and comprehensive manner, starting early in project development and continuing through implementation. These provisions would help State Departments of Transportation (DOTs) meet current and future work zone safety and mobility challenges, and serve the needs of the American people.
The provisions proposed in the NPRM were intended to facilitate consideration and management of the broader safety and mobility impacts of work zones in a coordinated and comprehensive manner across project development stages. While most of the respondents agreed with the intent and the concepts proposed in the NPRM, they identified the need for flexibility and scalability in the implementation of the provisions of the proposed rule. They noted that some of the terms used in the proposed rule were ambiguous and lent themselves to subjective interpretation, and that there was a noticeable negative tone in the proposal. Respondents also commented that the documentation requirements in the proposal would impose time and resource burdens on State DOTs. The FHWA is issuing this SNPRM to address these concerns raised by the respondents.
Work zone safety and mobility issues, and the need to update 23 CFR 630, Subpart J, were discussed in the NPRM around the following three key themes:
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• The above stated work zone safety and mobility issues and trends indicate that we need to broaden our perspective on work zones, and be more comprehensive in our understanding, assessment, and management of work zone safety and mobility impacts.
• Over the years, highway professionals have devised and implemented several strategies and innovative practices for minimizing the disruption caused by work zones, while ensuring successful project delivery. However, the current and expected level of investment activity in highway infrastructure (a significant portion of which is for maintenance and reconstruction of existing roadways) implies that increasingly, work will be done near traffic. Therefore, it is important that we broaden our understanding of work zone impacts and develop comprehensive mitigation measures that address both work zone safety and mobility.
• The current regulation has a broadly stated purpose of providing guidance and establishing procedures to ensure that adequate consideration is given to motorists, pedestrians, and construction workers on all Federal-aid construction projects. However, the content of the current regulation is focused primarily on the development of traffic control plans (TCPs), the operation of work zones on two-lane-two-way roadways, and other provisions that address project responsibility, pay items, training, and process review and evaluation.
• The provisions in the current regulation primarily address the issue of traffic control through the work zone itself. At the time this regulation was written (
The FHWA published an NPRM on May 7, 2003, that proposed to facilitate assessment of the broader safety and mobility impacts of work zones in a coordinated and comprehensive manner across project development stages, and development of broader transportation management strategies to minimize these work zone impacts.
The NPRM proposed several key provisions, which were intended to bring about a change in how highway projects are planned, designed and built, so as to account for the safety and mobility of the traveling public and the safety of highway workers. These proposals included the following:
(1) Change the title of 23 CFR 630, Subpart J to “Work Zone Safety and Mobility.”
(2) Change the structure of the regulation to include separate “Policy Level” and “Project Level” provisions, with a clear connection between the two levels.
(3) Allow State transportation departments (hereinafter referred to as “States”) to develop and adopt work zone safety and mobility policies. These policies would support the systematic consideration of the safety and mobility impacts of work zones during project development; and address the safety and mobility needs of all road users, workers, and other affected parties on Federal-aid highway projects.
(4) Retain the current “Training” requirement, and expand it to include transportation management in addition to traffic control related training.
(5) Modify the current “Process Review and Evaluation” requirements to provide flexibility to States with regard to the conduct of the reviews, and the frequency and the type of reviews.
(6) Allow States to analyze work zone crash data to correct deficiencies on projects, and to continually improve work zone practices and procedures. This would also encourage States to collect and analyze work zone mobility data.
(7) Allow States to conduct work zone impacts analysis during project development to better understand individual project characteristics and the associated work zone impacts. This would facilitate better decisionmaking on alternative project options and design strategies, and the development of appropriate work zone impact mitigation measures.
(8) Allow States to develop Transportation Management Plans (TMPs) for projects as determined by the State's policy and the results of the work zone impacts analysis. A TMP would include requirements for a TCP, and if necessary for the project, a Transportation Operations Plan (TOP) and a Public Information and Outreach Plan (PIOP).
(9) Include provisions that would allow States to be more creative and performance oriented in their procurement processes by allowing flexibility to choose either method-based or performance-based specifications for their contracts. In the case of method-based specifications,
We received a substantial number of comments (62 total respondents) in response to the NPRM from both the public sector and private industry. While most of the respondents agreed with the intent and the concepts proposed in the NPRM, they recommended that the proposed provisions be revised and altered so as to make them practical for application in the field. The four major issues that the respondents raised are as follows:
(1) The need for State flexibility and scalability in the implementation of the provisions of the proposed rule.
(2) Some of the terms used in the proposed rule are ambiguous and lend themselves to subjective interpretation.
(3) The negative tone in the proposal with respect to the current state of work zone safety and mobility in general.
(4) The documentation requirements in the proposal would impose additional time and resource burdens on State Departments of Transportation (DOTs).
The issues raised by the respondents made it clear that the language as proposed in the NPRM was inadequate for real-world application. Therefore, in this SNPRM we are proposing to revise the regulatory language to reflect the following three key changes.:
(1) We propose to remove and clarify ambiguous terminology, and make the provisions more positive sounding.
(2) We propose to reorganize the content and soften and clarify the language, and provide clear explanation of the intent of the provisions.
(3) We propose to provide for appropriate room and flexibility to States to address the most critical issues of flexibility, scalability, and documentation needs.
We believe that we have addressed all comments received in response to the NPRM that are within the scope of this rulemaking, and the need to broaden the current thinking with respect to preserving the safety and mobility of our transportation system when performing work on our highways.
The following discussion provides an overview of the comments received in response to the NPRM. While this section provides an overview, the next section provides a detailed analysis and discussion of the comments on specific sections of the NPRM, along with and FHWA's proposed resolution.
We received a total of 62 responses to the docket. About 61 percent of the respondents were from the public sector or represented public sector interests, 26 percent of the respondents were from the private sector or catered to private sector interests, 10 percent of the respondents represented both public and private sector interests, while the remaining 3 percent did not indicate their affiliation.
The break up of the agency types of the different respondents present the following statistics: About 59 percent of the respondents belonged to DOTs (either State or local); 3 percent of the respondents were contractors; 6 percent of the respondents were either private individuals or consultants; 6 percent of the respondents represented private sector equipment/technology providers; 23 percent of the respondents represented trade associations and special interest groups, including the American Traffic Safety Services Association (ATSSA), the American Road Transportation Builders Association (ARTBA) and the Associated General Contractors (AGC) of America; and 3 percent of the respondents did not indicate their agency affiliations.
The respondents represented a good cross-section of job categories, ranging from all aspects of DOT function, to engineering/traffic/safety/design, to construction and utilities.
The American Association of State Highway and Transportation Officials (AASHTO) provided a consolidated response to the NPRM on behalf of its member States. Several State DOTs provided their responses through AASHTO's response, while others submitted their comments individually. In general, AASHTO indicated that it fully supports the goals of increased safety and mobility throughout our Nation's work zones, but that some of the mandatory provisions in the proposed NPRM language would impose additional time, resource and financial burdens on the States and restrict their ability to perform their responsibilities effectively within the available constraints.
This discussion provides a summary of the comments on the NPRM, and provides an overview of what the FHWA proposes to do in response.
Of the 32 percent respondents who were supportive, 3 percent belonged to DOTs, 2 percent were contractors, 3 percent were private individuals and consultants, 6 percent were equipment/technology providers, and 18 percent were from trade associations/special interest groups. These respondents were not necessarily supportive of all the provisions in the individual sections, but rather their overall position on the NPRM was supportive. In fact, many of these respondents provided suggestions on modifications and revised language for specific provisions as they deemed appropriate.
For example, the Maryland State Highway Administration (MD-SHA) concurred with most provisions as proposed in the NPRM, and with the increased emphasis on consideration of work zone safety and mobility during all phases of project development, while providing specific recommendations for changing the language in some of the sections. For instance, they suggested that we include examples of “other affected parties” in § 630.1002, “Purpose.”
Of the 60 percent of respondents who agreed with the intent and concepts proposed but did not agree with the mandatory provisions, 55 percent belonged to DOTs, 2 percent were contractors, 2 percent were from trade associations/special interest groups, and the remaining 1 percent did not indicate their agency affiliation. These respondents expressed support for the intent and general concepts proposed, but also indicated that blanket mandatory requirements should not be imposed to achieve the desired results. For example, many DOTs and the AASHTO commented that the provisions proposed under § 630.1012(b)(1), “Work Zone Impacts Analysis” should be provided as guidance as to what a work zone impacts analysis may entail, rather than requiring all the activities to be performed for all projects.
The overall position of the respondents clearly indicates that the majority of the respondents are supportive of the intent and concepts proposed in the NPRM, but they do not support mandatory requirements. Therefore, in this SNPRM we propose to alter the provisions in order to remove certain mandatory requirements that are overly restrictive. For example, in the SNPRM regulatory language, we are
The major issues raised by the respondents are discussed in the following paragraphs.
For example, the State DOTs of North Dakota, South Dakota, Nebraska, Montana and Idaho commented that the rule needs to differentiate between provisions for “metropolitan” and “rural” areas. They cited that the costs and efforts involved in implementing some of the mobility related provisions will be too prohibitive to justify any benefits in rural areas. Similarly, several States also indicated that the rule needs to distinguish between provisions for “congested” and “non-congested” areas. Further, several respondents indicated that short-term and maintenance/utility type work zones are not very clearly addressed in the NPRM, such as, providing waivers for maintenance/short-term work zones from the provisions in § 630.1012(b)(1), “Work Zone Impacts Analysis,” and § 630.1012(b)(2), “Transportation Management Plan (TMP).”
The FHWA understands the need for such flexibility, which is why the proposed provisions in the NPRM were written in general terms which would allow States to customize the provisions according to their unique operating environments and individual project needs. For example, in § 630.1012(b)(1), “Work Zone Impacts Analysis,” of the NPRM, the language states that the scope and level of detail of the impacts analysis will vary based on the States' policies, and their understanding of the anticipated severity of work zone impacts due to the project. It also provides that if the State determines that a project is expected to have minimal sustained work zone impacts, they may exempt the project from the impacts analysis. However, the language when put in context with the remaining provisions in the section did not clearly indicate that States may exempt specific types of projects from the impacts analysis by providing policy level waivers for those projects. The FHWA proposes to remove the mandatory need for an impacts analysis, which is embedded indirectly in the TMP section of this proposal. We have included such flexibility (where appropriate) in all other sections of this proposal, which are discussed in detail in the following section.
The FHWA agrees with the above observations, and we have either eliminated or clarified these and other ambiguous terms. The details of these revisions are provided in the Discussion of Comments section.
The FHWA would like to clarify our position because we do not mean to imply that the efforts of State DOTs are inadequate, but rather, that the provisions in the current regulation are inadequate to meet current and future work zone safety and mobility issues. We are of the opinion that we need to act now and correct the regulations so that we can meet our responsibility of providing to the American public a safe and efficient transportation system. We have made an attempt to remove any phraseology that conveys a “negative tone” in this supplemental notice.
For example, in § 630.1004, “References” of the NPRM, there is language which implies that the Manual On Uniform Traffic Control Devices (MUTCD)
For example, the Florida Department of Transportation (FDOT) commented that the FHWA should partner with individual States in the review of the State's work zone practices and offer suggestions for improvements rather than create more plans, documents, and data, which may require the creation and maintenance of databases and files.
The FHWA agrees. Our intent was for States to document their decisionmaking steps and rationale during project development, so that they may use that information to ensure smooth and effective project delivery, and as valuable input for planning,
Specifically, the AASHTO noted that the lack of clarity in some of the provisions increased the potential for inconsistent application of the proposed rule by the FHWA Division Offices from State to State.
Several respondents cited the need for FHWA guidance on project classification (small, medium, and large) as applicable to work zone impacts—either in separate guidance documents or in the regulation itself. Subsequently, respondents indicated that the FHWA should develop performance requirements for projects and work zones of different types.
Respondents also indicated that the FHWA should provide additional guidance as to what “work zone impacts analysis” would entail, and that a “pilot” program or project should be developed to test these rules.
The contracting community raised several concerns about the application of “performance specifications,” because the use of performance specifications is in a very nascent stage and that currently available technical information and guidance on this topic is very limited.
In specific response to the lack of clarity in some of the provisions that were proposed in the NPRM, we have clarified the language, and have attempted to provide concise explanations for the modified language that we are proposing in this notice. Although, we are limited by the need for brevity and directness in the rule language. We have provided clear explanations on the implications of the proposed provisions in the preamble. These explanations may be found in the Discussion of comments section which discusses specific comments and the FHWA's proposed resolution on the different sections.
In response to this concern, we would like to assert that maintaining safety is the primary mission of the FHWA, and saving lives and reducing crashes are some of our critical objectives. The provisions proposed in the NPRM were intended to re-emphasize the importance of both traffic and worker safety and, at the same time, convey the notion that preservation of mobility, and construction efficiency and quality are vital to ensuring that we meet the needs of the traveling public during highway construction projects, and provide for a safe and efficient transportation system.
We believe that “safety” and “mobility” are inextricably linked, and that improvement in safety leads to improvement in mobility and vice-versa. For example, improvement in safety reduces the occurrences of traffic incidents, which reduces the resultant incident induced traffic congestion and delays. Similarly, the preservation of mobility and smooth traffic flow, reduces speed variations and thereby reduces the risk of crashes. It is generally accepted that the probability of crashes increases under heavy traffic conditions due to decrease in maneuverability and increases in motorist agitation and frustration, and therefore improvement in mobility, will also lead to preservation of safety.
Further, we would like to note that improvement in mobility does not automatically translate to “higher operating speeds,” which may lead to crashes. Improvement in mobility simply means the reduction of drastic delays, congestion, and dead-stops as a result of work zones. What we mean by improvement in work zone mobility, is providing for motorists to pass through the work zone at or below the posted speed limit for the work zone without experiencing any intolerable work zone induced delays or congestion. Nevertheless, in the provisions that we are proposing in this supplemental notice, we have made an attempt to further emphasize the importance of traffic control, and also recognize it as the most important component of the TMP. Further, the transportation operations (TO) and public information (PI) components that we are proposing as part of the TMP also provide for sustained monitoring and management of work zone safety from an operational perspective and enhance the overall safety of the work zone.
This section consists of a detailed discussion on the comments received to specific NPRM sections and the proposed FHWA resolution in response to these comments. For each section that was proposed in the NPRM, the following information is presented:
• Percentage breakdown of the position of the respondents with regards to the provisions proposed in that section;
• Major issues cited by the respondents—both public sector (primarily DOTs and the AASHTO) and private sector (private individuals, consultants, trade associations); and
• Proposed FHWA action in response to the comments and explanation of the provisions being proposed in the SNPRM.
The following paragraphs show percentages of the position of respondents, categorized by their respective agency types. For example, Supportive—50 percent, Oppose—10 percent, Don't Mandate—20 percent, Neutral—10 percent, Unclear—5 percent, and No Response—5 percent. The purpose of presenting the NPRM responses along the lines of percentages is not to assign statistical significance to the responses, but to present a general cross-section of the responses, and to present a general idea of the
The rationale for assigning the different position statements is explained as follows:
• Supportive—If it is explicitly stated by the respondent, or it is apparent from the respondent's comments or tone.
• Oppose—If the respondent is explicitly opposed to the provisions, or it is apparent from the respondent's comments or tone.
• No Mandate—This is when the respondent supports the provision, but does not think that it should be mandated, but rather it should be provided as guidance.
• Neutral—If the respondents do not explicitly indicate whether they are supportive or opposed, but they do have some general comments which indicate the respondents' understanding of the proposed provisions. As a general rule, respondents whose position is marked as neutral may actually be supportive of the provisions, but since their position is not very clear from their comments, we assigned their position as neutral.
• Unclear—A respondent's position is assigned as unclear when his/her comments do not necessarily lend themselves to making a conclusive inference about what his/her position is. Sometimes, respondents either do not completely understand the provision, or they initiate a discussion, or address a subject outside the scope of this rulemaking.
• No Response—When the respondent has not provided specific comments on that particular section, or when the respondent's general feeling about that particular issue cannot be ascertained from his/her overall comments, or comments on other issues, we do not assign a specific response to that position.
• In general, the majority of the respondents supported the proposed language in this section. About 66 percent of the respondents were supportive, 2 percent were neutral, and the remaining 32 percent did not provide a specific response to this section.
• Major issues cited by the respondents. Public sector agencies indicated the need to clarify the terminology used, such as, “assure,” “adequate consideration,” “all road users,” “workers,” and “other affected parties.” They also suggested that we combine paragraphs (a) and (b) and remove the negative tone from the language. Private sector respondents also indicated the need to clarify and better define the terminology.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. We propose to clarify the language and remove the above cited subjective terminology to remove ambiguity. We propose to combine paragraphs (a) and (b) and remove the “negative tone” from the language. We also propose to combine the MUTCD reference from § 630.1004, “References” of the NPRM, and remove the “negative tone” from the language. We also propose to reorganize the content to directly convey the purpose of this regulation. We propose to add language that promotes the idea of systematic consideration and management of the work zone impacts of projects.
• Percentage breakdown of the position of the respondents with regards to the provisions proposed in this section. In general, a majority of the respondents supported the proposed language in this section. About 55 percent of the respondents were supportive and the remaining 45 percent did not provide a specific response to this section.
• Major issues cited by the respondents. Most respondents commented that they support this section, and the reference to the MUTCD. However, they suggested that it be revised to remove the “negative tone”.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. We propose to modify the rule outline for clarity and simplicity. Therefore, we propose to delete section § 630.1004 and incorporate the main essence of the language in the preceding section, § 630.1002, “Purpose.”
• The majority of the respondents supported the proposed language in this section. About 63 percent of the respondents were supportive, 2 percent were opposed, 1 percent did not agree with mandatory provisions in this regard, 2 percent were neutral, and the remaining 32 percent of the respondents did not provide a specific response to this section.
• Major issues cited by the respondents. Most respondents suggested that we modify existing definitions to clarify terminology and to make them more complete. Several State DOTs and the AASHTO suggested that we add some new definitions, such as, “other affected parties,” and “highway workers.” Private sector respondents noted the need to define “Work Zone Mobility” and “Internal Traffic Control Plan.”
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. We propose to remove the definition for Public Information and Outreach Plan (PIOP), because we do not require a PIOP in the proposed rule. We propose to change the TCP to Temporary Traffic Control (TTC) Plan to be consistent with the most recent edition of the MUTCD. We propose to remove the TMP definition from this section and include it in the TMP provisions in § 630.1012(a), because it is referenced only once in the rule. We propose to remove the TOP definition, becuase we do not require a TOP in the proposed rule. We propose to retain the definition for “Work Zone,” and to update it to be consistent with the most recent edition of the MUTCD. We propose to retain the definitions for “Work Zone Crash,” and “Work Zone Impacts.” We also propose to add definitions for, “Highway Workers,” “Mobility,” and “Safety.” We do not propose to include a definition for “Internal Traffic Control Plan.” Even though internal traffic control plans are important for worker safety, we believe that it is not an issue that is under the purview of this regulation.
• A majority of the respondents supported the proposed language in this section. About 56 percent of the respondents were supportive, 2 percent were opposed, 2 percent did not agree with mandatory provisions in this regard, 3 percent were neutral, and the remaining 37 percent of the respondents did not provide a specific response to this section.
• Major issues cited by the respondents. While most respondents were either supportive of the section or did not provide any specific comments, they did suggest that we clarify the terminology, such as, “other affected parties,” “assure,” and “consistent with.” Private sector respondents suggested the idea of making this regulation applicable to the National Highway System (NHS) as well as utility and maintenance operations.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. Though we did not receive substantial negative reaction to this section, in reviewing all the comments in response to the NPRM, and modifying the language for this SNPRM, we determined that this section is redundant. Therefore, we propose to
• Percentage breakdown of the position of the respondents with regards to the provisions proposed in this section. A majority of the respondents supported the proposed language in this section. About 53 percent of the respondents were supportive, 6 percent were opposed, 2 percent did not agree with mandatory provisions in this regard, 3 percent were neutral, and the remaining 36 percent of the respondents did not provide a specific response to this section.
• Major issues cited by the respondents. The State DOTs and the AASHTO remarked that this section should be rewritten to clearly indicate that any FHWA review of State activities beyond that required to ensure compliance with the rule is nonbinding on the State. They also suggested that we clarify vague terms like “appropriate actions,” and “results intended.” Further, they observed that the first and second sentences seem to contradict each other, and that there are no defined goals for a State's efforts to be measured and deemed a success. Private sector respondents commented that we need to clarify the use of the term “assure,” and that the FHWA review of revisions in established policies and procedures should be for more than just information purposes.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. We propose to move the implementation section to the end, and make changes to reflect the above comments. The new “Implementation” provision is § 630.1014. We propose to remove vague terms like, “appropriate actions,” and “results intended.” We also propose to remove the term “assure” as it is hard to clarify. Many States commented that there are no defined goals for a State's efforts to be measured and deemed a success. Therefore, we propose new language to convey a partnership approach, rather than a strictly regulatory approach to implementing the provisions in the new rule.
• Percentage breakdown of the position of the respondents with regards to the provisions proposed in this section. About 24 percent of the respondents were supportive, 2 percent were opposed, 48 percent did not agree with mandatory provisions in this regard, and the remaining 26 percent of the respondents did not provide a specific response to this section.
• Major issues cited by the respondents. The State DOTs and the AASHTO feel that this section is redundant with § 630.1008, “Policy”, and that it should be deleted. They suggested that we clarify the language and remove subjective terms, such as “severity,” “all road users,” “affected parties,” and “departments.” They are very supportive of the use of a team approach, but indicated that clear definitions are needed, and that more direction is needed on processes, reviews and exemptions.
Private sector respondents were generally supportive of the provisions in this section. They indicated that the regulations need to make clear that the “work zone safety and mobility policy” of State DOTs is an internal review process for the State DOT and that it is not subject to validation, confirmation or review by any other public or private organization. They also remarked that we need to clarify the language and provide more guidance to State DOTs in implementing the work zone safety and mobility policies.
With regards to the “Training” provisions, the State DOTs and the AASHTO noted that we need to remove the mandatory requirement for training. They also commented that we need to clarify the terminology in this section, such as, “all persons responsible,” and “adequate training.” They also remarked that this section poses many open ended questions and opens up liability implications. For example, “is the State responsible for training contractors and consultants”?
Private sector respondents were generally supportive of the “Training” provisions, but they indicated the need to eliminate ambiguity and subjectivity in the terminology in using terms like “adequate” and “responsible persons.”
In reference to the process review section, the States were generally pleased with the “encouraging” tone and the positive nature of this section, but they requested that we clarify terms such as, “departments.”
With reference to the “Performance Data” section, the States expressed concern that crash data cannot be analyzed quickly enough to make changes to ongoing projects. Additionally, the States commented that the language has a “negative tone”, and seemed to imply that work zones are always designed to have deficiencies. They also remarked that collection of mobility performance data may be very expensive, and may strain the resources of the States.
Private sector respondents also noted that mobility data collection may be very expensive. They suggested that the FHWA develop guidelines and standards for analysis of safety and mobility data, and provide common benchmarks for reference and analysis, such as guidance or regulations on more uniform data collection and on how the data will be collected, recorded, and analyzed in a standard format. They also suggested that data on worker fatalities and injuries should be collected and analyzed.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. We propose to make the “Work zone safety and mobility policy” provision a separate section. We also propose to move the “Training,” “Process review and evaluation,” and “Work zone performance data” provisions to a new section entitled, “Agency Level Processes.” This reorganization collects these agency level processes within one section.
We propose to combine the NPRM provisions under § 630.1012(a)(2), “Training,” § 630.1012(a)(3), “Performance review and evaluation,” and § 630.1012(a)(4), “Work zone performance data” into a new section entitled, “Agency-level processes and procedures.” We propose to modify the language for these provisions to correspond to the language proposed in the NPRM. We also propose a new provision entitled, “Impact assessment and management procedures” under the “Agency-level processes and procedures” section.
We believe that we have responded to the State DOTs' concern that crash data cannot be analyzed quickly enough to make changes to ongoing projects, by proposing to remove the related language, and by changing the terminology to require management of the safety and mobility impacts of projects during implementation by using crash data. We propose to remove the negative tone and the implication that work zones are always designed to have deficiencies. We propose to partially adopt the AASHTO's proposed language, to make the wording less negative. We propose to add more detail about data resources/data elements and to explain the benefits of data.
We propose to retain the “shall” clause in this section as we believe that it is an essential requirement to help manage safety during project implementation. This is further reinforced by the National Transportation Safety Board (NTSB)
“Incorporate into the Manual for Uniform Traffic Control Devices the stricter criteria on work zone safety and management contained in the Federal-Aid Policy Guide, 23 Code of Federal Regulations 630 J, Subchapter G-Engineering and Traffic Operations, Part 630-Preconstruction Procedures, Subpart J-Traffic Safety in Highway and Street Work Zones, to include continuously monitoring traffic accident experience in work zones to detect and correct safety deficiencies existing in individual projects. Further, the traffic accident reports necessary to accomplish this should be obtained monthly, directly from local traffic law enforcement agencies. (H-04-01)
In the “Training” provisions, we propose to remove the term “all persons responsible,” and replace it with “personnel” to remove subjectivity from the language. We propose to add personnel responsible for enforcement, in addition to personnel responsible for development, design, implementation, operation, and inspection of work zone related transportation management and traffic control. We also propose to remove the ambiguous phrase, “adequate training.” To the second sentence of the training provision, we propose to add language to convey that training updates should reflect changing agency processes and procedures, in addition to changing industry trends.
The AASHTO and most DOTs were generally pleased with the “encouraging” tone and the positive nature of the “Performance review and evaluation section.” However, the FHWA is charged with the responsibility of making sure that Federal Aid Highway funded projects meet the requirements set forth in Title 23, United States Code, “Highways” and accomplish this, in part, through information gathered by the States' periodic process review. Therefore, we propose to change it to a mandatory requirement rather than an encouraging statement. The need to make this requirement mandatory is further emphasized by the recommendations made by the NTSB in its report entitled, “School Bus Run-off-Bridge Accident, Omaha, Nebraska, October 13, 2001.” The NTSB made the following recommendation to the FHWA in this regard:
“Require divisional offices to participate in the States” work zone safety inspections and diligently monitor and evaluate the results of those inspections in conformance with the Federal-Aid Policy Guide, 23 Code of Federal Regulations 630 J, Subchapter G—Engineering and Traffic Operations, Part 630—Preconstruction Procedures, Subpart J—Traffic Safety in Highway and Street Work Zones. (H-04-02)”
However, flexibility is still offered to the States in the conduct of these reviews. We propose to change the term “departments” to “offices.” We also propose to provide examples for personnel from the different offices within the State DOT. Finally, we propose to add text to indicate what will be done with the results of the review and evaluation.
• Percentage breakdown of the position of the respondents with regards to the provisions proposed in this section. About 18 percent of the respondents were supportive, 1 percent were opposed, 47 percent did not agree with mandatory provisions in this regard, and the remaining 34 percent of the respondents did not provide a specific response to this section.
• Major issues cited by the respondents. The following are the major comments made by the State DOTs and the AASHTO in response to this section:
(1) This section should be guidance and not a mandatory requirement.
(2) The FHWA needs to clarify or delete subjective terms like, “severity.”
(3) If a requirement is imposed, there should be flexibility for States to exempt projects or classes of projects from the impacts analysis requirement or parts of it.
(4) The individual activities listed under the impacts analysis should not be mandated. Revise the provisions to indicate that they are not always required, but may be appropriate on certain types of projects that meet certain conditions.
(5) In general, most of the State DOTs and the AASHTO agree with the concept of a TMP.
(6) The FHWA needs to rewrite and clarify some of the terms to remove subjectivity and ambiguity.
(7) The three separate plans proposed under the TMP, namely the TCP, TOP and PIOP should not be required, because this increases the documentation requirements. Instead of a TMP with three constituent plans, it would be more efficient to have one integrated TMP which may consist of any or all of traffic control, transportation operations and public information components.
(8) The FHWA needs to make the regulatory language more like guidance than an absolute requirement, especially with respect to the constituent elements of the TMP.
(9) The FHWA needs to remove language that seems to indicate that all the components in the TMP are mandatory, for example, change the phrases, “transportation operations requirements,” and “public information and outreach requirements” to “transportation operations strategies,” and “public information and outreach strategies.”
(10) The State DOTs and the AASHTO strongly opposed the mandatory unit pay items for individual TCP components, as they believe that State DOTs would lose their flexibility in contracting. These commenters remarked that this section is overly restricting and it takes away from the flexibility in current contracting options available to States. These commenters acknowledged that there needs to be a distinct pay item requirement for the TCP in the Plans, Specifications and Estimates (PS&Es), but there need not always be unit pay items for all the components of the TCP.
The following are the major comments made by private sector respondents:
(1) The FHWA needs to clarify the terminology and revise the language to improve overall readability.
(2) Private companies involved in short duration work zones were very concerned about the need to perform a detailed impacts analysis for small utility/maintenance type projects.
(3) The way the provisions are written, it exposes the States/contractors to legal liability and lawsuits; especially because the impacts analysis is written as a mandatory clause that should account for impacts on all affected parties.
(4) The regulation should make it very clear that the impacts analysis is an internal review process and that it is not subject to review by any private/public entity.
(5) Contractors are skeptical of “contractor developed TMPs” and of “performance based specifications” because it could increase their liability exposure.
(6) The FHWA needs to indicate that all portions of the TMP should be
(7) The FHWA needs to try and exempt short duration and emergency work from a PIOP.
(8) The FHWA needs to remove the need for three separate plans and combine them into one integrated TMP with traffic control, transportation operations and public information components. The FHWA should add a note “for designated projects” in the regulatory language, to clearly indicate that all three components of the TMP are expected to apply to major projects.
(9) In stark contrast to the sentiments of the public sector, private sector respondents strongly supported unit pay item requirements for individual TCP components because contractors believe that this would ensure a fair playing field, thereby leveling the competition between multiple bidders. They suggested that the FHWA develop model contract specifications, special orders, and unit pricing for safety items that apply to federally supported roadway construction contracts, which they believe will level the playing field for contractors who place a high emphasis on safety. They further suggested that we need to include “worker safety and health” requirements in bid specifications. Some private sector respondents, primarily road building industry trade associations and contractors, recommend either regulatory language or guidance on the use of positive separation.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. The following are the major proposed changes in this notice:
(1) We propose to include a new section, entitled “Significant projects,” which introduces the concept of projects with significant work zone impacts, and consists of requirements for States to develop and update a list of its significant projects. We propose language to define a significant project as one that, “alone or in combination with other concurrent projects nearby is anticipated to cause sustained work zone impacts (as defined in § 630.1004 of the proposal) that are greater than what is considered tolerable based on agency policy and/or engineering judgment.” Identification of significant projects will help stratify the application of TMPs with the TO and PI components only to such significant projects. Such classification of certain projects as significant will also help the State allocate resources more effectively to projects, and apply a systematic approach for identifying, characterizing, and managing work zone impacts.
In the same section on “Significant projects,” we also propose to add language that would require States to designate all Interstate system projects that occupy a location for more than three days with either intermittent or continuous lane closures, as significant. We propose to allow exceptions to this requirement, if in the judgment of the State, a specific Interstate system project does not cause sustained work zone impacts. Exceptions may be granted by the FHWA based on the agency's ability to show that the specific Interstate system project does not have sustained work zone impacts.
(2) We propose to retain the concept of the “Project impact analysis and management procedures” section, but changed its title to “Project-level procedures,” and made it more concise and straightforward. We propose to remove the requirement for conducting a work zone impacts analysis. We propose to retain the requirement to develop TMPs for projects, but clearly indicate that the transportation operations (TO) public information (PI) components of the TMP shall be required only for significant projects (as defined in the “Significant Projects” section). We would like to note that the impacts analysis concepts are indirectly embedded into the TMP, wherein, the scope, content, and degree of detail for TMPs may vary based on the State's policy and its understanding of the expected work zone impacts of the project.
(3) The proposed language for the “Project-level procedures” section is more concise. We propose to change the term “TCP” to “TTC plan” to be consistent with the most recent edition of the MUTCD.
(4) As in the NPRM, we propose that the TTC plan be mandatory for all projects, and require that the TTC plan be consistent with Part 6 of the MUTCD. We propose to add language to require TTC plans to be consistent with the work zone hardware recommendations in Chapter 9 of the AASHTO Roadside Design Guide.
We also propose to add language to convey that, while developing and implementing TTC plans, States shall maintain pre-existing roadside safety features at an equivalent or better level than existed prior to project implementation. These additions are a result of the NTSB's recommendations to the FHWA in its report entitled, “School Bus Run-off-Bridge Accident, Omaha, Nebraska, October 13, 2001.” The NTSB made the following recommendation to the FHWA in this regard:
Include in the Manual for Uniform Traffic Control Devices a requirement that, for roadways under construction, traffic safety features (such as barrier systems) be maintained at an equivalent or better level than existed prior to construction. (H-04-03)
(5) We propose to change the terms “TOP” and “PIOP” to “Transportation Operations (TO)” and “Public Information (PI)” components, respectively. This is to remove the notion of three separate plans being required for all projects. As mentioned previously, we propose to require the TO and the PI components only for significant projects (as defined in the “Significant Projects” section).
(6) In response to the State DOTs' and the AASHTO's concerns regarding “Pay Items,” we proposed to remove the mandatory requirement for unit-pay items for the TCP for method-based specifications. The proposed language revisions now require “a pay-item” in the Plans Specifications and Estimates (PS&Es) for implementing the TMP, and allows flexibility for States to choose either method-based or performance-based specifications.
In the case of method-based specifications, the proposed language allows flexibility to States in choosing individual pay items, lump sum payment, or a combination of both. For performance-based specifications, we propose to provide examples of safety performance criteria (such as number of crashes within the work zone); and mobility performance criteria (such as travel time through the work zone, delay, queue length, traffic volume; incident response and clearance criteria; and work duration criteria.)
The revisions that we are proposing in this supplemental notice do not necessarily address the private sector's comments on the requirement for unit-pay items for implementing the TTC plan. However, the requirement for “a pay item” for implementing the entire TMP, along with the other proposed revisions, would cover the issue of providing for a safe work zone and ensure that all contractors are provided an equal opportunity to bid on all projects without compromising on safety aspects of the project. We believe State DOTs know when to use unit pay
• Percentage breakdown of the position of the respondents with regards to the provisions proposed in this section. About 3 percent of the respondents were supportive, 45 percent were opposed, 2 percent were neutral, and the remaining 50 percent of the respondents did not provide a specific response to this section.
• Major issues cited by the respondents. Private sector respondents did not have any specific comments to this section. The following are the major issues cited by the State DOTs and the AASHTO:
(1) The FHWA needs to clearly explain how the rule will apply to ongoing projects, and to projects that are in the later stages of project development.
(2) The FHWA should indicate clearly that the rule will apply only to projects that have not been initiated yet, and those that still have not passed through the entire project development process.
(3) A blanket time requirement is very confusing.
(4) The FHWA should provide flexibility to States to request waivers/exemptions on a case-by-case basis for those projects that are in the later stages of project development and would be significantly impacted by this rule's implementation.
(5) The FHWA needs to provide implementation guidance on model documentation for implementation of the new rule.
(6) The FHWA should consider “phased” implementation rather than absolute compliance.
(7) The FHWA should clarify the terminology used and provide more guidance on applicability.
• Proposed FHWA action in response to the comments, and overview of the provisions being proposed in the SNPRM. We propose to retain the three-year compliance date, but allow variances on a case-by-case basis for projects in later stages of project development, if it is determined that the delivery of those projects would be significantly impacted as a result of this rule's provisions.
Further, in the interim period between publication of this rule and the compliance date, to provide for TMPs with both TO and PI components for ongoing significant projects, State DOTs are encouraged, but not required, to apply the requirements in §§ 630.1012(b)(2) and (b)(3) to those projects that are in progress, and are determined by the State to have significant work zone impacts.
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable, but the FHWA may issue a final rule at any time after the close of the comment period. In addition to late comments, the FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material.
The FHWA has limited the comment period for this proposal to 30-days in order to issue a final regulation on the earliest possible date. We believe that this comment period provides interested persons with an adequate opportunity for review and comment.
We have systematically and progressively given opportunity for interested parties to review and comment on this docket since early 2002. We first opened a docket on the issue of work zone safety and mobility by issuing the ANPRM on February 6, 2002, which was followed by the NPRM on May 7, 2003. Both the ANPRM and the NPRM had a comment period of 120 days each. The total duration that this docket has been open indicates that there has been ample opportunity for interested parties to conduct their analyses and submit their comments and views. Therefore, we believe that interested parties should be familiar enough with the topic, the issues addressed, and the provisions proposed in this notice, for them to be able to review and comment within the 30-day time-frame. With the growing concern of high levels of congestion on many highways and an increase in the number of work zone fatalities each of the past five years (for an overall increase of 70 percent between 1997 and 2002), further delaying the issuance of this final rule will compound these current problems associated with work zones. Accordingly, we have determined that a 30-day comment period best serves the safety and mobility interests of the American public.
The FHWA has determined that this proposed rule would not be a significant regulatory action within the meaning of Executive Order 12866 and would not be significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this action would be minimal.
These proposed changes are not anticipated to adversely affect, in a material way, any sector of the economy. In addition, these proposed changes would not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs; nor will the proposed amendments of this regulation raise any novel legal or policy issues. Therefore, a full regulatory evaluation is not required.
Based upon the information received in response to this SNPRM, the FHWA intends to carefully consider the costs and benefits associated with this rulemaking. Accordingly, comments, information, and data are solicited on the economic impact of the changes described in this document or any alternative proposal submitted.
In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 60l-612), the FHWA has evaluated the effects of this SNPRM on small entities and has determined that it would not have a significant economic impact on a substantial number of small entities.
This rule applies to State departments of transportation in the execution of their highway program, specifically with respect to work zone safety and mobility. The implementation of the proposed provisions in this rule would therefore not affect the economic viability or sustenance of small entities, as States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the RFA does not apply and the FHWA certifies that the proposed action will not have a significant economic impact on a substantial number of small entities.
This SNPRM would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The actions proposed in this SNPRM would not result in the
This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and it has been determined that this proposed action does not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation or affects the States' ability to discharge traditional State governmental functions.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
The FHWA has determined that this proposed rule contains a requirement for data and information to be collected and maintained in the support of design, construction, and operational decisions that affect the safety and mobility of the traveling public related to highway and roadway work zones. In order to streamline the process, the FHWA intends to request that the OMB approve a single information collection clearance for all of the data in the proposed regulation.
The FHWA estimates that a total of 83,200 burden hours per year would be imposed on non-Federal entities to provide the required information for the proposed regulation requirements. Respondents to this information collection include State Transportation Departments from all 50 States, Puerto Rico, and the District of Columbia. The estimates here only include burdens on the respondents to provide information that is not usually and customarily collected.
The FHWA is required to submit this proposed collection of information to the OMB for review and approval, and accordingly, seeks public comments. Interested parties are invited to send comments regarding any aspect of these information collection requirements, including, but not limited to: (1) Whether the collection of information is necessary for the performance of the functions of the FHWA, including whether the information has practical utility; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the collected information; and (4) ways to minimize the collection burden without reducing the quality of the information collected.
The FHWA has analyzed this proposed action under Executive Order 13175, dated November 6, 2000, and believes that this proposed action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. This rulemaking primarily applies to urbanized metropolitan areas and National Highway System (NHS) roadways that are under the jurisdiction of State transportation departments. The purpose of this proposed action is to mitigate the safety and mobility impacts of highway construction and maintenance projects on the transportation system, and would not impose any direct compliance requirements on Indian tribal governments and will not have any economic or other impacts on the viability of Indian tribes. Therefore, a tribal summary impact statement is not required.
The FHWA has analyzed this proposed action under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution or Use. We have determined that this proposed action would not be a significant energy action under that order because any action contemplated would not be a significant regulatory action under Executive Order 12866 and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we believe that the implementation of the proposed provisions by State departments of transportation would reduce the amount of congested travel on our highways, thereby reducing the fuel consumption associated with congested travel. Therefore, the FHWA certifies that a Statement of Energy Effects under Executive Order 13211 is not required.
The FHWA has analyzed this proposed action for the purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347
The FHWA has analyzed this proposed rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.
This action 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.
The FHWA has analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this proposed action will not cause an environmental risk to health or safety that may disproportionately affect children.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be
Government contracts, Grant programs—transportation, Highway safety, Highways and roads, Project agreement, Traffic regulations.
In consideration of the foregoing, the FHWA proposes to revise title 23, Code of Federal Regulations, Part 630, subpart J as follows:
1. The authority citation continues to read as follows:
23 U.S.C. 106, 109, 115, 315, 320, and 402(a); 23 CFR 1.32; and 49 CFR 1.48(b).
2. Revise subpart J of part 630 to read as follows:
Work zones directly impact the safety and mobility of road users and highway workers. These safety and mobility impacts are exacerbated by an aging highway infrastructure and growing congestion in many locations. Addressing these safety and mobility issues requires considerations that start early in project development and continue through project completion. Part 6 of the Manual On Uniform Traffic Control Devices (MUTCD)
As used in this subpart:
Each State shall implement a policy for the systematic consideration and management of work zone impacts on all Federal-aid highway projects. This policy shall address work zone impacts throughout the various stages of the project development and implementation process. This policy may take the form of processes,
(a) This section consists of agency-level processes and procedures for States to implement and sustain their respective work zone safety and mobility policies. Agency-level processes and procedures, well defined data resources, training, and periodic evaluation enable a systematic approach for addressing and managing the safety and mobility impacts of work zones.
(b)
(c)
(d)
(e)
A significant project is one that, alone or in combination with other concurrent projects nearby is anticipated to cause sustained work zone impacts (as defined in § 630.1004) that are greater than what is considered tolerable based on agency policy and/or engineering judgment. In addition, all Interstate system projects that occupy a location for more than three days with either intermittent or continuous lane closures shall be considered as significant projects. The applicability of the provisions in §§ 630.1012(b)(2) and 630.1012(b)(3) is dependent upon whether a project is determined to be significant. The State shall identify upcoming projects that are expected to be significant. This identification of significant projects should be done as early as possible in the project delivery and development process, and in cooperation with the FHWA. The State's work zone policy provisions, the project's characteristics, and the magnitude and extent of the anticipated work zone impacts should be considered when determining if a project is significant or not. For an Interstate system project that is classified as significant through the application of this subpart, but in the judgment of the agency it does not cause sustained work zone impacts, the agency may request an exception to §§ 630.1012(b)(2) and 630.1012(b)(3) from the FHWA. Exceptions to these provisions may be granted by the FHWA based on the agency's ability to show that the specific Interstate system project does not have sustained work zone impacts.
(a) This section provides guidance and establishes procedures for States to manage the work zone impacts of individual projects.
(b)
(1) A TTC plan helps safely and efficiently handle traffic through a specific highway or street work zone or project. The TTC plan shall be consistent with the provisions under Part 6 of the MUTCD and with the work zone hardware recommendations in Chapter 9 of the American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide.
(2) The TO component of the TMP shall include the identification of strategies that will be used to mitigate impacts of the work zone on the operation and management of the transportation system within the work zone impact area. Typical TO strategies may include, but are not limited to, demand management, corridor/network management, safety management and enforcement, and work zone traffic management and traveler information.
(3) The PI component of the TMP shall include communications strategies that seek to inform affected road users, the general public, area residences and businesses, and appropriate public entities about the project, the expected work zone impacts, and the changing conditions on the project. The scope of the PI component should be determined by the project characteristics and the public information and outreach requirements identified by the State. Public information should be provided through methods best suited for the project, and may include but not be limited to, information on the project characteristics, expected impacts, closure details, and commuter alternatives.
(4) States should develop and implement the TMP in sustained coordination and partnership with stakeholders (
(c) The Plans, Specifications, and Estimates (PS&Es) shall include either a TMP or provisions for contractors to develop a TMP at the most appropriate project phase as applicable to the State's chosen contracting methodology for the project. Contractor developed TMPs shall be approved by the State prior to implementation.
(d) The PS&Es shall include appropriate pay item provisions for implementing the TMP, either through method or performance based specifications.
(1) For method-based specifications individual pay items, lump sum payment, or a combination thereof may be used.
(2) For performance based specifications, applicable performance criteria and standards may be used (
(e)
Each State shall work in partnership with the FHWA in the implementation of its policies and procedures to improve work zone safety and mobility. At a minimum, this shall involve an FHWA review of conformance of the State's policies and procedures with this subpart and reassessment of the State's implementation of its procedures at appropriate intervals. Each State is encouraged to address implementation of this subpart in its stewardship agreement with the FHWA.
States shall comply with all the provisions of this subpart no later than [date 30 days after publication of the final rule in the
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a regulated navigation area, anchorage grounds, and safety and security zones in Niantic Bay, Long Island Sound, the Thames River and New London Harbor, for the Tall Ships Environmental Festival. These proposed regulations would provide for the safety of life and property on the navigable waters of the United States and for the security of participating tall ships during the Tall Ships Environmental Festival, New London, Connecticut. This action is intended to restrict vessel traffic in portions of Niantic Bay, Long Island Sound, the Thames River, and New London Harbor.
Comments and related material must reach the Coast Guard on or before June 14, 2004.
You may mail comments and related material to Planning/Waterways Management, Coast Guard Group/Marine Safety Office Long Island Sound, 120 Woodward Avenue, New Haven, CT 06512. Coast Guard Group/Marine Safety Office Long Island Sound maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Group/Marine Safety Office Long Island Sound, New Haven, CT, between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Lieutenant A. Logman, Waterways Management Officer, Coast Guard Group/Marine Safety Office Long Island Sound at (203) 468-4429.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-04-006), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We chose to publish this NPRM, and because of the closeness of the event, we anticipate making the final rule effective less than 30 days from publication in the
We do not now plan to hold a public meeting, but you may submit a request for a meeting by writing to Coast Guard Group/Marine Safety Office Long Island Sound at the address under
The Port of New London, Connecticut will host the Tall Ships Environmental Festival from July 22 to 25, 2004. This visit of Class A, B and C sailing vessels is part of an annual series of sail training races, rallies, cruises and port festivals organized by the American Sail Training Association in conjunction with host ports in the United States (U.S.) and Canada. The Tall Ships visit to New London is being sponsored by the Tunza International Children's Conference on the Environment (ICCE) that will take place in New London, Connecticut from 19-23 July 2004. The Fifth International Children's Conference on the Environment, sponsored by the United Nations Environment Program, will host approximately 600 Children from 100 Countries to discuss issues of critical importance to the environment. Tied into the conference, the Tall Ships visit to New London will have a unique environmental focus.
The Tall Ships visit to New London, which will occur from July 22-25, will include a Parade of Sail on July 22, 2004. Approximately 30 Class A, B and C vessels are expected to participate in the Parade of Sail. These proposed regulations would provide for the safety of life and property on the navigable waters of the United States by preventing the large number of participating and spectator vessels from interfering with the organized Parade of Sail. There will be vessels participating in the event from several foreign countries and the high visibility of this event warrants that both safety and security zones be established to safeguard participating vessels, their crews and the maritime public from sabotage or other subversive acts, accidents, or other hazards of a similar nature.
Under the proposed regulations, the Tall Ships and participating vessels would anchor in Niantic Bay on July 21, 2004. On July 22, 2004, the Tall Ships and participating vessels will transit from Niantic Bay via Long Island Sound and the Thames River Federal Channel to the Port of New London. Most participating vessels will then berth at the Admiral Shear State Pier; some will also berth at City Pier in New London. Other piers in New London may also be utilized for this event, including Fort Trumbull State Park. The remainder of the vessels not participating in the Tall Ships Festival or otherwise berthing in the Port of New London are expected to sail back to Long Island Sound following their participation in the parade down the east side of the Channel.
The proposed regulations would create vessel movement controls, safety and security zones for the Parade of Sail and would create temporary anchorage regulations. The regulations would be in effect at various times in Niantic Bay, Long Island Sound, and New London Harbor on July 21 and July 22, 2004. Vessel congestion due to the large number of participating and spectator vessels poses a significant threat to the safety of life and property. This temporary rulemaking is necessary to ensure the safety of life and property on the navigable waters of the United States and to safeguard participating vessels, their crews and the maritime public from sabotage or other subversive acts, accidents, or other hazards of a similar nature.
Vessel transits may also be directed through the vessel operating restrictions imposed by 33 CFR 165.153. These regulations impose operating, inspection and reporting requirements for vessels and create regulated areas surrounding vessels in commercial service, including ferries.
The Coast Guard proposes to establish temporary Regulated Navigation Area “A” (Area A) in Niantic Bay from July 21-22, 2004. The regulated area is needed to protect the maritime public and participating vessels from hazards to navigation associated with the overnight anchoring of a large number of tall ships and their departure prior to the beginning of the Parade of Sail into New London Harbor on July 22, 2004.
Area A includes all waters of Niantic Bay located on Long Island Sound within the following boundaries: Beginning at a point 300 yards, bearing 203 deg. T from Wigwam Rock 41°18′53″N, 072°11′48″ W, then to 41°18′53″ N, 072°10′38″ W, then to 41°16′40″ N, 072°10′38″ W, then to 41°16′40″ N, 072°11′48″ W. All coordinates are North American Datum (NAD) 1983. This proposed regulated area would be effective from 6 a.m. July 21, 2004 to 2 p.m. July 22, 2004.
Vessels transiting Area A must do so at no wake speed or at speeds not to exceed 6 knots, whichever is less. Vessels transiting Area A must not maneuver within 100 yards of a tall ship or other vessel participating in the Tall Ships Environmental Festival, unless authorized by the Captain of the Port (COTP) or the COTP's on-scene representative. On-scene representatives are commissioned, warrant, and petty officers of the U.S. Coast Guard.
The Coast Guard, upon the consent of the Chief of Engineers, Army Corps of Engineers, Concord, MA, is proposing to establish temporary Anchorage regulations for participating Tall Ships Environmental Festival vessels and spectator craft. Under the proposed regulations, current Anchorage Ground regulations in Title 33 Code of Federal Regulations (CFR) § 110.147 would be temporarily suspended and other Anchorage Grounds would be temporarily established.
The proposed temporary anchorage regulations would designate selected current or temporarily established anchorage grounds for spectator or Tall Ships Environmental Festival participant vessel use only. They restrict all other vessels from using these anchorage grounds during various portions of the Tall Ships Environmental Festival event. The anchorage grounds are needed to provide viewing areas for spectator vessels while maintaining a clear parade route for the participating Tall Ships Environmental Festival vessels and to protect boaters and spectator vessels from the hazards associated with the Parade of Sail.
The Coast Guard proposes to temporarily suspend Anchorage C, located at 33 CFR § 110.147(a)(3); redesignating the same location as Anchorage G, making it exclusively for spectator vessels exceeding 50 feet in length, carrying passengers for the viewing of the Parade of Sail. Under the proposed regulations, Anchorage G would be established from 7:30 a.m. until 2 p.m., on July 22, 2004.
The Coast Guard would temporarily establish Anchorage J exclusively for spectator vessels exceeding 50 feet in length carrying passengers for the viewing of the Parade of Sail. Anchorage J includes all waters of the Thames River southward of New London Harbor, on the east side of the Federal Channel, within the following boundaries: Beginning at a point bearing 245°T, 480 yards from Eastern Point, 41°19′03″ N, 072°04′48″ W, then to position 41°18′42″ N, 072°04′30″ W, then to position 41°18′40″ N, 072°04′45″ W. All coordinates are North American Datum (NAD) 1983. Anchorage J would be established from 7:30 a.m. until 2 p.m. on July 22, 2004.
The Coast Guard would temporarily establish Anchorage H in Niantic Bay exclusively for the vessels participating in the Parade of Sail. Anchorage H would be established from 6 a.m. on July 21, 2004 until 2 p.m. on July 22, 2004. Anchorage H is the same area
The Coast Guard proposes to temporarily establish Anchorage I in the Thames River in the vicinity of the State Pier exclusively for vessels who have participated in the Parade of Sail which are awaiting berthing availability. Anchorage I would be established from 7:30 a.m. until 2 p.m. on July 22, 2004.
Anchorage I would be located on all waters of the Thames River in New London Harbor, in the vicinity of the State Pier within the following boundaries: Beginning at a point located on the west shoreline of the Thames River 25 yards below the Thames River Railroad Bridge, position 41°21′46″ N, 072°05′23″ W, then to position 41°21′46″ N, 072°05′16″ W then south along the western limit of the Federal Channel to position 41°20′37″ N, 072°05′87″ W, then to position 41°20′37″ N, 072°05′33″ W, then along the shoreline to position 41°21′46″ N, 072°05′23″ W. All coordinates are North American Datum (NAD) 1983.
The Coast Guard proposes to establish two safety and security zones for the Tall Ships event. Safety and Security Zone 1 would be established by reference to fixed coordinates. Safety and Security Zone 1 would be utilized around the Parade of Sail route and includes all waters of the Thames River in New London Harbor in the vicinity of the State Pier within the following boundaries: Beginning at a point located on the west shoreline of the Thames River 25 yards below Thames River Railroad Bridge, position 41°21′46″ N, 072°05′23″ W, then east to position 41°21′46″ N, 072°05′16″ W, then south along the western limit of the Federal Channel to position 41°20′37″ N, 072°05′87″ W, then west to position 41°20′37″ N, 072°05′33″ W, then along the shoreline to the starting position, 41°21′46″ N, 072°05′23″ W. This safety and security zone would be used as a mooring and turning area for the Parade of Sail participants as the participants conclude the parade and is effective from 7:30 a.m. until 2 p.m. on July 22, 2004. Safety and Security Zone 1 consists of the same area as Anchorage I.
Safety and Security Zone 2 covers all waters of the Thames River within the following boundaries: Beginning at the east side of the Federal Channel at the Thames River Rail Road Bridge in the Port of New London, in position 41°21′47″ N, 072°05′14″ W, then southward along the east side of the Federal Channel to the New London Harbor Channel Lighted Buoy “2” (LLNR 21790) in approximate position 41°17′38″ N, 072°04′40″ W, then to Bartlett Reef Lighted Bell Buoy “4” (LLNR 21065) in approximate position 41°15′38″ N, 072°08′22″ W, then north to Bartlett Reef Buoy “1” (LLNR 21758) in approximate position 41°16′28″ N, 072°07′54″ W, then to an area located, bearing 192 degrees true, approximately 325 yards from Rapid Rock Buoy “R” (LLNR 21770) 41°17′07″ N, 072°06′09″ W, then to position 41°18′04″ N, 072 °04′50″ W, which meets the west side of the Federal Channel, then along the west side of the Federal Channel to the Thames River Railroad Bridge in the Port of New London, in the position 41°21′46″ N, 072°05′23″ W. This area will be used for the parade route of Tall Ships and is effective from 7:30 a.m. until 2 p.m., on July 22, 2004. All coordinates are North American Datum (NAD) 1983. Safety and Security Zone 2 encompasses a permanent Anchorage in New London Harbor, Anchorage A, located at 33 CFR § 110.147(a)(1). Anchorage A is designated for barges and small vessels drawing less than 12 feet. Use of this anchorage would be contrary to the purposes of establishing this safety and security zone. Anchorage A would therefore be suspended during the effective period of Safety and Security Zone 2. The proposed safety and security zones have been tailored to fit the needs of safety while minimizing the impact on the maritime community.
No vessel may enter, remain in, or transit within Safety and Security Zones 1 or 2 unless authorized by the Coast Guard Captain of the Port, Long Island Sound or his on-scene representative as described above. Each person or vessel in a safety zone shall obey any direction or order of the COTP.
The proposed safety and security zone regulations may be enforced and punishable by the terms set forth by 33 U.S.C. 1232 and 50 U.S.C. 192 accordingly. Enforcement of violations of these regulations may include, in addition to any civil and criminal penalties authorized by 33 U.S.C. 1232 and 50 U.S.C. 192, in rem liability against the offending vessel as well as license sanctions against the offending mariner. This regulation is proposed under the authority contained in Title 33 United States Code (U.S.C.) 1223 and 1225, 50 U.S.C. 191, and the regulations promulgated thereunder.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation would prevent traffic from transiting a portion of Long Island Sound, Niantic Bay, and the Thames River during the event, the potential impacts will be minimized for the following reasons: the anchorage grounds, regulated area, and safety and security zones only encompass a small portion of the Thames River, New London Harbor and Niantic Bay, respectively, allowing sufficient room for vessels to operate or anchor outside of the areas; the anchorage grounds, regulated area, and safety/security zones are of limited duration; commercial traffic would be allowed to proceed in a single direction in the Thames River Navigation Channel; there will be extensive advanced notifications made to the maritime community via the Local Notice to Mariners, facsimile, marine information broadcasts, local area committee meetings, and New London area newspapers. Mariners would be able to adjust their plans accordingly based on the extensive advance information. Additionally, the regulated area, anchorage grounds, safety and security zones have been narrowly tailored to impose the least impact on maritime interests yet provide the level of safety and protection deemed necessary.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses and 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 certifies under 5 U.S.C. 605(b) that this proposed rule
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (
Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety Office Long Island Sound, at (203) 468-4429.
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).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
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 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed 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.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.
To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the
We have analyzed this proposed 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, is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The Coast Guard considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraphs 34 (f) and (g), of Commandant Instruction M16475.1D, this proposed rule is categorically excluded from further environmental documentation as long as the Coast Guard meets the conditions outlined in the “Categorical Exclusion Determination” document. The “Categorical Exclusion Determination” is available in the docket where indicated under
Anchorage grounds.
Harbors, Marine safety, Navigation (water), Reporting and Recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Parts 110 and 165 as follows:
1. The authority citation for part 110 continues to read as follows:
33 U.S.C. 471, 1221 through 1236, 2030, 2035 and 2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1.
2. From 7:30 a.m. to 2 p.m. on July 22, 2004, in § 110.147 paragraphs (a)(1) and (a)(3) are temporarily suspended.
3. From 6 a.m. on July 21, 2004, until 2 p.m. on July 22, 2004, temporarily add § 110.T01-008 to read as follows:
(a)
(ii)
(2)(i)
(ii)
(3)(i)
(ii)
(4)(i)
(ii)
(b)
(2)
(3)
(4)
4. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
5. From 7:30 a.m until 2 p.m. on July 22, 2004, temporarily add § 165.T01-006 to read as follows:
(a)
(1)
(2)
(c)
6. From 6 a.m. on July 21, 2004, until 2 p.m. on July 22, 2004, temporarily add § 165.T01-007 to read as follows:
(a)
(b)(1) Vessels transiting Regulated Navigation Area A must do so at no
(2) Vessels transiting Regulated Navigation Area A must not maneuver within 100 yards of a Tall Ship or a Tall Ships Environmental Festival participating vessel unless they are specifically authorized to do so by Coast Guard Captain of the Port, Long Island Sound, or his on-scene representative.
(c)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish safety zones on the waters located in their AOR during fireworks displays. The Captain of the Port, Portland, Oregon, is taking this action to safeguard watercraft and their occupants from safety hazards associated with these displays. Entry into these safety zones would be prohibited unless authorized by the Captain of the Port.
Comments and related material must reach the Coast Guard on or before June 14, 2004.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are available for inspection or copying at the U.S. Coast Guard MSO/Group Portland, 6767 N. Basin Ave, Portland, Oregon 97217 between 7 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Junior Grade Ryan Wagner, c/o Captain of the Port, Portland 6767 N. Basin Avenue, Portland, Oregon 97217, (503) 240-2584.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD13-04-016], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Marine Safety Office Puget Sound at the address under
The Coast Guard proposes to establish permanent safety zones to allow for safe fireworks displays. These events may result in a number of vessels congregating near fireworks launching barges and sites. Safety zones are needed to protect watercraft and their occupants from safety hazards associated with fireworks displays.
This rule, for safety concerns, would control vessel movements in regulated areas surrounding fireworks launching barges and sites. Entry into these zones would be prohibited unless authorized by the Captain of the Port, Portland, or his designated representative. Coast Guard personnel would enforce these safety zones. The Captain of the Port may be assisted by other federal state and local agencies.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this proposed rule under that Order. This proposed rule is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures act of DOT is unnecessary. This expectation is based on the fact that the regulated areas established by the proposed regulation will encompass small portions of rivers in the Portland AOR on different dates, all in the evening when vessel traffic is low.
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” include 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. This proposed rule would affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit a portion of the Willamette River during the enforcement periods These safety zones would not have significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only thirty minutes during two evenings when vessel traffic is low. Traffic would be allowed to pass through the zone with the permission of the Captain of the Port or his designated representatives on scene, if safe to do so. Because the impacts of this proposal are expected to be so minimal, the Coast Guard certifies under 5 U.S.C. 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed 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.
We have analyzed this proposed 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.
This proposed 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.
We have analyzed this proposed 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The Coast Guard considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion is provided for temporary safety zones of less than one week in duration. This rule establishes safety zones with a duration of thirty minutes.
Harbors, Marine safety, Navigation (water), Reporting and RecordKeeping Requirements, Security Measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165 as follows:
1. The authority citation for Part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. In § 165.1315, add (a)(9) to (a)(19) to read as follows:
(a) * * *
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(b)
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the state of Missouri for the purpose of establishing updated non-regulatory language describing the St. Louis Inspection and Maintenance (I/M) program.
Comments on this proposed action must be received in writing by June 14, 2004.
Submit your comments, identified by Regional Material in EDocket (RME) ID Number R07-OAR-2004-MO-0001, by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the rules section of this
Alan Banwart at (913) 551-7819, or by e-mail at
In the final rules section of the
Department of Defense (DoD).
Proposed rule with request for comments.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update policy pertaining to the DoD Pilot Mentor-Protégé Program. The proposed changes authorize the Director, Small and Disadvantaged Business Utilization, of each military department or defense agency to approve mentor firms and mentor-protégé agreements.
Comments on the proposed rule should be submitted to the address shown below on or before July 12, 2004, to be considered in the formation of the final rule.
Respondents may submit comments directly on the World Wide Web at
Respondents that cannot submit comments using either of the above methods may submit comments to: Defense Acquisition Regulations Council, Attn: Mr. Thaddeus Godlewski, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. Please cite DFARS Case 2003-D013.
At the end of the comment period, interested parties may view public comments on the World Wide Web at
Mr. Thaddeus Godlewski, (703) 602-2022.
This rule proposes changes to the DoD Pilot Mentor-Protégé Program to authorize the Director, Small and Disadvantaged Business Utilization (SADBU), of each military department or defense agency to approve contractors as mentor firms and to approve mentor-protégé agreements. The Director, Office of the Secretary of Defense, SADBU, will retain policy and oversight responsibility for the offices participating in the Program and will remain the principal budget authority for the Program. This rule also updates procedures for implementation of the Program to reflect current Program requirements.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The information collection requirements of the DoD Pilot Mentor Protégé Program have been approved by the Office of Management and Budget under Control Number 0704-0332.
Government procurement.
Therefore, DoD proposes to amend 48 CFR Part 219 and Appendix I to Chapter 2 as follows:
1. The authority citation for 48 CFR Part 219 and Appendix I to subchapter I continues to read as follows:
41 U.S.C. 421 and 48 CFR Chapter 1.
2. Section 219.7100 is amended by revising the first sentence to read as follows:
This subpart implements the Pilot Mentor-Protégé Program (hereafter referred to as the “Program”) established under Section 831 of the National Defense Authorization Act for Fiscal Year 1991 (Pub. L. 101-510; 10 U.S.C. 2302 note). * * *
3. Section 219.7102 is amended by revising paragraphs (a) and (d) to read as follows:
(a) Mentor firms that are prime contractors with at least one active subcontracting plan negotiated under FAR Subpart 19.7 or under the DoD Comprehensive Subcontracting Test Program.
(d) Incentives that DoD may provide to mentor firms, including—
(1) Reimbursement for developmental assistance costs through—
(i) A separately priced contract line item on a DoD contract; or
(ii) A separate contract, upon written determination by the cognizant Component Director, Small and Disadvantaged Business Utilization (SADBU), that unusual circumstances justify reimbursement using a separate contract; or
(2) Credit toward applicable subcontracting goals, established under a subcontracting plan negotiated under FAR Subpart 19.7, or under the DoD Comprehensive Subcontracting Test Program for developmental assistance costs that are not reimbursed.
4. Section 219.7103-1 is revised to read as follows:
The procedures for application, acceptance, and participation in the Program are in Appendix I, Policy and Procedures for the DoD Pilot Mentor-Protégé Program. The Director, SADBU, of each military department or defense agency has the authority to approve contractors as mentor firms, approve mentor-protégé agreements, and forward approved mentor-protégé agreements to the contracting officer when funding is available.
5. Section 219.7103-2 is amended as follows:
a. By revising paragraphs (d), (e), and (f); and
b. In paragraph (h), in the parenthetical, by removing “I-112” and adding in its place “I-113”. The revised text reads as follows:
(d) Modify applicable contract(s) to establish a contract line item for reimbursement of developmental assistance costs if—
(1) A DoD program manager or the cognizant Component Director, SADBU, has made funds available for that purpose; and
(2) The contractor has an approved mentor-protégé agreement.
(e) Negotiate and award a separate contract for reimbursement of developmental assistance costs only if—
(1) Funds are available for that purpose;
(2) The contractor has an approved mentor-protégé agreement; and
(3) The cognizant Component Director, SADBU, has made a determination in accordance with 219.7102(d)(1)(ii).
(f) Not authorize reimbursement for costs of assistance furnished to a protégé firm in excess of $1,000,000 in a fiscal year unless a written determination from the cognizant Component Director, SADBU, is obtained.
6. Section 219.7105 is amended by removing “I-111” and adding in its place “I-112”.
7. Section 219.7106 is amended in the first sentence by removing “I-112” and adding in its place “I-113”.
8. Appendix I to Chapter 2 is revised to read as follows:
(a) This Appendix I to 48 CFR Chapter 2 implements the Pilot Mentor-Protégé Program (hereafter referred to as the “Program”) established under Section 831 of Pub. L. 101-510, the National Defense Authorization Act for Fiscal Year 1991 (10 U.S.C. 2302 note). The purpose of the Program is to—
(1) Provide incentives to major DoD contractors, performing under at least one active approved subcontracting plan negotiated with DoD or another Federal agency, to assist protégé firms in enhancing their capabilities to satisfy DoD and other contract and subcontract requirements;
(2) Increase the overall participation of protégé firms as subcontractors and suppliers under DoD contracts, other Federal agency contracts, and commercial contracts; and
(3) Foster the establishment of long-term business relationships between protégé firms and such contractors.
(b) Under the Program, eligible companies approved as mentor firms will enter into mentor-protégé agreements with eligible protégé firms to provide appropriate developmental assistance to enhance the capabilities of the protégé firms to perform as subcontractors and suppliers. DoD may provide the mentor firm with either cost reimbursement or credit against applicable subcontracting goals established under contracts with DoD or other Federal agencies.
(c) DoD will measure the overall success of the Program by the extent to which the Program results in—
(1) An increase in the dollar value of contract and subcontract awards to protégé firms (under DoD contracts, contracts awarded by other Federal agencies, and commercial contracts) from the date of their entry into the Program until 2 years after the conclusion of the agreement;
(2) An increase in the number and dollar value of subcontracts awarded to a protégé firm (or former protégé firm) by its mentor firm (or former mentor firm);
(3) An increase in the employment level of protégé firms from the date of entry into the Program until 2 years after the completion of the agreement.
(d) This policy sets forth the procedures for participation in the Program applicable to companies that are interested in receiving—
(1) Reimbursement through a separate contract line item in a DoD contract or a separate contract with DoD; or
(2) Credit toward applicable subcontracting goals for costs incurred under the Program.
An institution determined by the Secretary of Education to meet the requirements of 34 CFR 608.2. The term also means any nonprofit research institution that was an integral part of such a college or university before November 14, 1986.
An institution of higher education with a student body that reflects the composition specified in section 312(b)(3), (4), and (5) of the Higher Education Act of 1965 (20 U.S.C. 1058(b)(3), (4), and (5)).
A business entity operated on a for-profit or nonprofit basis that—
(a) Uses rehabilitative engineering to provide employment opportunities for severely disabled individuals and integrates severely disabled individuals into its workforce;
(b) Employs severely disabled individuals at a rate that averages not less than 20 percent of its total workforce;
(c) Employs each severely disabled individual in its workforce generally on the basis of 40 hours per week; and
(d) Pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act (29 U.S.C. 206) to those employees who are severely disabled individuals.
An individual who has a physical or mental disability which constitutes a substantial handicap to employment and which, in accordance with criteria prescribed by the Committee for the Purchase from the Blind and Other Severely Handicapped established by the first section of the Act of June 25, 1938 (41 U.S.C. 46; popularly known as the “Javits-Wagner-O'Day Act”) is of such a nature that the individual is otherwise prevented from engaging in normal competitive employment.
A small business concern that is—
(a) An SDB concern as defined at 219.001, paragraph (1) of the definition of “small disadvantaged business concern”;
(b) A business entity owned and controlled by an Indian tribe as defined in Section 8(a)(13) of the Small Business Act (15 U.S.C. 637(a)(13)); or
(c) A business entity owned and controlled by a Native Hawaiian Organization as defined in Section 8(a)(15) of the Small Business Act.
A small business concern owned and controlled by women as defined in Section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D)).
(a) To be eligible to participate as a mentor, an entity must be—
(1) An entity other than small business, unless a waiver to the small business exception has been obtained from the Director, Small and Disadvantaged Business Utilization (SADBU), OUSD (AT&L), that is a prime contractor to DoD with an active subcontracting plan; or
(2) A graduated 8(a) firm that provides documentation of its ability to serve as a mentor; and
(3) Approved to participate as a mentor in accordance with I-105.
(b) To be eligible to participate as a protégé, an entity must be—
(1) An SDB, a WOSB, or an eligible entity employing the severely disabled;
(2) Eligible for the award of Federal contracts; and
(3) A small business according to the Small Business Administration (SBA) size standard for the North American Industry Classification System (NAICS) code that represents the contemplated supplies or services to be provided by the protégé firm to the mentor firm if the firm is representing itself as a qualifying entity under the definition at I-101.5(a) or I-101.6.
(c) Mentor firms may rely in good faith on a written representation that the entity meets the requirements of paragraph (a) of this section, except for a protégé's status as a small disadvantaged business concern (see FAR 19.703(b)).
(d) If at any time the SBA (or DoD in the case of entities employing the severely disabled) determines that a protégé is ineligible, assistance that the mentor firm furnishes to the protégé after the date of the determination may not be considered assistance furnished under the Program.
(e) A company may not be approved for participation in the Program as a mentor firm if, at the time of requesting participation in the Program, it is currently debarred or suspended from contracting with the Federal Government pursuant to FAR Subpart 9.4.
(f) If the mentor firm is suspended or debarred while performing under an approved mentor-protégé agreement, the mentor firm—
(1) May continue to provide assistance to its protégé firms pursuant to approved mentor-protégé agreements entered into prior to the imposition of such suspension or debarment;
(2) May not be reimbursed or take credit for any costs of providing developmental assistance to its protégé firm, incurred more than 30 days after the imposition of such suspension or debarment; and
(3) Must promptly give notice of its suspension or debarment to its protégé firm and the cognizant Component Director, SADBU.
(a) New mentor-protégé agreements may be submitted and approved through September 30, 2005.
(b) Mentors incurring costs prior to September 30, 2008, pursuant to an approved mentor-protégé agreement may be eligible for—
(1) Credit toward the attainment of its applicable subcontracting goals for unreimbursed costs incurred in providing developmental assistance to its protégé firm(s);
(2) Reimbursement pursuant to the execution of a separately priced contract line item added to a DoD contract; or
(3) Reimbursement pursuant to entering into a separate DoD contract upon
(a) Mentor firms will be solely responsible for selecting protégé firms. Mentor firms are encouraged to identify and select concerns that are defined as emerging SDB protégé firms.
(b) The selection of protégé firms by mentor firms may not be protested, except as in paragraph (c) of this section.
(c) In the event of a protest regarding the size or disadvantaged status of an entity selected to be a protégé firm as defined in I-101.5, the mentor firm must refer the protest to the SBA to resolve in accordance with 13 CFR Part 121 (with respect to size) or 13 CFR Part 124 (with respect to disadvantaged status).
(d) For purposes of the Small Business Act, no determination of affiliation or control (either direct or indirect) may be found between a protégé firm and its mentor firm on the basis that the mentor firm has agreed to furnish (or has furnished) to its protégé firm, pursuant to a mentor-protégé agreement, any form of developmental assistance described in I-107(f).
(e) A protégé firm may have only one active DoD mentor-protégé agreement.
(a) An entity seeking to participate as a mentor must apply to the cognizant Component Director, SADBU, to establish its initial eligibility as a mentor. This application may accompany its initial mentor-protégé agreement.
(b) The application must provide the following information:
(1) A statement that the company is currently performing under at least one active approved subcontracting plan negotiated with DoD or another Federal agency pursuant to FAR 19.702, and that the company is currently eligible for the award of Federal contracts or a statement that the entity is a graduated 8(a) firm.
(2) A summary of the company's historical and recent activities and accomplishments under its small and disadvantaged business utilization program.
(3) The total dollar amount of DoD contracts and subcontracts that the company received during the 2 preceding fiscal years. (Show prime contracts and subcontracts separately per year.)
(4) The total dollar amount of all other Federal agency contracts and subcontracts that the company received during the 2 preceding fiscal years. (Show prime contracts and subcontracts separately per year.)
(5) The total dollar amount of subcontracts that the company awarded under DoD contracts during the 2 preceding fiscal years.
(6) The total dollar amount of subcontracts that the company awarded under all other Federal agency contracts during the 2 preceding fiscal years.
(7) The total dollar amount and percentage of subcontracts that the company awarded to all SDB and WOSB firms under DoD contracts and other Federal agency contracts during the 2 preceding fiscal years. (Show DoD subcontract awards separately.) If the company presently is required to submit a Standard Form (SF) 295, Summary Subcontract Report, the request must include copies of the final reports for the 2 preceding fiscal years.
(8) Information on the company's ability to provide developmental assistance to eligible protégés.
(c) A template of the mentor application is available at:
(d) Companies that apply for participation and are not approved will be provided the reasons and an opportunity to submit additional information for reconsideration.
(a) Prospective mentors and their protégés may choose to execute letters of intent prior to negotiation of mentor-protégé agreements.
(b) The agreements should be structured after completion of a preliminary assessment of the developmental needs of the protégé firm and mutual agreement regarding the developmental assistance to be provided to address those needs and enhance the protégé's ability to perform successfully under contracts or subcontracts.
(c) A mentor firm may not require a protégé firm to enter into a mentor-protégé agreement as a condition for award of a contract by the mentor firm, including a subcontract under a DoD contract awarded to the mentor firm.
(d) The mentor-protégé agreement may provide for the mentor firm to furnish any or all of the following types of developmental assistance:
(1) Assistance by mentor firm personnel in—
(i) General business management, including organizational management, financial management, and personnel management, marketing, business development, and overall business planning;
(ii) Engineering and technical matters such as production inventory control and quality assurance; and
(iii) Any other assistance designed to develop the capabilities of the protégé firm under the developmental program.
(2) Award of subcontracts under DoD contracts or other contracts on a noncompetitive basis.
(3) Payment of progress payments for the performance of subcontracts by a protégé firm in amounts as provided for in the subcontract; but in no event may any such progress payment exceed 100 percent of the costs incurred by the protégé firm for the performance of the subcontract. Provision of progress payments by a mentor firm to a protégé firm at a rate other than the customary rate for the firm must be implemented in accordance with FAR 32.504(c).
(4) Advance payments under such subcontracts. The mentor firm must administer advance payments in accordance with FAR Subpart 32.4.
(5) Loans.
(6) Investment(s) in the protégé firm in exchange for an ownership interest in the protégé firm, not to exceed 10 percent of the total ownership interest. Investments may include, but are not limited to, cash, stock, and contributions in kind.
(7) Assistance that the mentor firm obtains for the protégé firm from one or more of the following:
(i) Small Business Development Centers established pursuant to Section 21 of the Small Business Act (15 U.S.C. 648).
(ii) Entities providing procurement technical assistance pursuant to 10 U.S.C. Chapter 142 (Procurement Technical Assistance Centers).
(iii) Historically Black colleges and universities.
(iv) Minority institutions of higher education.
(e) Pursuant to FAR 31.109, approved mentor firms seeking either reimbursement or credit are strongly encouraged to enter into an advance agreement with the contracting officer responsible for determining final indirect cost rates under FAR 42.705. The purpose of the advance agreement is to establish the accounting treatment of the costs of the developmental assistance pursuant to the mentor-protégé agreement prior to the incurring of any costs by the mentor firm. An advance agreement is an attempt by both the Government and the mentor firm to avoid possible subsequent dispute based on questions related to reasonableness, allocability, or allowability of the costs of developmental assistance under the Program. Absent an advance agreement, mentor firms are advised to establish the accounting treatment of such costs and to address the need for any changes to their cost accounting practices that may result from the implementation of a mentor-protégé agreement, prior to incurring any costs, and irrespective of whether costs will be reimbursed or credited.
(f) Developmental assistance provided under an approved mentor-protégé agreement is distinct from, and must not duplicate, any effort that is the normal and expected product of the award and administration of the mentor firm's subcontracts. Costs associated with the latter must be accumulated and charged in accordance with the contractor's approved accounting practices; they are not considered developmental assistance costs eligible for either credit or reimbursement under the Program.
Each mentor-protégé agreement will contain the following elements:
(a) The name, address, e-mail address, and telephone number of the mentor and protégé points of contact;
(b) The NAICS code(s) that represent the contemplated supplies or services to be provided by the protégé firm to the mentor firm and a statement that, at the time the agreement is submitted for approval, the protégé firm, if an SDB or WOSB concern, does not exceed the size standard for the appropriate NAICS code;
(c) A statement that the protégé firm is eligible to participate in accordance with I-102(b);
(d) A statement that the mentor is eligible to participate in accordance with I-102;
(e) A preliminary assessment of the developmental needs of the protégé firm;
(f) A developmental program for the protégé firm specifying the type of assistance the mentor will provide to the protégé and how that assistance will—
(1) Increase the protégé's ability to participate in DoD, Federal, and/or commercial contracts and subcontracts; and
(2) Increase small business subcontracting opportunities in industry categories where eligible protégé's or other small business firms are not dominant in the company's vendor base;
(g) Factors to assess the protégé firm's developmental progress under the Program, including specific milestones for providing each element of the identified assistance;
(h) An estimate of the dollar value and type of subcontracts that the mentor firm will award to the protégé firm, and the period of time over which the subcontracts will be awarded;
(i) A statement from the protégé firm indicating its commitment to comply with the requirements for reporting and for review of the agreement during the duration of the agreement and for 2 years thereafter;
(j) A program participation term for the agreement that does not exceed 3 years. Requests for an extension of the agreement for a period not to exceed an additional 2 years are subject to the approval of the cognizant Component Director, SADBU. The justification must detail the unusual circumstances that warrant a term in excess of 3 years;
(k) Procedures for the mentor firm to notify the protégé firm in writing at least 30 days in advance of the mentor firm's intent to voluntarily withdraw its participation in the Program. A mentor firm may voluntarily terminate its mentor-protégé agreement(s) only if it no longer wants to be a participant in the Program as a mentor firm. Otherwise, a mentor firm must terminate a mentor-protégé agreement for cause;
(l) Procedures for the mentor firm to terminate the mentor-protégé agreement for cause which provide that—
(1) The mentor firm must furnish the protégé firm a written notice of the proposed termination, stating the specific reasons for such action, at least 30 days in advance of the effective date of such proposed termination;
(2) The protégé firm must have 30 days to respond to such notice of proposed termination, and may rebut any findings believed to be erroneous and offer a remedial program;
(3) Upon prompt consideration of the protégé firm's response, the mentor firm must either withdraw the notice of proposed termination and continue the protégé firm's participation, or issue the notice of termination; and
(4) The decision of the mentor firm regarding termination for cause, conforming with the requirements of this section, will be final and is not reviewable by DoD;
(m) Procedures for a protégé firm to notify the mentor firm in writing at least 30 days in advance of the protégé firm's intent to voluntarily terminate the mentor-protégé agreement;
(n) Additional terms and conditions as may be agreed upon by both parties; and
(o) Signatures and dates for both parties to the mentor-protégé agreement.
(a) Upon solicitation or as determined by the cognizant DoD component, mentors will submit—
(1) A mentor application pursuant to I-105, if the mentor has not been previously approved to participate;
(2) A signed mentor-protégé agreement pursuant to I-107;
(3) A statement as to whether the mentor is seeking credit or reimbursement of costs incurred;
(4) The estimated cost of the technical assistance to be provided, broken out per year;
(5) A justification if program participation term is greater than 3 years (Term of agreements may not exceed 5 years); and
(6) For reimbursable agreements, a specific justification for developmental costs in excess of $1,000,000 per year.
(b) When seeking reimbursement of costs, cognizant DoD components may require additional information.
(c) The mentor-protégé agreement must be approved by the cognizant Component Director, SADBU, prior to incurring costs eligible for credit.
(d) The cognizant DoD component will execute a contract modification or a separate contract, if justified pursuant to I-103(b)(3), prior to the mentor's incurring costs eligible for reimbursement.
(e) Credit agreements that are not associated with an existing DoD program and/or component will be submitted for approval to Director, SADBU, Defense Contract Management Agency (DCMA), via the mentor's cognizant administrative contracting officer.
(f) A prospective mentor that has identified Program funds to be made available from a DoD program manager must provide the information in paragraph (a) of this section through the program manager to the cognizant Component Director, SADBU, with a letter signed by the program manager indicating the amount of funding that has been identified for the developmental assistance program.
The following program provisions apply to all reimbursable mentor-protégé agreements:
(a) Assistance provided in the form of progress payments to a protégé firm in excess of the customary progress payment rate for the firm will be reimbursed only if implemented in accordance with FAR 32.504(c).
(b) Assistance provided in the form of advance payments will be reimbursed only if the payments have been provided to a protégé firm under subcontract terms and conditions similar to those in the clause at FAR 52.232-12, Advance Payments. Reimbursement of any advance payments will be made pursuant to the inclusion of the clause at DFARS 252.232-7005, Reimbursement of Subcontractor Advance Payments—DoD Pilot Mentor-Protégé Program, in appropriate contracts. In requesting reimbursement, the mentor firm agrees that the risk of any financial loss due to the failure or inability of a protégé firm to repay any unliquidated advance payments will be the sole responsibility of the mentor firm.
(c) The primary forms of developmental assistance authorized for reimbursement under the Program are identified in I-106(d). On a case-by-case basis, Component Directors, SADBU, at their discretion, may approve additional incidental expenses for reimbursement, provided these expenses do not exceed 10 percent of the total estimated cost of the agreement.
(d) The total amount reimbursed to a mentor firm for costs of assistance furnished to a protégé firm in a fiscal year may not exceed $1,000,000 unless the cognizant Component Director, SADBU, determines in writing that unusual circumstances justify reimbursement at a higher amount. Request for authority to reimburse in excess of $1,000,000 must detail the unusual circumstances and must be endorsed and submitted by the program manager to the cognizant Component Director, SADBU.
(e) Developmental assistance costs that are incurred pursuant to an approved reimbursable mentor-protégé agreement, and have been charged to, but not reimbursed through, a separate contract, or through a separately priced contract line item added to a DoD contract, will not be otherwise reimbursed, as either a direct or indirect cost, under any other DoD contract, irrespective of whether the costs have been recognized for credit against applicable subcontracting goals.
(a) Developmental assistance costs incurred by a mentor firm for providing assistance to a protégé firm pursuant to an approved credit mentor-protégé agreement may be credited as if the costs were incurred under a subcontract award to that protégé, for the purpose of determining the performance of the mentor firm in attaining an applicable subcontracting goal established under any contract containing a subcontracting plan pursuant to the clause at FAR 52.219-9, Small Business Subcontracting Plan, or the provisions of the DoD Comprehensive Subcontracting Plan Test Program. Unreimbursed developmental assistance costs incurred for a protégé firm that is an eligible entity employing the severely disabled may be credited toward the mentor firm's small disadvantaged business subcontracting goal, even if the protégé firm is not a small disadvantaged business concern.
(b) Costs that have been reimbursed through inclusion in indirect expense pools may also be credited as subcontract awards for determining the performance of the mentor firm in attaining an applicable subcontracting goal established under any contract containing a subcontracting plan. However, costs that have not been reimbursed because they are not reasonable,
(c) Other costs that are not eligible for reimbursement pursuant to I-106(d) may be recognized for credit only if requested, identified, and incorporated in an approved mentor-protégé agreement.
(d) The amount of credit a mentor firm may receive for any such unreimbursed developmental assistance costs must be equal to—
(1) Four times the total amount of such costs attributable to assistance provided by small business development centers, historically Black colleges and universities, minority institutions, and procurement technical assistance centers.
(2) Three times the total amount of such costs attributable to assistance furnished by the mentor's employees.
(3) Two times the total amount of other such costs incurred by the mentor in carrying out the developmental assistance program.
(a) Adjustments may be made to the amount of credit claimed if the Director, SADBU, OUSD(AT&L), determines that—
(1) A mentor firm's performance in the attainment of its subcontracting goals through actual subcontract awards declined from the prior fiscal year without justifiable cause; and
(2) Imposition of such a limitation on credit appears to be warranted to prevent abuse of this incentive for the mentor firm's participation in the Program.
(b) The mentor firm must be afforded the opportunity to explain the decline in small business subcontract awards before imposition of any such limitation on credit. In making the final decision to impose a limitation on credit, the Director, SADBU, OUSD(AT&L), must consider—
(1) The mentor firm's overall small business participation rates (in terms of percentages of subcontract awards and dollars awarded) as compared to the participation rates existing during the 2 fiscal years prior to the firm's admission to the Program;
(2) The mentor firm's aggregate prime contract awards during the prior 2 fiscal years and the total amount of subcontract awards under such contracts; and
(3) Such other information the mentor firm may wish to submit.
(c) The decision of the Director, SADBU, OUSD(AT&L), regarding the imposition of a limitation on credit will be final.
(a) Mentors and/or protégés must send a copy of any termination notices to the cognizant Component Director, SADBU, that approved the agreement, and the DCMA administrative contracting officer responsible for conducting the annual review pursuant to I-113.
(b) For reimbursable agreements, mentors must also send copies of any termination to the program manager and to the contracting officer.
(c) Termination of a mentor-protégé agreement will not impair the obligations of the mentor firm to perform pursuant to its contractual obligations under Government contracts and subcontracts.
(d) Termination of all or part of the mentor-protégé agreement will not impair the obligations of the protégé firm to perform pursuant to its contractual obligations under any contract awarded to the protégé firm by the mentor firm.
(e) Mentors and protégés will follow provisions of the mentor-protégé agreement developed in compliance with I-107(k) through (m).
(a) Amounts credited toward applicable subcontracting goal(s) for unreimbursed costs under the Program must be separately identified on the appropriate SF294/SF295 reports from the amounts credited toward the goal(s) resulting from the award of actual subcontracts to protégé firms. The combination of the two must equal the mentor firm's overall accomplishment toward the applicable goal(s).
(b) A mentor firm may receive credit toward the attainment of an SDB subcontracting goal for each subcontract awarded by the mentor firm to an entity that qualifies as a protégé firm pursuant to I-101.3 or I-101.5.
(c) For purposes of calculating any incentives to be paid to a mentor firm for exceeding an SDB subcontracting goal pursuant to the clause at FAR 52.219-26, Small Disadvantaged Business Participation Program—Incentive Subcontracting, incentives will be paid only if an SDB subcontracting goal has been exceeded as a result of actual subcontract awards to SDBs (
(a) Mentors must report on the progress made under active mentor-protégé agreements semiannually for the periods ending March 31st and September 30th throughout the Program participation term of the agreement. The September 30th report must address the entire fiscal year.
(b) Reports are due 30 days after the close of each reporting period.
(c) Each report must include the following data on performance under the mentor-protégé agreement:
(1) Dollars obligated (for reimbursable agreements).
(2) Expenditures.
(3) Dollars credited, if any, toward applicable subcontracting goals as a result of developmental assistance provided to the protégé and a copy of the SF294 and/or SF295 for each contract where developmental assistance was credited.
(4) The number and dollar value of subcontracts awarded to the protégé firm.
(5) Description of developmental assistance provided, including milestones achieved.
(6) Impact of the agreement in terms of capabilities enhanced, certifications received, and/or technology transferred.
(d) A recommended reporting format and guidance for its submission are available at:
(e) The protégé must provide data, annually by October 31st, on the progress made during the prior fiscal year by the protégé in employment, revenues, and participation in DoD contracts during—
(1) Each fiscal year of the Program participation term; and
(2) Each of the 2 fiscal years following the expiration of the Program participation term.
(f) The protégé report required by paragraph (e) of this section may be provided as part of the mentor report for the period ending September 30th required by paragraph (a) of this section.
(g) Progress reports must be submitted—
(1) For credit agreements, to the cognizant Component Director, SADBU, that approved the agreement, and the mentor's cognizant DCMA administrative contracting officer; and
(2) For reimbursable agreements, to the cognizant Component Director, SADBU, the contracting officer, the DCMA administrative contracting officer, and the program manager.
(a) DCMA will conduct annual performance reviews of the progress and accomplishments realized under approved mentor-protégé agreements. These reviews must verify data provided on the semiannual reports and must provide information as to—
(1) Whether all costs reimbursed to the mentor firm under the agreement were reasonably incurred to furnish assistance to the protégé in accordance with the mentor-protégé agreement and applicable regulations and procedures; and
(2) Whether the mentor and protégé accurately reported progress made by the protégé in employment, revenues, and participation in DoD contracts during the Program participation term and for 2 fiscal years following the expiration of the Program participation term.
(b) A checklist for annual performance reviews is available at
Research and Special Programs Administration (RSPA), DOT.
Advance notice of proposed rulemaking; withdrawal and termination of rulemaking.
RSPA is withdrawing an advance notice of proposed rulemaking
Mr. Michael Stevens, Office of Hazardous Materials Standards, Research and Special Programs Administration, 202-366-8553 or Mr. Danny Shelton, Hazardous Materials Division, Federal Motor Carrier Safety Administration, 202-366-6121.
In 1991, the National Transportation Safety Board (NTSB) investigated seven accidents involving cargo tank motor vehicles (CTMVs) of various DOT specifications used for liquid hazardous materials. All of the incidents investigated resulted in rollover of the CTMV and a release of hazardous materials. As a result of the investigation, NTSB published a Hazardous Materials Special Investigation Report on February 2, 1992. In its report, NTSB concluded that in all cases the CTMV rollover protection devices failed to protect the cargo tank manholes and fittings from damage.
On February 4, 1992, NTSB released safety recommendation H-92-10, recommending, in part, that the Research and Special Programs Administration (RSPA; we) and the Federal Highway Administration (FHWA), the predecessor agency to the Federal Motor Carrier Safety Administration (FMCSA), conduct a study to model and analyze the forces and energy involved in CTMV rollover incidents. In addition, in H-92-2, NTSB recommended that RSPA assist FHWA to improve the performance of rollover protection devices by promulgating performance standards to consider those forces identified in the study as acting on the devices during a rollover accident. In response to safety recommendation H-92-10, FHWA contracted with UMTRI to conduct a study of CTMV rollover incidents.
In November 1998, UMTRI released its study, titled “The Dynamics of Tank-Vehicle Rollover and the Implications for Rollover-Protection Devices.” The study examined 882
On November 16, 1999, RSPA published an ANPRM (64 FR 62161) that solicited comments and other supporting data from industry related to the issues of concern in the UMTRI study. The ANPRM asked a series of seventeen questions concerning issues ranging from rollover dynamics to benefit-cost estimates. In addition, the ANPRM asked whether the UMTRI study recommendations were feasible, noting a potential ten-fold increase in costs when compared to current regulatory requirements for rollover protection.
In response to the ANPRM, we received twenty-five comments, eight of which were within the scope of the rulemaking. The comments received were generally negative, and all included similar conclusions regarding cost, efficacy, and feasibility. In addition, commenters stated that there was insufficient evidence to support any major revision of the current overturn protection requirements.
In response to comments received to the ANPRM, FMCSA contracted with Battelle in CY 2001 for an independent analysis of the original UMTRI CTMV rollover study. This study is scheduled for completion in CY 2006. Because of the extended period expected for completing the study and evaluating the findings, we are terminating further rulemaking action under this docket. The termination of this rulemaking action does not preclude our addressing the NTSB recommendations under another docket.
Upon completion of the FMCSA study, RSPA and FMCSA will evaluate the findings and open a new rulemaking docket to solicit industry comments and consider proposals to revise current rollover protection requirements. Accordingly, Docket No. RSPA-99-5921 (HM-213A) is hereby withdrawn.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; extension of public comment period.
On April 13, 2004, the proposed List of Fisheries (LOF) for 2004 under the Marine Mammal Protection Act (MMPA) was published in the
Comments must be received by June 14, 2004.
Send comments to Chief, Marine Mammal Conservation Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via email to
Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in the proposed rule, should be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, by e-mail at
Kristy Long, Office of Protected Resources, 301-713-1401; Kim Thounhurst, Northeast Region, 978-281-9328; Juan Levesque, Southeast Region, 727-570-5312; Cathy Campbell, Southwest Region, 562-980-4060; Brent Norberg, Northwest Region, 206-526-6733; Bridget Mansfield, Alaska Region, 907-586-7642. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.
On April 13, 2004, the proposed List of Fisheries
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would adjust the seasonal split of the North Atlantic LCS regional quota from an equal percentage split of the quota to a 20 to 80 percentage split of the quota between the first and second 2004 semi-annual seasons, respectively. Landings data indicate that the North Atlantic quota would be reached or exceeded in a short period of time during the second semi-annual season under the existing quota allocations. This action could affect all fishermen with commercial shark limited access permits fishing in the North Atlantic region.
Public comments must be received by May 28, 2004.
Comments on the proposed rule may be submitted by mail to the HMS Management Division, 1315 East West Highway, Silver Spring, MD 20910. Please mark the outside of the envelope “Comments on Proposed Rule on North Atlantic LCS Quota Allocation.” Comments may also be made via facsimile (fax) to 301-713-1917. Comments on this proposed rule may also be submitted by e-mail. The address for providing e-mail comments is
For copies of Amendment 1 to the Fisheries Management Plan for Atlantic Tunas, Swordfish, and Sharks or its implementing regulations, please write to Highly Migratory Species (HMS) Management Division (F/SF1), Office of Sustainable Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, or visit the webpage
For additional information regarding the requirements specified in this document, contact Chris Rilling, Karyl Brewster-Geisz, or Heather Stirratt, phone 301-713-2347 or fax 301-713-1917.
On December 24, 2003, NMFS issued a final rule (68 FR 74746) that established the 2004 annual landings quota for LCS at 1,017 metric tons (mt) dressed weight (dw). The final rule also established regional LCS quotas for the commercial shark fishery in the Gulf of Mexico (Texas to the West coast of Florida), South Atlantic (East coast of Florida to North Carolina and the Caribbean), and North Atlantic (Virginia to Maine). The quota for LCS was split between the three regions as follows: 42 percent to the Gulf of Mexico, 54 percent to the South Atlantic, and 4 percent to the North Atlantic. As was done since 1993, the quotas for each region were further split evenly between the 2004 first and second semi-annual fishing seasons. This proposed rule does not alter the annual landings quota or the overall North Atlantic regional quota, but proposes to adjust the seasonal quota split for the North Atlantic region.
Landings data from 2000-2002 indicate that the majority of LCS in the North Atlantic region are landed in the second semi-annual season. Historically, first season landings, including state landings after a Federal closure, have ranged from 6 to 38 percent, with an average of approximately 20 percent of the annual regional quota for the North Atlantic being landed during the first season. Second season landings, including state landings after a Federal closure, have ranged from 62 to 94 percent, with an average of approximately 80 percent of the annual regional quota for the North Atlantic being landed during the second season. In addition, as of April 23, 2004, there were no reported landings of LCS for the North Atlantic region during the first semi-annual season, indicating that the current 50 percent split between the two semi-annual seasons does not reflect the historic or current landings for the North Atlantic region.
As a result, NMFS proposes to adjust the seasonal quota split from an even split (50/50) to a 20/80 split resulting in 8.1 mt dw for the first semi-annual season and 32.6 mt dw for second semi-annual season, not adjusted for any over- or underharvest. This action will not affect the overall landings quota for the fishery or the region (40.7 mt dw for the North Atlantic), but will adjust the available North Atlantic LCS quota in each season to result in a longer second season that more accurately reflects historical and current landings in the region. Any over- or underharvest from both seasons will be considered before establishing the trimester season which begins in 2005.
Since neither the annual quotas, nor the overall regional quotas are proposed to be changed, NMFS does not expect this action to result in any negative economic consequences. This action will likely have a positive economic impact by allowing fishermen to harvest an amount closer to the actual historic landings for the region. Without making this adjustment, the season length would have to be shortened when the lower existing quota was reached, thus preventing fishermen from landing as many sharks as they have historically. The short season would also make effective management and reporting of
Regulations at 50 CFR 635.27(b) provide for adjustments of shark fishing quotas via a framework regulatory action. Adjustments to the quotas are to be filed with the Office of the
A
This proposed rule is published under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
As of October 2003, there were 56 directed shark limited access permits in the North Atlantic region that would be affected by this rule, all of which are considered small entities. This proposed rule would have a positive economic impact because it would allow the fishery to stay open longer, thus providing fishermen with a better opportunity to catch the quota. The positive economic impact is not expected to be significant because the overall quota would not be changed, only the period during which the quota could be harvested. By not making this adjustment, the second semi-annual season length would be considerably shorter because the fishery would have to close when the lower existing quota was reached, the quota would not reflect historic and current landings in the fishery, and there could be a negative economic impact on fishermen due to the early closure and lower landings. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis was prepared.
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this final rule is not significant.
NMFS notified all states, consistent with the Coastal Zone Management Act, of the regional quotas during the rulemaking for Amendment 1 of the HMS FMP. No states indicated that the regional quota requirement was inconsistent with their coastal zone management programs. Thus, NMFS has determined that adjusting the semi-annual regional quota for the North Atlantic region would be consistent to the maximum extent practicable with the enforceable policies of those Atlantic, Gulf of Mexico, and Caribbean coastal states that have approved coastal zone management programs.
The environmental impacts of the overall regional quotas were analyzed in Amendment 1 to the HMS FMP and the final rule published on December 24, 2003, (68 FR 74746). Adjusting the 2004 quota allocation for the North Atlantic region between the first and second semi-annual seasons is not expected to have impacts on endangered species or marine mammal interaction rates beyond those impacts considered in the October 29, 2003, Biological Opinion.
16 U.S.C. 1801
Forest Service, USDA.
Record of Decision—Substantial Impairment Determination being issued in compliance with appeal remand direction.
The Upper and Lower East Fork Cattle & Horse Allotments are located in the White Cloud Mountain range in Custer County, south of Clayton, ID and are administered by the Sawtooth National Recreation Area (SNRA) of the Sawtooth National Forest. The allotments are located in portions of Townships 7, 8, 9, and 10 North and Ranges 15, 16, and 17 East, Boise Meridian.
On August 22, 1972, Congress passed Public Law 92-400 establishing the SNRA. The SNRA was established to protect the area's primary values of fish and wildlife resources, and the natural, scenic, pastoral, and historical values, and recreation attributes. Under Public Law 92-400, livestock grazing may be authorized so long as it does not substantially impair the purposes for which the SNRA was established.
A Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) for the Upper and Lower East Fork Allotment Management Plans were released on September 30, 2003. As stated in the FEIS, one of the determinations to be made in the ROD was whether or not the decision to allow livestock grazing on the Upper and Lower East Fork Allotments would substantially impair SNRA values of the SNRA (see attached map).
The ROD was appealed under the regulations at 36 CFR part 215, claiming in part, that the ROD failed to provide for an adequate and legally sufficient assessment of whether the wildlife values associated with wolves and bighorn sheep on the East Fork Allotments would be substantially impaired by authorizing grazing under the conditions set forth in the EIS and ROD. Upon review of the project record, the FEIS and the ROD for the East Fork Allotments, the Appeal Reviewing Officer found that information is presented in the record regarding the effects of the decision to allow livestock grazing on wolves and bighorn sheep. However, the Appeal Reviewing Officer also found that a conclusion or determination relative to the SNRA Organic Act requirement that actions not substantially impair the purposes for which area was established was not documented in the ROD. In light of this finding, the determination concerning substantial impairment of wildlife values associated with wolves and bighorn sheep related to livestock grazing on the Upper and Lower East Fork Allotment was remanded back to the Forest. The Remand included direction to review the information in the record and make a determination in accordance with the SNRA Organic Act as to whether the authorization of livestock grazing as provided in the ROD will substantially impair wildlife values associated with wolf and bighorn sheep on the East Fork Allotments.
It is my determination that the decision to allow continued use of the Upper & Lower East Fork Allotments, as provided in the September 30, 2003 ROD with required mitigation and management requirements, is consistent with the revised Sawtooth FLRMP and Public Law 92-400 and will not cause substantial impairment of SNRA wildlife values associated with gray wolf or bighorn sheep.
As described in Appendix I of the revised Sawtooth FLRMP, direction for evaluating substantial impairment of the key SNRA values originates in 36 CFR part 292: 36 CFR 292.17 (b)(10): “Substantial impairment means that level of disturbance of the values of the SNRA which is incompatible with the standards of the General Management Plan.” The General Management Plan is defined as “the document setting forth the land allocation and resource decisions for management of the SNRA.” The direction contained in the revised Sawtooth FLRMP represents the General Management Plan as required by Public Law 92-400. The standards for management of wildlife on the SNRA can be found in Chapter III and Appendix I of the revised Sawtooth FLRMP.
As described in the FEIS (page IV-57), the East Fork Allotments are considered wolf habitat and comprise an estimated 15% of the wolf habitat within the SNRA. While depredation of livestock by wolves has occurred on private lands within the East Fork Salmon River watershed, as described on Appendix C, page C-4, no depredation of cattle by wolves has occurred on National Forest System lands within the SNRA, including the East Fork Allotments. I do acknowledge that lethal control activities have taken place within the allotments. However, these activities have been in response to depredations on private lands and are not related to livestock use on the East Fork allotments. While predator control activities by the federal government is a reasonably foreseeable action on the allotments, I believe that the presence of cattle in these allotments contributes a low risk for triggering lethal control activities given that there is no history of cattle being taken by wolves on these allotments. As documented in the Rocky Mountain Wolf Recovery annual reports, wolf depredations within the Central Idaho Recovery Area occurs predominantly on sheep, with some depredation on calves during the spring calving season on private land. Therefore, the presence of cattle on the allotments is not likely to have an effect on presence of wolves on the SNRA. As described in Appendix C of the FEIS, as long as calving and livestock grazing continues on state and private lands in the area, the risk of mortality to wolves from predator control would exist whether or not livestock grazing continues on National Forest System lands within the East Fork Allotments or the SNRA.
The only bighorn sheep winter range on the SNRA occurs within the Lower East Fork Allotment. The Lower East Fork winter range provides an estimated 22% of the winter range for the Salmon Region Unit 36A herd (FEIS III-71).
If no appeals are filed within the 45-day time period, implementation of the decision may occur on, but not before, five business days from the close of the appeal filing period. When appeals are filed, implementation may occur on, but not before, the 15th business day following the date of the last appeal disposition.
This decision on the determination of substantial impairment for the Upper and Lower East Fork Allotments is subject to appeal pursuant to 36 CFR part 215. The appeal must be postmarked or received by the Appeal Deciding Officer within 45 days of the publication of this notice in the Challis Messenger. The Appeals Deciding Officer is: Regional Forester, Intermountain Region, 324 25th Street, Ogden, UT 84401 (801) 625-5605. The office business hours for those submitting hand-delivered appeals are: 8:00-4:30 Monday through Friday, excluding holidays. Appeals must meet the content requirements of 36 CFR 215.14, as published in the
Appeals, including attachments, must be filed within 45 days from the publication date of the notice in the Challis Messenger, the newspaper of record for the SNRA. The publication date in the Challis Messenger newspaper, is the exclusive means for calculating the time to file an appeal. Those wishing to appeal this decision should not rely upon dates or timeframe information provided by any other source.
The 36 part CFR 251 subpart C appeal process for the original East Fork ROD has been on hold until the 36 CFR part 215 appeal process was completed. Applicants for or holders of a special use authorization who originally filed appeals on the East Fork ROD under 36 CFR part 251 do not need to file new appeals. However, if they believe this Record of Decision adds new information that may change or alter their original appeal, they may file an amendment to their appeal. The amendment to the appeal, including the reasons for amendment, must be postmarked or received by the Appeal Reviewing Officer within 45 days of this decision. The notice of the amended appeal should be filed with: Forest Supervisor, Sawtooth National Forest, 2647 Kimberly Road East, Twin Falls, ID 83301-7976. A copy must be filed simultaneously with: Area Ranger, Sawtooth National Recreation Area, HC 64, Box 8291, Ketchum, ID 83340. Appeals must meet the content requirements of 36 CFR 251.90.
Appellants with standing under both 36 CFR part 251 and 36 CFR part 215 may only appeal under one regulation and may not appeal under both.
For additional information concerning this decision or the Forest Service appeal process, contact Sharon LaBrecque, Forest Planning Officer, Sawtooth National Forest; 2647 Kimberly Road East; Twin Falls, Idaho 83301-7976; (208) 737-3200.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Limited access vessels fishing under DAS requirements that have assisted in USCG search and rescue operations or assisted in towing a disabled vessel may apply for Good Samaritan DAS credits at a burden of 30 minutes per application.
Owners or operators of vessels seeking an LOA to participate in any of the exemption programs must request an LOA from the RA. The estimated time required to request an LOA is 5 minutes. Vessels fishing in the NAFO Regulatory Area that wish to be exempt from NE multispecies regulations while transiting the EEZ with NE multispecies on board, or landing NE multispecies in U.S. ports, must request an LOA (5 minutes) in addition to possessing a valid High Seas Fishing Compliance permit under 50 CFR part 300. An LOA (5 minutes) is also required for permitted vessels intending to transfer selected species from one vessel to another, as follows:
Owners of charter/party vessels intending to fish in the Nantucket Lightship Closure Area must request an LOA from the Regional Administrator, with an estimated time of 5 minutes per request. Vessels fishing under Charter/Party regulations in GOM closed areas must obtain a Charter/Party Exemption Certificate for GOM Closed Areas, at an estimated 2 minutes per request.
Limited access sea scallop vessels wishing to participate in either the state waters DAS exemption program or the state waters gear exemption program must notify the RA by VMS or call-in notification. Participants in the sea scallop state waters exemption programs using VMS notification must notify the RA prior to the first trip in the exemption program and prior to the first planned trip in the EEZ, at an estimated 2 minutes per response. Participants in these exemption programs using the call-in system must notify the RA at least 7 days prior to fishing under the exemption, at an estimated 2 minutes per call. If participants using the call-in system wish to withdraw from either state waters exemption program prior to the end of the 7-day designated exemption period requirement, they must also call the RA to notify of early withdrawal, at an estimated 2 minutes per call.
Surf clam and ocean quahog vessel owners or operators are required to call the NOAA Fisheries Office of Law Enforcement (OLE) nearest to the point of offloading prior to the departure of the vessel from the dock. It requires approximately 2 minutes for a vessel owner or operator to notify OLE of the vessel's departure from the dock to fish for surf clams or ocean quahogs in the EEZ.
In the American lobster fishery, the estimated time to designate lobster management areas and order trap tags is 5 minutes; a request for additional tags is estimated to take 2 minutes; and a notification of lost tags is estimated to take 3 minutes. Approximately 2,700 vessels will designate lobster management areas on the annual permit renewal application and order trap tags. Approximately 1,350 vessels will not order their total allowable trap allotment initially, and, therefore, will submit a request for additional trap tags (their remaining balance) later in the permit year; approximately 2,700 vessels will report lost tags and request replacement tags. Approximately 69 vessels will choose to participate in the lobster Area 5 waiver program and will therefore, select, cancel, and re-designate this permit category. The initial lobster Area 5 waiver program designations are estimated to take 15 minutes, requests for the cancellation and selection of an alternative permit category are estimated at 15 minutes, and the return of the suspended lobster trap permit is estimated at 2 minutes.
In the NE multispecies fishery, a request for change in permit category designation requires approximately 2 minutes, and a request for transit to another port by a vessel required to remain in the GOM cod trip limit takes 2 minutes.
In the gillnet fisheries for NE multispecies and monkfish, the burden estimate for calling out of the fishery is 3 minutes. Gillnet category designation, including initial requests for gillnet tags, requires approximately 10 minutes. Requests for additional tags require an estimated 2 minutes. Notification of lost tags and requests for replacement tag numbers also require an estimated 2 minutes. It will take approximately 1 minute to attach each gillnet tag.
Requests for state quota transfers in the bluefish and summer flounder fisheries are estimated to require 1 hour.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent by May 24, 2004 to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent by May 15, 2004 to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
Bureau of the Census, Department of Commerce.
Notice of program.
This notice announces and seeks comments on the establishment of the 2010 Census Redistricting Data Program. Required by law, the program provides States the opportunity to specify the small geographic areas that they wish to receive 2010 decennial census population totals for the purpose of reapportionment and redistricting.
Comments on this notice must be received by July 12, 2004. The deadline for States to notify the Bureau of the Census (Census Bureau) that they wish to participate in Phase 1, the State Legislative District Project, is August 1, 2005.
Please direct all written comments on this notice to the Director, U.S. Census Bureau, Room 2049, Federal Building 3, Washington, DC 20233.
Catherine C. McCully, Chief of the Census Redistricting Data Office, U.S. Census Bureau, Room 3631, Federal Building 3, Washington, DC 20233, telephone (301) 763-4039.
Under the provisions of Title 13, Section 141(c), of the United States Code (U.S.C.), the Secretary of Commerce (Secretary) is required to provide the “officers or public bodies having initial responsibility for the legislative apportionment or districting of each state * * *” with the opportunity to specify geographic areas (
By April 1 of the year following the decennial census, the Secretary is required to furnish the State officials or their designees with population counts for counties, cities, census blocks, and State-specified congressional districts, legislative districts, and voting districts that meet Census Bureau technical criteria.
In accordance with the provisions of 13 U.S.C. 141(c), the Director of the Census Bureau, on behalf of the Secretary of Commerce, announces the establishment of the 2010 Census Redistricting Data Program (Program) and commences Phase 1, the State Legislative District Project, of the Program. An invitation to the officers or public bodies having initial responsibility for legislative reapportionment and redistricting will be issued this fall through the Census Redistricting Data Office. The deadline for States to notify the Census Bureau that they wish to participate in Phase 1, the State Legislative District Project, is August 1, 2005.
As seen in the 1990 and 2000 censuses, the 2010 Census Redistricting Data Program will be partitioned into several phases. State participation in Phase 1 and 2 of the Census 2010 Redistricting Data Program under 13 U.S.C. 141 is voluntary.
Beginning in the Fall of 2004, the Census Bureau will correspond with the legislative leadership of each state to establish a Census 2010 Redistricting Data Program liaison. The Census Bureau will also formally announce, through a subsequent
Beginning in the fall of 2007, States that choose to participate in Phase 2 will receive on a flow basis, geographic products (maps and/or computer files) for their use in submitting to the Census Bureau the voting districts and suggestions for the Census 2010 tabulation census block inventory. A verification phase is offered to those participating States. If States choose not to participate in Phase 2, the Census Bureau cannot ensure that the decennial census 2010 tabulation geography will support the redistricting needs of each State. In mid-2007 the Census Bureau will announce the technical and other criteria for participating in Phase 2, the
By April 1, 2011, the Director of the Census Bureau will, in accordance with 13 U.S.C. 141(c), furnish the Governor and State legislative leaders, both the majority and minority, with 2010 census population counts for standard census tabulation areas (
Beginning in 2011, the Census Bureau will obtain from each State the newly drawn legislative and Congressional district plans and prepare the appropriate data sets based on the new districts.
As the final phase of the Census 2010 Redistricting Data Program, the Census Bureau will work with the States to conduct a thorough review of the program. The intent of this review, and the final report that will be produced as a result, is to provide guidance to the Secretary of Commerce and the Census Bureau Director in planning for the Census 2020 Redistricting Data Program. Please address questions concerning any aspect of the Census 2010 Redistricting Data Program to the person identified in the contact section of this notice.
This rule has been determined to be significant under Executive Order 12866.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce is extending the time limit for the final results of the administrative and new shipper reviews of the antidumping duty order on fresh garlic from the People's Republic of China until June 7, 2004. This extension applies to the administrative review of two exporters, Jinan Yipin Corporation, Ltd., and Shandong Heze International Trade and Developing Company, and the new shipper reviews of two exporters, Jining Trans-High Trading Company and Zhengzhou Harmoni Spice Co., Ltd. The period of review is November 1, 2001, through October 31, 2002.
May 13, 2004.
Minoo Hatten or Mark Ross, AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-1690 and (202) 482-4794, respectively.
On December 26, 2002, the Department of Commerce (the Department) published the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), provides that the Department will issue the final results of an administrative review of an antidumping duty order within 120 days after the date upon which the preliminary determination is published. The Act provides further that the Department may extend that 120-day period to 180 days if it determines that it is not practicable to complete the review within the foregoing time period. Section 751(a)(2)(B)(iv) of the Act also provides that we may extend the deadlines in a new shipper review if we determine that the case is extraordinarily complicated.
It would be extraordinarily complicated to complete the aligned administrative review and new shipper reviews of Jinan Yipin Corporation Ltd., Shandong Heze International Trade and Developing Company, Jining Trans-High Trading Company, and Zhengzhou Harmoni Spice Co., Ltd., within the currently prescribed time period. The Department is still researching and analyzing comments raised after the preliminary results pertaining to the valuation of the factors of production for these companies. Further, on April 23, 2004, we received new factual information concerning one of the respondents. While normally we would not consider accepting new factual information at such a late stage in the review, in this situation, given the nature of the allegations within the submission, we considered it appropriate to accept the information and we require additional time to conduct a thorough evaluation. See April 30, 2004, memorandum from Mark Ross, Program Manager, to Laurie Parkhill, Office Director. Because of these complications and a number of other complex factual and legal questions which are currently before the agency that relate directly to the assignment of antidumping duty margins in this case, it is not practicable to complete the final results by the
Therefore, in accordance with sections 751(a)(2)(B)(iv) and 751(a)(3)(A) of the Act, the Department is extending the time limit for the final results until no later than June 7, 2004.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Countervailing Duty Administrative Review.
On January 7, 2004, the Department of Commerce (the Department) published in the
Based on information received since the
May 13, 2004
Tipten Troidl, Cindy Robinson or Maura Jeffords, Office of AD/CVD Enforcement VI, Group II, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-2786.
On January 7, 2004, the Department published in the
Pursuant to 19 CFR 351.213(b), this review covers only those producers or exporters of the subject merchandise for which a review was specifically requested. Accordingly, this review covers Essar. This review covers the assessment period from April 20, 2001 through December 31, 2002, and eleven programs.
The merchandise subject to this order is certain hot-rolled flat-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths, of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Specifically included within the scope of this order are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.
Steel products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products in which: i) iron predominates, by weight, over each of the other contained elements; ii) the carbon content is 2 percent or less, by weight; and iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
1.80 percent of manganese, or
2.25 percent of silicon, or
1.00 percent of copper, or
0.50 percent of aluminum, or
1.25 percent of chromium, or
0.30 percent of cobalt, or
0.40 percent of lead, or
1.25 percent of nickel, or
0.30 percent of tungsten, or
0.10 percent of molybdenum, or
0.10 percent of niobium, or
0.15 percent of vanadium, or
0.15 percent of zirconium.
All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this order:
Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including,
•SAE/AISI grades of series 2300 and higher.
•Ball bearings steels, as defined in the HTSUS.
•Tool steels, as defined in the HTSUS.
•Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 2.25 percent.
•ASTM specifications A710 and A736.
•USS Abrasion-resistant steels (USS AR 400, USS AR 500).
•All products (proprietary or otherwise) based on an alloy ASTM
•Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTSUS.
The merchandise subject to this order is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled flat-rolled carbon-quality steel covered by this order, including: vacuum degassed fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this order is dispositive.
All issues raised in the case and rebuttal briefs by parties to this review are addressed in the Decision Memorandum, which is hereby adopted by this notice. A list of the issues contained in the Decision Memorandum is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the Main Commerce Building. In addition, a complete version of the Decision Memorandum can be accessed directly on the World Wide Web at http://ia.ita.doc.gov, under the heading “
In accordance with 19 CFR 351.221(b)(5), we calculated an individual subsidy rate for the producer/exporter, Essar, subject to this review. For the period April 20, 2001, through December 31, 2001, we determine the net subsidy
We will instruct the U.S. Customs and Border Protection (CBP) to assess countervailing duties as indicated above. The Department will instruct the CBP to collect cash deposits of estimated countervailing duties in accordance with the assessment rate calculated for 2002 as detailed above, of the f.o.b. invoice price on all shipments of the subject merchandise from the producer/exporter under review, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review.
Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct the CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding conducted under the URAA.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This administrative review and notice are issued and published in accordance with section 751(a)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Ad Hoc Allocation Committee (Committee) will hold a working meeting, which is open to the public.
The Committee meeting will be held Thursday, May 27, 2004 from 8:30 a.m. until business is completed.
The Committee meeting will be held at the Embassy Suites Portland Airport Hotel, Cedar II and III Rooms, 7900 NE 82nd Ave., Portland, OR 97220; telephone: (503) 460-3000.
Mr. John DeVore, Groundfish Fishery Management Coordinator; telephone: (503) 820-2280.
The purpose of the Committee meeting is to develop options for allocations and other management measures for the 2005-06 Pacific Coast groundfish fishery. The Committee will discuss the types of provisions that may be necessary to prevent further overfishing, to reduce bycatch of overfished species in the various groundfish fisheries, and to reduce bycatch in nongroundfish fisheries. In addition, the Committee may evaluate current catch levels of overfished groundfish species and propose inseason adjustments. No management actions will be decided by the Committee. The Committee's role will be development of recommendations for consideration by the Pacific Fishery Management Council at its June meeting in Foster City, CA.
Although non-emergency issues not contained in the meeting agenda may come before the Committee for discussion, those issues may not be the subject of formal Committee action during this meeting. Committee action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Committee's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Scientific research permit modification.
Notice is hereby given that a request for modification of scientific research permit no. 1199 submitted by the Guam Department of Agriculture, Division of Aquatic and Wildlife Resources, Mangilao, Guam, has been granted.
The amendment and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289, fax (301)713-0376; and
Protected Species Coordinator, Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Room 1110, Honolulu, HI 96814-4700; phone (808)973-2935; (808)973-2941.
Patrick Opay, (301)713-1401 or Ruth Johnson, (301)713-2289.
The requested amendment has been granted under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The modification extends the expiration date of the Permit from April 30, 2004, to April 30, 2005, for takes of green (
Issuance of this amendment, as required by the ESA was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of the threatened and endangered species which are the subject of this permit; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. J. Hurd, DSCA/OPS-ADMIN, (703) 604-6575.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 04-06 with attached transmittal, policy justification, and Sensitivity of Technology.
Office of the Secretary, DoD.
Notice to amend a system of records.
The Office of the Secretary is amending one system of records notice in its inventory of records systems subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a).
The changes will be effective on June 14, 2004 unless comments are received that would result in a contrary determination.
Send comments to OSD Privacy Act Coordinator, Records Management Section, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Ms. Juanita Irvin at (703) 601-4722, extension 110.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific amendments to the records system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Defense Systems Management College (DSMC) Mailing Lists (February 2, 1993, 58 FR 10227).
Delete entry and replace with “DAU 06”.
Delete entry and replace with “Defense Acquisition University Mailing Lists”.
Replace second paragraph with “Hard copy back up files (letter and card requests) are located in DAU Press, Defense Acquisition University, Building 206, Fort Belvoir, VA 22060-5565.”
Within entry, replace “Defense Systems Management College” and “DSMC” with “DAU”.
Within entry, replace “DSMC” with “DAU”.
Delete entry and replace with “10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness and Department of Defense Directive 5160.57, Defense Acquisition University.”
Delete entry and replace with “Data is used by DAU to provide a mailing list for the distribution of Defense Acquisition, Technology, and Logistics ‘Acquisition Review Quarterly’, surveys, and graduate registers.”
Delete entry and replace with “Primary file is computer database. Hard copy back-up files are paper records in locked file cabinets.”
Delete entry and replace with “The information (database entries) that constitute the Defense Acquisition University mailing lists are updated on a daily basis as new subscriptions and cancellations come in and as publications are returned for insufficient or undeliverable addresses. The DAU Press collects these changes and forwards them to Actionmail Company as least twice monthly. To further ensure the subscription databases are current the DAU Press, in conjunction with Actionmail, purges each mailing list as new subscriptions and cancellations are received. Destroy or correct individual records when revised or cancelled.”
Defense Acquisition University Mailing Lists.
Primary location: Actionmail Company, 4825 Beech Place, Temple Hills, MD 20748-2030.
Hard copy back up files (letter and card requests) are located in DAU Press, Defense Acquisition University, Building 206, Fort Belvoir, VA 22060-5565.
Former Defense Acquisition University (DAU) students; members of the DAU Policy Guidance Council and Board of Visitors; program managers associated with defense and other government acquisition programs; key acquisition managers throughout the U.S. government; former staff and faculty members, and other individuals who request they be included in the system. Except for program management course graduates, everyone in the system is there by request.
File contains name, class at DAU, job code, mailing address, rank or grade, position title and affiliation.
10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness and DoD Directive 5160.57, Defense Acquisition University.
Data is used by DAU to provide a mailing list for the distribution of Defense Acquisition, Technology, and Logistics “Acquisition Review Quarterly”, surveys, and graduate registers.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the Actionmail Company for the purpose of operating and maintaining the DAU Mailing List system.
The DoD “Blanket Routine Uses” set forth at the beginning of OSD's compilation of systems of records notices applies to this system.
Primary file is computer database. Hard copy back-up files are paper records in locked file cabinets.
Files are retrievable by name, class, data base code, and zip code.
Primary location is a controlled access area. Back-up file storage is in a building, which is locked during non-business hours and is located on a military installation.
The information (database entries) that constitute the Defense Acquisition University mailing lists are updated on a daily basis as new subscriptions and cancellations come in and as publications are returned for insufficient or undeliverable addresses. The DAU collects these changes and forwards them to Actionmail Company as least twice monthly. To further ensure the subscription databases are current the DAU Press, in conjunction with Actionmail, purges each mailing list as new subscriptions and cancellations are received. Destroy or correct individual records when revised or canceled.
Director, DAU Press, Defense Acquisition University, Building 206, Fort Belvoir, VA 22060-5565.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director, DAU Press, Defense Acquisition University, Building 206, Fort Belvoir, VA 22060-5565.
Individuals seeking to access information about themselves contained in this system should address written inquiries to the Director, DAU Press, Defense Acquisition University, Building 206, Fort Belvoir, VA 22060-5565.
Written requests for information should contain the full name of the individual and current address.
For personal visits, the individual must provide acceptable identification, such as a military or other ID card or driver's license.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Information is provided by the individual, employer, staff and faculty of DAU, each DoD Component, and the Office of Personnel Management (including their automated personnel systems).
None.
Defense Logistics Agency, DoD.
Notice to amend systems of records.
The Defense Logistics Agency proposes to amend a system of records notice in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This action will be effective without further notice on June 14, 2004, unless comments are received that would result in a contrary determination.
Send comments to the Privacy Act Officer, Headquarters, Defense Logistics Agency, ATTN: DSS-B, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221.
Ms. Susan Salus at (703) 767-6183.
The Defense Logistics Agency notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The Defense Logistics Agency proposes to amend a system of records notice in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Attorney Personal Information and Applicant Files (February 22, 1993, 58 FR 10854).
Delete entry and replace with ‘S100.90.’
Delete entry and replace with ‘5 U.S.C. 301, Departmental Regulations; 5 U.S.C. 302, Delegation of Authority; 5 U.S.C. 3301, Civil Service, Generally; 10
Delete the paragraph that starts with ‘Parts of these folders’.
Delete entry and replace with ‘Records are maintained in controlled areas accessible only to authorized personnel who require access to perform official duties. Access to personal information is further restricted by the use of passwords, which are changed periodically. Records are secured in locked or guarded buildings, locked offices, or locked cabinets during non-duty hours.’
Replace ‘Applicants’ with ‘Applications’.
Attorney Personal Information and Applicant Files.
Office of General Counsel, HQ DLA, ATTN: DG, 8725 John J. Kingman Road, Stop 2533, Fort Belvoir, VA 22060-6221, and the offices of counsel of the DLA field activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
All DLA attorneys, former DLA attorneys, and applicants for DLA legal positions.
Cover letters, resumes, and Forms submitted by applicants and replies thereto, and records of promotions, courses completed, position descriptions, performance appraisals, personnel actions, educational actions, educational transcripts, recommendations and personal data of DLA attorneys.
5 U.S.C. 301, Departmental Regulations; 5 U.S.C. 302, Delegation of Authority; 5 U.S.C. 3301, Civil Service, Generally; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; DoD Directive 1442.2, Personnel Actions Involving Civilian Attorneys; and E.O. 9397 (SSN).
Applications are used for filing positions in all DLA legal offices. Attorney information folders are maintained for review incident to personnel actions including promotions, performance appraisals, reassignments, etc. and as a general performance and experience record.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ set forth at the beginning of DLA's compilation of systems of records notices apply to this system.
Records are maintained in paper and electronic form.
Filed by surname of attorney or applicant.
Attorney information folders are kept in a locked file cabinet; applicants are kept in file cabinets accessible only to authorized personnel of the Office of Counsel or as determined by Counsel.
Applications are kept for one year from receipt. Attorney information folders are kept indefinitely.
Office of General Counsel, HQ DLA, ATTN: DG, 8725 John J. Kingman Road, Stop 2533, Fort Belvoir, VA 22060-6221.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the Privacy Act Officer, HQ DLA, ATTN: DSS-B, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221, or the Privacy Act Officer of the particular DLA field activity where the application was filed. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individual must provide full name and, if known, date application was submitted.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Privacy Act Officer, HQ DLA, ATTN: DSS-B, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221, or the Privacy Act Officer of the particular DLA field activity where the application was filed. Officials mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individual must provide full name and, if known, date application was submitted.
The DLA rules for accessing records, for contesting contents and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Officer, Headquarters, Defense Logistics Agency, ATTN: DSS-B, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221.
Applicants, employees, co-employees, outside references, supervisors, and personnel offices.
None.
Department of the Navy, DoD.
Notice to amend a system of records.
The Department of the Navy is amending a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on June 14, 2004, unless comments are received which result in a contrary determination.
Send comments to Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations, (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545 or DSN 325-6545.
The Department of the Navy systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records systems being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Awards Information Management System and Records (May 9, 2003, 68 FR 24959).
Replace entry with ‘Navy Military Awards System.’
Delete entry and replace with ‘Navy Department Awards System, Naval Computer Telecommunications Station, 1325 10th Street, Washington Navy Yard, DC 20374-5069; and organizational elements of the Department of the Navy. Official mailing addresses are published in the Standard Navy Distribution List that is available at
Delete entry and replace with ‘All recipients of Navy personal awards, to include the U.S. Coast Guard, and Navy military personnel who receive personal awards from other U.S. Armed Forces.’
Delete entry and replace with ‘Approved individual personal awards for 1967 and continuing; approved unit awards for 1941 and continuing; Navy Department Awards Web Service—File includes awards approved by the Secretary of the Navy and those authorized for approval by subordinate commanders. Record includes service member's name, service number/Social Security Number, award recommended, and award approved. A second section of the file contains activities awarded Unit Awards and the dates of eligibility; microfilm copies of approved World War II—1967 personal awards; Navy Department Awards Web Service electronic data base that includes data extracted from OPNAV form 1650/3, Personal Award Recommendation, such as name, Social Security Number, type of award, approval authority, recommended award, approved award, meritorious start and end dates, service status of recipient, originator of the recommendation, designator, Unit Identification Codes, officer or enlisted, service component, rate/rating, pay grade, number of award recommended, assigned billet of individual, campaign designation, classified or unclassified designated award, date of recommendation, award approved date, approved award, chain of command data, extraordinary heroism determination, letter type, board serial number, pertinent facts, date forwarded to Secretary of the Navy, Board's recommendation, participating command field, Board meeting data, receipt date by Board of Decorations and Medals, name of unit, name of ship, command points of contact that includes telephone numbers and e-mail addresses, etc.’
Delete entry and replace with ‘10 U.S.C. 5013, Secretary of the Navy; Secretary of the Navy Instruction 1650.1G, Navy and Marine Corps Awards Manual; and E.O. 9397 (SSN).’
Delete entry and replace with ‘To maintain record of military personal awards and unit awards and to electronically process award recommendations.’
Delete entry and replace with ‘Electronic, paper, and microfilm records.’
Delete entry and replace with ‘Name, Social Security Number, and individual unit name.’
Delete entry and replace with ‘Navy Department Awards Web Service; OPNAV Form 1650/3, Personal Award Recommendation Form; general orders; military personnel file; medical file; deck logs; command histories; and award letter 1650.’
Navy Military Awards System.
Navy Department Awards System, Naval Computer Telecommunications Station, 1325 10th Street, Washington Navy Yard, DC 20374-5069; and organizational elements of the Department of the Navy. Official mailing addresses are published in the Standard Navy Distribution List that is available at
All recipients of Navy personal awards, to include the U.S. Coast Guard, and Navy military personnel who receive personal awards from other U.S. Armed Forces.
Approved individual personal awards for 1967 and continuing; approved unit awards for 1941 and continuing; Navy Department Awards Web Service—File includes awards approved by the Secretary of the Navy and those authorized for approval by subordinate commanders. Record includes service member's name, service number/Social Security Number, award recommended, and award approved. A second section of the file contains activities awarded Unit Awards and the dates of eligibility; microfilm copies of approved World War II—1967 personal awards; Navy Department Awards Web Service electronic data base that includes data extracted from OPNAV Form 1650/3, Personal Award Recommendation, such as name, Social Security Number, type of award, approval authority, recommended award, approved award, meritorious start and end dates, service status of recipient, originator of the recommendation, designator, Unit Identification Codes, officer or enlisted, service component, rate/rating, pay grade, number of award recommended, assigned billet of individual, campaign designation, classified or unclassified designated award, date of recommendation, award approved date, approved award, chain of command data, extraordinary heroism determination, letter type, board serial number, pertinent facts, date forwarded to Secretary of the Navy, Board's
10 U.S.C. 5013, Secretary of the Navy; Secretary of the Navy Instruction 1650.1G, Navy and Marine Corps Awards Manual; and E.O. 9397 (SSN).
To maintain records of military personal awards and unit awards and to electronically process award recommendations.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ that appear at the beginning of the Navy's compilation of systems of records notices apply to this system.
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Electronic, paper, and microfilm records.
Name, Social Security Number, and individual unit name.
Automated database requires authorized access; password protected; some user sites only have read capability; designated user capability regarding add/delete/change functions. Paper and microfiche records are under the control of authorized personnel during working hours and the office space in which records are located is locked outside official working hours.
Permanent. A duplicate copy of the active file is provided to the National Archives and Records Administration. History files for the years 1967 to 1989 have been transferred to NARA.
Chief of Naval Operations (DNS-37), 2000 Navy Pentagon, Washington, DC 20350-2000.
Individuals seeking to determine whether this system of records contains information about themselves should contact their local Personnel Support Activity of Personnel Support Detachment for a search of their Navy military personnel record or write to the Chief of Naval Operations (DNS-37) 2000 Navy Pentagon, Washington, DC 20350-2000.
Request should include full name, Social Security Number, time period of award, and request must be signed.
Individuals seeking access to records about themselves contained in this system of records should contact their local Personnel Support Activity or Personnel Support Detachment for a search of their Navy military personnel record or write to the Chief of Naval Operations (DNS-37) 2000 Navy Pentagon, Washington, DC 20350-2000.
Request should include full name, Social Security Number, time period of award, and request must be signed.
The Navy's rules for accessing records and contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Navy Department Awards Web Service; OPNAV Form 1650/3, Personal Award Recommendation Form; general orders; military personnel file; medical file; deck logs; command histories; and award letter 1650.
None.
Federal Energy Regulatory Commission, DoE.
Notice.
In compliance with the requirements of Section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due by July 6, 2004.
Copies of the proposed collection of information can be obtained from Michael Miller, Office of the Executive Director, ED-30, 888 First Street NE., Washington, DC 20426. Comments may be filed either in paper format or electronically. Those persons filing electronically do not need to make a paper filing. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 and should refer to Docket No. IC04-555-000.
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments are available for review at the Commission or may be viewed on the Commission's Web site at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC-555 “Records Retention Requirements” (OMB No. 1902-00098) is used by the Commission to implement the statutory provisions of Sections 301, 304 and 309 of the Federal Power Act (FPA) (16 U.S.C. 825, 825c and 825h), Sections 8, 10 and 16 of the Natural Gas Act (NGA) (15 U.S.C. 717-
The regulations for preservation of records establish retention periods, necessary guidelines and requirements to sustain retention of applicable records for the regulated public utilities, natural gas and oil pipeline companies subject to FERC's jurisdiction. These records will be used by the regulated companies as the basis for their required rate filings and reports for the Commission. In addition, the records will be used by the Commission's audit staff during compliance reviews, by enforcement staff during investigations and for special analyses as deemed necessary by the Commission. The records retained by jurisdictional companies as directed by the Commission are the result of a mandatory requirement.
On January 8, 1999 the Commission issued AI99-2-000, an Accounting Issuance providing guidance on records storage media. Specifically, FERC gave each jurisdictional company the flexibility to select its own storage media. The storage media selected must have a life expectancy equal to the applicable record period unless the quality of the data transferred from one media to another with no loss of data would exceed the record period.
On January 27, 2000, FERC issued a final rule amending its records retention regulations for public utilities and licensees, natural gas and oil pipeline companies. These changes included revising the general instructions, shortening various records retention periods. The final rule's objective was to reduce or eliminate burdensome and unnecessary regulatory requirements. FERC anticipated a reduction of 679,800 hours. OMB questioned FERC's estimates of the anticipated reduction and so the existing estimates 1,236,000 for 515 respondents remained on OMB's inventory. (Using these existing figures, the total hours per respondent for recordkeeping purposes equals 2,400 hours.)
It has been over three years since Order No. 617 took effect on January 1, 2001 and there has been sufficient time for jurisdictional companies to implement the final rule's provisions. Therefore, in responding to this notice, FERC is interested in knowing if the jurisdictional companies have obtained substantial reductions in the recordkeeping burden for maintaining their records under the revised retention periods. In addition, the Commission is interested in learning if and what savings were achieved by jurisdictional companies by freeing up storage space formerly used for retaining records. The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR Parts 125, 225 and 356.
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including:
Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements;
(4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond.
Take notice that on April 30, 2004, Algonquin Gas Transmission Company (Algonquin), 5400 Westheimer Court, Houston, Texas 77056-5310, filed in Docket No. CP04-314-000 an application for a Certificate of Public Convenience and Necessity pursuant to section 7 of the Natural Gas Act, and the regulations of the Federal Energy
Algonquin states that its proposal is related to pipeline inspection work necessary for compliance with recent Department of Transportation pipeline safety regulations. Algonquin's I-8 System consists of about 2 miles of 16-inch diameter pipeline located in Braintree that begins at the East Braintree meter and regulation station, and extends north through residential streets to its end at the interconnection with Algonquin's I-9 System at the Potter Street meter and regulation station. Algonquin also states that the current maximum allowable operating pressure (MAOP) of the I-8 System is 750 pounds per square inch gauge (PSIG), while the 24-inch pipelines it connects to immediately upstream and downstream have an MAOP of 1,000 PSIG. Algonquin proposes, subject to the result of the hydrostatic testing, that it be allowed to increase the MAOP of the I-8 System from 750 PSIG to 958 PSIG.
Algonquin states that this will further compliance with the pipeline safety requirements and also enhances the flexibility and reliability of existing services on Algonquin's system. Algonquin also states that the increase in MAOP results in an additional 140,000 dekatherms per day of available firm transportation capacity to the greater Boston and northern New England natural gas markets. Algonquin also seeks a pre-determination of rolled-in rate treatment for this project. Algonquin requests that the Commission issue a final certificate no later than July 8, 2004, in order to meet the natural gas requirements in the Northeast for the 2004-2005 winter period.
The name, address, and telephone number of the person to whom any further questions, correspondence and communications concerning this Application should be addressed is: Steven E. Tillman, General Manager, Regulatory Affairs, Algonquin Gas Transmission Company, P.O. Box 1642, Houston, Texas 77251-1642; Phone: (713) 627-5113; Fax: (713) 627-5947.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
Persons who wish to comment only on the environmental review of this project, or in support of or in opposition to this project, should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the applicant. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Take notice that on April 30, 2004, ANR Pipeline Company (ANR), tendered for filing and approval amendments to Rate Schedule ETS service agreement number 107892 and Rate Schedule FTS-1 service agreement number 109223 between ANR and a subsidiary of We Energies, Wisconsin Electric Power Company (WEPCO). The amendments effectuate a change to Section 3, Contract Quantities, removing the optional Transporter's Use language that ANR offers to Shippers that are impacted by the biannual fuel changes.
ANR requests that the Commission accept and approve the subject negotiated rate agreement amendments to be effective May 1, 2004.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, ANR Pipeline Company (ANR), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Thirty-Seventh Revised Sheet No. 17, to be effective June 1, 2004.
ANR states that the tariff sheet reflects a change in ANR's currently effective cashout surcharge from a negative surcharge of ($0.0004) per Dth to a zero surcharge, effective June 1, 2004.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 3, 2004, ANR Pipeline Company (ANR) tendered for filing and approval a negotiated rate letter agreement between ANR and Eagle Energy Partners, L.L.P. ANR requests that the Commission accept and approve the negotiated rate to be effective May 1, 2004.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 28, 2004, Black Marlin Pipeline Company (“Black Marlin”) submitted to the Federal Energy Regulatory Commission (“Commission”) its annual cash-out report for the calendar year ended December 31, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, Calpine Energy Services, L.P. (CES) filed a Complaint against Gas Transmission Northwest Corporation (GTN) requesting that the Commission find that (1) Calpine's collateral obligation associated with GTN's 2002 Capacity Rationalization and Expansion Program (Expansion Project) does not exceed three months' reservation charges, and (2) GTN can not retroactively apply provisions approved for the first time in Docket No. RP03-70 to Calpine's Expansion Project capacity.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Canyon Creek Compression Company (Canyon) tendered for filing to become part of its FERC Gas Tariff, Third Revised Volume No. 1, Eleventh Revised Sheet No. 6 and Second Revised Sheet No. 6A, to be effective June 1, 2004.
Canyon states that the purpose of this filing is to make a periodic adjustment in Canyon's rates under its cost-of-service tracking mechanism. This filing represents the third tracking filing under Section 37 of the General Terms and Conditions of Canyon's Tariff.
Canyon states that copies of the filing are being mailed to its customers and state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Chandeleur Pipe Line Company (Chandeleur) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Second Revised Sheet No. 73, to become effective on May 1, 2004.
Chandeleur states that the proposed change would update Chandeleur's tariff to reflect its current conditions regarding contracts containing Negotiated Rates.
Chandeleur further states that the principal reason for the tariff change is that effective April 2004, Chandeleur no longer had in effect any Negotiated Rate Agreements.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 3, 2004, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets, to become effective June 3, 2004:
CIG states that the tendered tariff sheets are filed to correct the reporting period used in the calculation of Lost, Unaccounted For and Other Fuel Gas and changes reflecting current practices.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
On April 5, 2004, Colorado Wind Ventures, LLC (Colorado Wind) and PPM Colorado Wind Ventures, Inc. (PPM) (together, Petitioners) filed a request for a partial refund of filing fee in the above-referenced proceedings.
Petitioners explain that they submitted requests for a refund in the amount of $990.00 for filing fees paid when they applied for exempt wholesale generator status. Petitioners state that the requests were made on the grounds that neither Colorado Wind nor PPM are public utilities.
In the instant April 5, 2004 request, Petitioners state that, upon discussion with the Commission's staff, Petitioners are withdrawing the requests for refund of the full $990.00. However, because the filing fee for EWG applications was changed from $990.00 to $870.00 just prior to both Colorado Wind and PPM filing their respective EWG applications, a request for a refund of the $120.00 difference for each filing is justified.
For good cause shown, the request is granted and the refund will be processed accordingly. The refund will be made payable to “Colorado Wind Ventures, LLC and PPM Colorado Wind Ventures, Inc.” and will be forwarded to Sean E. O'Day, Stoel Rives LLP, 900 SW., Fifth Avenue, Suite 2600, Portland, Oregon 97204.
Take notice that on May 4, 2004, Columbia Gulf Transmission Company (Columbia Gulf) tendered for filing a third amendment to service agreement between Columbia Gulf and Stone Energy Company.
Columbia Gulf states that it is making this filing to comply with the Commission's April 20, 2004 Order in RP96-389-083 (107 FERC ¶ 61,075, April 20, 2004 Order). In the April 20, 2004 Order, the Commission accepted revised tariff sheets and the non-conforming agreement between Stone Energy and Columbia Gulf (Stone Agreement) subject to conditions. Columbia Gulf states that the Commission directed Columbia Gulf to either remove the unilateral aspect of Stone Energy's right to adjust its MDQ from the Stone Agreement or, alternately, modify its Tariff and pro forma service agreement to provide the unilateral right to reduce contract demand to all similarly situated shippers. Columbia Gulf asserts that in compliance with the Commission's April 20, 2004 Order, Columbia Gulf has amended the Stone Agreement.
Columbia Gulf states that copies have been mailed to all firm customers, interruptible customers, and affected state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, DeSoto Pipleline Company, Inc. (DeSoto) filed pursuant to section 284.123(b)(2) of the Commission's regulations, a petition for rate approval requesting that the Commission approve the proposed rates as fair and equitable for firm and interruptible transmission services performed under section 311 of the Natural Gas Policy Act of 1978 (NGPA). DeSoto proposes an effective date of May 1, 2004. DeSoto states that it is an intrastate pipeline company providing services through its facilities located in Texas.
Pursuant to section 284.123(b)(2)(ii), if the Commission does not act within 150 days of the date of this filing, the rates will be deemed to be fair and equitable and not in excess of an amount which interstate pipelines would be permitted to charge for similar transportation service. The Commission may, prior to the expiration of the 150 day period, extend the time for action or institute a proceeding to afford parties an opportunity for written comments and for the oral presentation of views, data, and arguments.
Any person desiring to participate in this rate proceeding must file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed with the Secretary of the Commission on or before the date as indicated below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This petition for rate approval is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Destin Pipeline Company, L.L.C. (Destin) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Third Revised Sheet No. 4, proposed to become effective June 1, 2004.
Destin states that the purpose of this filing is to revise its system map in accordance with the provisions of § 154.106 of the Commission Regulations.
Destin states that copies of this filing are being served on all affected shippers and applicable state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, Discovery Gas Transmission LLC submitted to the Federal Energy Regulatory Commission its annual cash-out report for the calendar year ended December 31, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before the date as indicated below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Distrigas of Massachusetts LLC (DOMAC) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Seventeenth Revised Sheet No. 94, to become effective as of June 1, 2004.
DOMAC states that the purpose of this filing is to record semiannual changes in DOMAC's index of customers.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, Dominion Transmission, Inc. (DTI) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following revised tariff sheet to correctly reflect the terms of an existing negotiated transaction with Rochester Gas and Electric Corporation (RG&E):
DTI states that the tariff sheet relates to a specific negotiated rate transaction between DTI and RG&E. DTI requests an effective date of April 1, 2004 for its proposed tariff sheet.
DTI states that copies of its letter of transmittal and enclosures have been served upon DTI's customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 27, 2004, East Tennessee Natural Gas Company (East Tennessee) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Fifth Revised Sheet No. 177, included in Appendix A thereto, and certain service agreements and letter agreements proposed to be effective on May 1, 2004.
East Tennessee states that the purpose of this filing is to implement two negotiated rate agreements and one discounted rate agreement with Carolina Power & Light Company (CPL). Accordingly, East Tennessee filed in Appendix B of the filing the service agreements, and in Appendix C of the filing, the negotiated rate letter agreements and discounted rate letter agreement corresponding to the service agreements with CPL.
East Tennessee states that copies of the filing have been mailed to all affected customers and interested state commissions
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Gas Transmission Northwest Corporation (GTN) tendered for filing to be part of its FERC Gas Tariff, Third Revised Volume No. 1-A., Eighth Revised Sheet No. 15, with an effective date of May 1, 2004.
GTN states that this sheet is being filed to reflect the continuation of a negotiated rate agreement pursuant to evergreen provisions contained in the agreement.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Gas Transmission Northwest Corporation (GTN) tendered for filing to be part of its FERC Gas Tariff, Third Revised Volume No. 1-A., Eighth Revised Sheet No. 15, with an effective date of May 1, 2004.
GTN states that this sheet is being filed to reflect the continuation of a negotiated rate agreement pursuant to evergreen provisions contained in the agreement.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 4, 2004 Gas Transmission Northwest Corporation (GTN) tendered for filing to be part of its FERC Gas Tariff, Third Revised Volume No. 1-A., First Revised Sheet No. 211, First Revised Sheet No. 212, and Second Revised Sheet No. 213, with an effective date of June 3, 2004.
GTN states that it is submitting these revised tariff sheets to clarify the right of first refusal provisions of its tariff.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Great Lakes Gas Transmission Limited Partnership (Great Lakes) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, proposed to be effective April 1, 2004:
Great Lakes states that these tariff sheets are being filed to comply with the Commission's March 31, 2004, Order Accepting Tariff Sheets Subject to Condition, wherein the Commission accepted Great Lakes' tariff sheets as proposed in its February 27, 2004, tariff filing in Docket No. RP04-188-000, as generally complying with the Commission's recent decisions and evolving policy pertaining to creditworthiness issues in the industry, subject to certain modifications. Great Lakes explains that the Order directed it to file revised tariff sheets within thirty (30) days of the March 31 Order consistent with the Commission directives and modifications set forth in that Order.
Great Lakes is seeking clarification or rehearing of certain requirements of the March 31 Order in a separate filing submitted on the same day as the instant filing. This compliance tariff filing includes tariff sheets that incorporate the required modifications, with the exception of the modifications that are the subject of Great Lakes' request for clarification or rehearing.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Great Lakes states that the FT Service Agreement is filed to implement a negotiated rate contract, as required by both Great Lakes' negotiated rate tariff provisions and the Commission's Statement of Policy on Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines and Regulations of Negotiated Transportation Services of Natural Gas Pipelines, issued January 31, 1996, in Docket Nos. RM95-6-000 and RM96-7-000.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004 Great Lakes Gas Transmission Limited Partnership (Great Lakes) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, to become effective January 1, 2004:
Great Lakes states that the tariff sheets listed above are being filed to revise the system and zone maps included in Great Lakes' tariff pursuant to 154.106(c) of the Commission's regulations. The revisions reflect the addition of the Duluth Meter Station and the Lammers Interconnect to the western zone of Great Lakes' system; the closing of the Petoskey Area Office in the central zone; and administrative revisions to the map legend.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 28, 2004, Gulfstream Natural Gas System, L.L.C. (Gulfstream) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Original Sheet No. 8W, reflecting an effective date of March 1, 2004.
Gulfstream states that this filing is being made to implement a negotiated rate transaction under Rate Schedule ITS pursuant to Section 31 of the General Terms and Conditions of Gulfstream's FERC Gas Tariff.
Gulfstream states that Original Sheet No. 8W identifies and describes the negotiated rate transaction, including the exact legal name of the relevant shipper, the negotiated rates, the rate schedule, the contract terms, and the contract quantity.
Gulfstream states that Original Sheet No. 8W includes footnotes where necessary to provide further details on the transactions listed thereon.
Gulfstream states that copies of its filing have been mailed to all affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 3, 2004, Gulfstream Natural Gas System, L.L.C. (Gulfstream) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Original Sheet No. 8X, reflecting an effective date of July 1, 2004.
Gulfstream states that the purpose of this filing is to implement a negotiated rate transaction with Florida Power Corporation under Rate Schedule FTS that was previously approved by the Commission in its June 9, 2003 order in the above-captioned docket.
Gulfstream states that copies of its filing have been mailed to all affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 3, 2004, Gulfstream Natural Gas System, L.L.C. (Gulfstream) filed a supplement to the negotiated rate filing in Docket No. RP02-361-024. In the supplemental filing, Gulfstream tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Sub Original Sheet No. 8V, reflecting an effective date of May 1, 2004. In addition, Gulfstream withdrew Original Sheet No. 8V.
Gulfstream states that this supplemental filing is being made in connection with a negotiated rate transaction, under Rate Schedule PALS, pursuant to Section 31 of the General Terms and Conditions of Gulfstream's FERC Gas Tariff.
Gulfstream also states that Sub Original Sheet No. 8V supersedes and replaces Original Sheet No. 8V. Sub Original Sheet No. 8V identifies and describes the negotiated rate transaction, including the exact legal name of the relevant shipper, the negotiated rate, the rate schedule, the contract terms, and the contract quantity.
Gulfstream further states that Sub Original Sheet No. 8V includes footnotes where necessary to provide further details on the transaction listed thereon.
Gulfstream states that copies of its filing have been mailed to all affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, High Island Offshore System, L.L.C. (HIOS), tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, to become effective June 1, 2004.
HIOS states that the purpose of its filing is to make minor ministerial modifications to the tariff sheets approved by the Commission to implement an NGL Bank on HIOS.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 5, 2004, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Substitute Original Sheet No. 4C, to be effective on July 1, 2004.
Iroquois states that the revised tariff sheet is submitted in compliance with the Paragraph 13 and Ordering Paragraph (A) of the Commission's April 20, 2004 order in the above captioned proceeding.
Iroquois further states that the revised tariff sheet provides that Eastchester Shippers, shall pay applicable rate adjustments on Sheet No. 4A, but will not pay any such assessment more than once for a single transaction.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Kern River Gas Transmission Company (Kern River) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets listed in Appendix A to the filing, proposed to be effective June 1, 2004, or January 1, 2005, as indicated.
Kern River states that the purpose of this filing is to effectuate changes in the jurisdictional base tariff rates applicable to Kern River's jurisdictional services and to implement certain tariff revisions related to the rate changes.
Kern River states that a copy of this filing has been served upon Kern River's customers and interested state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, KeySpan LNG, L.P. (KeySpan LNG) filed in Docket Nos. CP04-223-000 and CP04-293-000 an application pursuant to sections 3 and 7(b) of the Natural Gas Act (NGA) seeking authorization to site, construct and operate liquefied natural gas (LNG) terminal facilities as well as to abandon certain existing facilities in the City of Providence, Rhode Island. KeySpan LNG currently owns and operates an existing LNG Terminal in Providence and proposes to upgrade that facility by converting it to an LNG Terminal capable of receiving marine deliveries and augmenting the facility's existing vaporization system. KeySpan LNG states that services LLC (BG) has committed to contract for the full capacity of the LNG Terminal. KeySpan LNG states that the proposed LNG terminal will connect to Algonquin Gas Transmission Company (Algonquin), an existing interstate pipeline and that Algonquin will file a separate application pursuant to section 7(c) to construct and operate the connecting facilities.
These applications are on file with the Commission and open to public inspection. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the below listed comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Those providing environmental comments will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. The environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters
Motions to intervene, protests and comments may be filed electronically via the internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
Take notice that on April 30, 2004, Kinder Morgan Interstate Gas Transmission LLC (KMIGT) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1-A, the following tariff sheets, with an effective date of June 1, 2004:
KMIGT states that it is filing the above-referenced tariff sheets in compliance with the Commission's “Order Issuing Certificate” dated September 11, 2003 in Docket No. CP03-39-000.
KMIGT states that a copy of this filing has been served upon all parties on the official service list for this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before the protest date as shown below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
On March 31, 2004, the Midwest Independent Transmission System Operator (Midwest ISO) filed a revised Open Access Transmission and Energy Markets Tariff in the above-docketed proceeding. For purposes of the above-captioned docket (and all subdockets in that docket), the following Commission employees are non-decisional authorities and non-decisional employees:
Take notice that on April 30, 2004, National Fuel Gas Supply Corporation (National) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, Sixty Third Revised Sheet No. 9, to become effective May 1, 2004.
National states that Article II, Sections 1 and 2 of the settlement provide that National will recalculate the maximum Interruptible Gathering (“IG”) rate semi-annually and monthly. Further, Section 2 of Article II provides that the IG rate will be the recalculated monthly rate, commencing on the first day of the following month, if the result is an IG rate more than 2 cents above or below the IG rate as calculated under Section 1 of Article II. The recalculation produced an IG rate of $0.64 per dth. In addition, Article III, Section 1 states that any overruns of the Firm Gathering service provided by National shall be priced at the maximum IG rate.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, National Fuel Gas Supply Corporation (National Fuel) tendered for filing an amendment to its compliance filing filed April 9, 2004, in Docket No. RP04-179-000.
National Fuel states that the instant filing is made to amend Service Agreement Nos. F10702 and F10703 between National Fuel and Fortuna Energy, Inc (Fortuna). This amendment changes the commencement date of these two service agreements from April 15, 2004 to May 1, 2004, at the request of the shipper. No changes have been made to Fourth Revised Sheet No. 478 or Service Agreement Nos. F10704 and F10705, as filed on April 9, 2004.
National Fuel states that copies of this filing were served upon its customers and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 first Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 3, 2004, Natural Gas Pipeline Company of America (Natural) tendered for filing to become part of its FERC Gas Tariff, Sixth Revised Volume No. 1, a Seventh Revised Sheet No. 414, to be effective July 1, 2004.
Natural states that the purpose of this filing is to update its list of non-conforming agreements to include a new Firm Transportation Rate Discount Agreement with Green Valley Chemical Corporation under Natural's Rate Schedule FTS.
Natural states that copies of the filing are being mailed to its customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Natural Gas Pipeline Company of America (Natural) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, certain revised tariff sheets, to be effective May 1, 2004.
Natural states that the purpose of this filing is to reflect an amendment to an existing negotiated rate agreement between Natural and The Peoples Gas Light and Coke Company under Natural's Rate Schedule FTS pursuant to section 49 of the General Terms and Conditions of Natural's Tariff.
Natural states that copies of the filing are being mailed to all parties set out on the Commission's official service list in Docket No. RP99-176.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, Northern Border Pipeline Company (Northern) tendered for filing to become part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets to become effective the earlier of September 1, 2004, or on a date the Commission specifies in any future order in this proceeding:
Northern Border states that this filing is made to comply with the Commission's order issued on March 30, 2004, in Docket No. RP04-204-000.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Northern Natural Gas Company (Northern) tendered for filing to become part of its FERC Gas Tariff, Fifth Revised Volume No. 1 the following tariff sheets to be effective June 1, 2004:
Northern states that the filing is being made to adjust its rates effective June 1, 2004 to reflect the rate impact of the return and tax components associated with the System Levelized Account (SLA) balance as of March 31, 2004.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Northern Natural Gas Company (Northern) tendered for filing to become part of its FERC Gas Tariff, Fifth Revised Volume No. 1 the following tariff sheets, with an effective date of June 1, 2004:
Northern states that it is filing the above-referenced tariff sheets to provide for streamlined activation of TFX and LFT service agreements and the associated SMS service with a term of one month or less. Northern states that the new provisions allow the contract to be activated without waiting to receive a signed shipper agreement.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Northern Natural Gas Company (Northern) tendered for filing to become part of its FERC Gas Tariff, Fifth Revised Volume No. 1 the following tariff sheets to be effective June 1, 2004:
Northern states that the revised tariff sheets are being filed in accordance with section 53 of Northern's Tariff. Northern states that this filing establishes the fuel and unaccounted for percentages to be in effect June 1, 2004.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 27, 2004, Northwest Pipeline Corporation (Northwest) tendered for filing and acceptance two Rate Schedule TF-1 negotiated rate service agreements. Northwest also tendered the following tariff sheets as part of its FERC Gas Tariff, Third Revised Volume No. 1, to be effective May 28, 2004.
Northwest states that the purpose of this filing is to submit two Rate Schedule TF-1 service agreements containing negotiated rates for Commission acceptance, and to add these agreements to the list of negotiated rate service agreements in Northwest's tariff.
Northwest states that a copy of this filing has been served upon Northwest's customers and interested state regulatory commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on May 4, 2004, Northwest Pipeline Corporation (Northwest) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheets, to be effective June 4, 2004, and two Rate Schedule TF-1 non-conforming service agreements:
Northwest states that the purpose of this filing is to (1) submit two Rate Schedule TF-1 service agreements containing contract-specific operational flow order provisions that do not conform to the Rate Schedule TF-1 form of service agreement contained in Northwest's tariff, (2) add these agreements to the list of non-conforming service agreements in Northwest's tariff, and (3) remove three service agreements due to termination from the list of nonconforming service agreements in Northwest's tariff.
Northwest states that a copy of this filing has been served upon Northwest's customers and interested state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice, that on April 27, 2004, the Orlando Utilities Commission (OUC) filed revisions to its non-jurisdictional open access transmission tariff to incorporate non-jurisdictional Large Generator Interconnection Procedures, a Large Generator Interconnection Agreement, and OUC's Interconnection Guide to comply with Order Nos. 2003 and 2003-A,
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
On November 30, 2001, Pacific Gas and Electric Company (PG&E), and 27 limited liability companies (collectively, applicants) filed applications for approval of transfers of PG&E's 26 hydropower licenses and 11 transmission-line only licenses for the above-numbered projects to the limited liability companies. The applications included related requests for substitution of applicant and waiver of application amendment regulations in five pending PG&E relicensing proceedings and for a variety of conveyances of rights in project property for power generation, transmission, and distribution functions. Applicants filed the applications in connection with PG&E's Plan of Reorganization in the Bankruptcy Court for the Northern District of California.
The Commission published notice of the applications and over 50 parties filed motions to intervene, several in opposition, including the State of California, which had also contested the PG&E Reorganization Plan in the Bankruptcy Court. On June 24, 2003, applicants filed a “Motion to Hold Proceedings in Abeyance” to provide time for implementing a proposed Settlement Agreement in the bankruptcy case. Pursuant to the Settlement Agreement, PG&E filed a new reorganization plan with the Bankruptcy Court, which the court confirmed in December 2003.
On April 13, 2004, under the requirements of the Settlement Agreement, the applicants filed a notice of withdrawal of their applications.
Take notice that on April 30, 2004, Panhandle Eastern Pipe Line Company, LLC (Panhandle) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, First Revised Sheet No. 3B, to be effective June 1, 2004.
Panhandle states that the purpose of this filing is to revise the tariff map to reflect changes in the pipeline facilities and the points at which service is provided. Panhandle is filing this general location map as a Non-Internet Public document pursuant to instructions in Order No. 630.
Panhandle states that copies of this filing are being served on all affected customers and applicable state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, Petal Gas Storage, L.L.C. (Petal), tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, First Revised Sheet No. 4A, with an effective date of July 1, 2002.
Petal states that the revised tariff sheet is being filed in order to comply with the Commission's March 30, 2004, Order on Rehearing.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before the protest date as shown below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 28, 2004, Pine Needle LNG Company, LLC (Pine Needle) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Title Page (First Revised Sheet No. 0), Second Revised Sheet No. 1, and Second Revised Sheet No. 40 which tariff sheets are proposed to be effective May 28, 2004.
Pine Needle states that the purpose of the instant filing is to make various ministerial changes to the Title Page, to the Table of Contents, and to the Index to Provisions of the General Terms and Conditions.
Pine Needle states that copies of the filing are being mailed to its affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Sea Robin Pipeline Company (Sea Robin) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Fourth Revised Sheet No. 6, to be effective June 1, 2004.
Sea Robin states that the purpose of this filing, made in accordance with the provisions of Section 154.106 of the Commission's Regulations, is to revise the tariff map to reflect changes in the pipeline facilities and the points at which service is provided. Sea Robin is filing this general location map as a Non-Internet Public document pursuant to instructions in Order No. 630.
Sea Robin states that copies of this filing are being served on all affected customers and applicable state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Southern Star Central Gas Pipeline, Inc. (SSC) tendered for filing as part of its FERC Gas Tariff, Original First Revised Volume No. 1 and Original Volume No. 2, the tariff sheets listed in Appendix A to the filing, with an effective date of June 1, 2004.
SSC states that the revisions reflected in the tariff sheets identified in Appendix A effectuate changes in the rates and terms applicable to SSC's jurisdictional services. SSC states that the proposed new rates would produce an increase in annual revenue of approximately $49.4 million above the revenue collected during the base period.
SSC further states that the general rate increase submitted herein is designed to permit SSC to recover various substantial cost increases, primarily related to new construction projects and investment in facilities, experienced by the Company, as well as to reflect changes in the mix of the services being rendered by the Company, since its last general rate filing in Docket No. RP95-136.
SSC states that it has served copies of this filing upon all affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Tennessee Gas Pipeline Company (Tennessee) tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests that the Commission approve a negotiated rate arrangement between Tennessee and Bay State Gas Company. Tennessee requests that the Commission grant such approval effective June 1, 2004.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Tennessee Gas Pipeline Company (Tennessee), tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests that the Commission approve a negotiated rate arrangement between Tennessee and Northern Utilities Inc. Tennessee requests that the Commission grant such approval effective June 1, 2004.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Texas Gas Transmission, LLC (Texas Gas), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, First Revised Sheet No. 51, and First Revised Sheet No. 56, to be effective May 1, 2004.
Texas Gas states that the purpose of this filing is to submit to the Commission a copy of a fully executed non-conforming Short-Term Firm Transportation Agreement between Texas Gas and AK Steel Corporation, dated April 27, 2004; to add this agreement to the list of non-conforming service agreements in Texas Gas' tariff; to remove from that list those non-conforming service agreements that have terminated; and to remove reference to a terminated negotiated rate agreement from Texas Gas' tariff.
Texas Gas states that copies of the tariff sheets are being mailed to all parties on the official service list in this docket, to Texas Gas' official service list, to Texas Gas' jurisdictional customers, and to interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 23, 2004, Trailblazer Pipeline Company (Trailblazer) tendered for filing the Refund Report it issued to Shippers on March 26, 2004. The Refund Report sets out, on a summary and a detailed basis, the refund calculation for Trailblazer's Shippers for the period January 1, 2004, through February 29, 2004.
Trailblazer states that copies of the filing are being mailed to its customers and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before the protest date as shown below. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 27, 2004, Transcontinental Gas Pipe Line Corporation (“Transco”) tendered for filing with the Federal Energy Regulatory Commission the Title Page (First Revised Sheet No. 0), Nineteenth Revised Sheet No. 1, and Ninth Revised Sheet No. 2 to its FERC Gas Tariff, Third Revised Volume No. 1. The proposed effective date of the tariff sheets is May 27, 2004.
Transco states that the purpose of the instant filing is to make various ministerial changes to the Title Page and to the Table of Contents of Transco's tariff.
Transco states that copies of the filing are being mailed to its affected customers and interested state commissions. Transco also notes that copies of this filing are available for public inspection, during regular business hours in a convenient form and place at Transco's main offices at 2800 Post Oak Boulevard in Houston, Texas.
Any person desiring to be heard or to protest this filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with 385.214 and 385.211 of the Commission's rules and regulations. All such motions or protests must be filed as provided in 154.210 of the Commission's regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Trunkline Gas Company, LLC (Trunkline) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, First Revised Sheet No. 6, to be effective June 1, 2004.
Trunkline states that the purpose of this filing is to revise the tariff map to reflect changes in the pipeline facilities and the points at which service is provided. Trunkline is filing this general location map as a NonInternet Public document pursuant to instructions in Order No. 630.
Trunkline states copies of this filing are being served on all affected customers and applicable state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 30, 2004, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheets to become effective April 30, 2004:
Williston Basin states that the revised tariff sheets are being filed to update its system maps through December 31, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on April 29, 2004, Wyoming Interstate Company, LTD (WIC) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 2, the following tariff sheets, to be effective June 1, 2004:
WIC states that the tariff sheets permit WIC to hold capacity with upstream and downstream entities in compliance with Commission's off-system capacity policies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or § 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on April 26, 2004, the New York Independent System Operator, Inc. (NYISO), pursuant to the Commission's order issued March 26, 2004 in Docket No. EL04-56-000, filed proposed revisions to its Open Access Transmission Tariff (OATT) to amend the Wholesale TSC Calculation Information in the OATT for New York State Electric & Gas Corporation to reflect a Commission-approved Stipulation and Agreement in Docket No. EL04-56-000.
The NYISO states that it has served a copy of this filing to all parties that have executed Service Agreements under the NYISO's OATT or Services Tariff, the New York State Public Services Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that on April 26, 2004, Southern California Edison Company (SCE) tendered for filing a refund report in compliance with the Order Approving Uncontested Settlement issued by the Commission issued March 26, 2004, in Docket No. ER03-549-003 (106 FERC ¶ 61,308).
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California and the Southern California Water Company.
Take notice that on April 23, 2004, PJM Interconnection, L.L.C. (PJM) submitted for filing a response to the questions posed by the Commission's Office of Markets, Tariffs, and Rates in a letter issued on April 8, 2004 in Docket No. ER03-1086-001.
Take notice that on April 26, 2004, ISO New England Inc. submitted its compliance filing in response to the Commission's order issued March 25, 2004, Order in Docket No. ER04-121-000.
ISO-NE states that copies of the filing have been served on all parties to this proceeding, NEPOOL Participants, all non-Participant entities that are customers under the NEPOOL Open Access Transmission Tariff, and the utility regulatory agencies of the six New England States.
Take notice, that on April 26, 2004, in compliance with Order No. 2003-A,
Take notice, that on April 26, 2004, the New England Power Pool (NEPOOL) Participants Committee submitted for filing amendments to the NEPOOL Open Access Transmission Tariff designed to modify NEPOOL's standardized generator interconnection procedures and standardized generator interconnection agreement contained in Schedule 22 to the NEPOOL Tariff to comply with Order No. 2003-A,
The NEPOOL Participants Committee states that copies of the materials were sent to the NEPOOL Participants, Non-Participant Transmission Customers and the New England state governors and regulatory commissions.
Take notice, that on April 27, 2004, in compliance with Order No. 2003-A,
Idaho Power Company states that this filing has been served on the parties to the official Service List for Docket No. ER04-437-000 and the Idaho Public Utilities Commission.
Take notice that on April 26, 2004, California Independent System Operator Corporation (ISO) pursuant to section 205 of the Federal Power Act and section 35.13 of the Commission Regulations, submitted for filing its revised Standard Large Generator Interconnection Procedures in compliance with Order No. 2003-A.
Take notice that on April 26, 2004, California Independent System Operator Corporation, Pacific Gas and Electric Company, San Diego Gas and Electric Company, and Southern California Edison Company (collectively the Filing Parties) pursuant to section 205 of the Federal Power Act and § 35.13 of the Commission Regulations, jointly submitted for filing a revised Standard Large Generator Interconnection Agreement in compliance with Order No. 2003-A. The Filing Parties state that the Standard Large Generator Interconnection Agreement is intended to function as a stand alone
Take notice, that on April 26, 2004, the New York Independent System Operator, Inc. (NYISO) and the New York Transmission Owners jointly submitted for filing revised standard interconnection procedures and a standard interconnection agreement to comply with Order No. 2003-A,
The NYISO states that it has served a copy of this filing on all parties in ER04-449-000 and upon all parties that have executed Service Agreements under the NYISO's Open-Access Transmission Tariff or Services Tariff, the New York State Public Service Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice, that on April 28, 2004, Southern Company Services, Inc. (SCS), on behalf of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company and Savannah Electric and Power Company submitted a compliance filing pursuant to the Commission's March 29, 2004, order in
Take notice, that on April 28, 2004, CalPeak Power LLC, on behalf of CalPeak Power—El Cajon, LLC (El Cajon), submitted a compliance filing pursuant to the Commission's order issued April 15, 2004 in Docket Nos. ER04-517-000 and 001 regarding a Must-Run Service Agreement between El Cajon and the California Independent System Operator Corporation.
Take notice, that on April 28, 2004, Illinois Power Company (Illinois Power) tendered for filing Second Revised Sheet No. 10 and First Revised Sheet No. 180 through First Revised Sheet No. 346 to Illinois Power's FERC Electric Tariff Third Revised Volume No. 8, to include the
Take notice that on April 27, 2004, Southern Electric Generating Company (SEGCo), Alabama Power Company (Alabama), and Georgia Power Company (Georgia) (collectively, Southern Companies), in response to the Commission's deficiency letter issued April 13, 2004, filed an amendment to their February 17, 2004, filing regarding an amendment to the power contract between SEGCO, Alabama and Georgia.
Take notice that on April 26, 2004, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO), pursuant to the Commission's order issued March 25, 2004, in Docket No. ER04-571-000, submitted for filing an Agreement for the Provision of Transmission Service to Bundled Retail Load between the Midwest ISO and Ameren Services Company, as agent for Union Electric Company, d/b/a AmerenUE (the Service Agreement).
The Midwest ISO states that it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee
Take notice that on April 27, 2004, MidAmerican Energy Company (MidAmerican), submitted a compliance filing pursuant to the Commission's letter order issued March 30, 2004, regarding an Emergency Electric Interconnection and Operating Agreement between MidAmerican and East River Electric Power Cooperative, incorporating the First Amendment to the Agreement dated January 26, 2004.
MidAmerican states that a copy of the filing has been served on the Iowa Utilities Board, the Illinois Commerce Commission and the South Dakota Public Utilities Commission.
Take notice that on April 27, 2004, Southern Company Services, Inc. (SCS) by and on behalf of Alabama Power Company, Georgia Power Company, Mississippi Power Company, Gulf Power Company and Savannah Electric and Power Company (collectively, Southern Companies), pursuant to the Commission's deficiency letter issued April 13, 2004, filed an amendment to their February 27, 2004, filing regarding a series of bilateral amendments to certain unit power sales agreements with Florida Power and Light Company, Florida Power Corporation and Jacksonville Electric Authority.
Take notice, that on April 28, 2004, Mystic I, LLC (Mystic I) filed revisions to its market-based rate wholesale power sales tariff to conform the tariff to the Commission's requirements and to fix some minor formatting errors. Mystic I has requested an effective date of January 22, 2004.
Take notice, that on April 28, 2004, Fore River Development, LLC filed revisions to its market-based rate wholesale power sales tariff to conform the tariff to the Commission's requirements and to fix some minor formatting errors.
Take notice, that on April 28, 2004, Mystic Development, LLC (Mystic Development) filed revisions to its market-based rate wholesale power sales tariff to conform the tariff to the Commission's requirements and to fix some minor formatting errors. Mystic Development has requested an effective date of January 22, 2004.
Take notice that on April 26, 2004, Aleph One, Inc. (Aleph One) submitted an amendment to its March 30, 2004 application for the Commission to accept for filing Aleph One's Rate Schedule FERC No. 1 (Rate Schedule No. 1). Aleph One requests that the Commission grant Aleph One the blanket authority to make market-based sales of energy and capacity under its Rate Schedule No. 1 and grant Aleph One such waivers and authorizations as have been granted by the Commission to other entities authorized to transact at market-based rates.
Take notice that on April 26, 2004, Westar Energy, Inc. (Westar) submitted for filing an amendment to the Electric Interconnection Agreement between Westar Energy, Inc. and the Kansas City Power & Light Company (KCPL) to establish three additional 12 kV delivery points in the Lenexa, Kansas area. Westar requests an effective date of April 30, 2004.
Westar states that a copy of this filing was served upon the Kansas Corporation Commission and KCPL.
Take notice that on April 26, 2004, Cold Springs Creek, LLC (Cold Springs) submitted for filing a Notice of Cancellation of its Market-Based Rate Authority, Rate Schedule FERC No. 1. Cold Springs has requested an effective date of April 21, 2004.
Take notice that on April 26, 2004, Entergy Services, Inc., (Entergy) on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc., filed proposed modifications to the Commission's Standard Large Generator Interconnection Procedures that are justified by existing and established regional reliability standards applicable to Entergy's service territory pursuant to the Commission's Order No. 2003-A,
Take notice that on April 26, 2004, South Carolina Electric & Gas Company (SCE&G) filed with the Commission revisions to its Open Access Transmission Tariff in order to incorporate modifications to the
Take notice that on April 26, 2004, University Park Energy, LLC (University Park) tendered for filing, under section 205 of the Federal Power Act, its proposed FERC Electric Tariff, Original Volume No. 3, for reactive supply and voltage control from generation sources service provided to the transmission facilities that will be controlled by the PJM Interconnection, L.L.C. (PJM) upon the transfer of operational control of Commonwealth Edison Company's (ComEd) transmission system to PJM. University Park respectfully requests that the Commission accept the proposed Tariff for filing to become effective on the date when operational control of the ComEd transmission system is transferred to PJM.
University Park states that it has mailed a copy of this filing to PJM.
Take notice that on April 27, 2004, pursuant to section 205 of the Federal Power Act and § 35.15 of the Commission's regulations, the Midwest
Take notice that on April 27, 2004, PacifiCorp tendered for filing revisions to PacifiCorp's Open Access Transmission Tariff in compliance with Order No. 2003-A,
PacifiCorp states that copies of this filing were supplied to the Public Utility Commission of Oregon, the Washington Utilities and Transportation Company and PacifiCorp's Network customers.
Take notice that on April 27, 2004, El Paso Electric Company (EPE) tendered for filing a Notice of Cancellation of EPE's Electric Rate Schedule No. 57 between EPE and Texas-New Mexico Power Company. EPE requests an effective date of December 31, 2002.
Take notice that on April 27, 2004, PJM Interconnection, L.L.C. (PJM) submitted for filing notice of NUI Energy Broker's (NUIEB) withdrawal from membership in PJM, a notice of cancellation of NUIEB's non-firm point-to-point service agreement, and a revised Schedule 12 of the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C. deleting NUIEB from the list of PJM members. PJM requests an effective date of May 18, 2004.
PJM states that copies of the filing were served on all PJM members, including NUIEB, and each state electric utility regulatory commission in the PJM region.
Take notice that on April 27, 2004, pursuant to section 205 of the Federal Power Act and Part 35 of the Commission's regulations, The United Illuminating Company (United Illuminating) tendered for filing an Agreement for Supplemental Installed Capacity—Southwest Connecticut (LRP Resources) Between ISO New England Inc., as agent for the Marked Participants in the New England Control Area and United Illuminating. United Illuminating requests an effective date of May 31, 2004.
Take notice that on April 26, 2004, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to section 205 of the Federal Power Act and section 35.13 of the Commission's regulations, 18 CFR 35.13 (2003), submitted for filing a fully executed second revised Interconnection and Operating Agreement among Flying Cloud Power Partners, LLC, the Midwest ISO and Interstate Power and Light Company, a wholly owned subsidiary of Alliant Energy. Midwest ISO has requested a March 31, 2003, effective date.
Midwest ISO states that a copy of this filing was served on all parties.
Take notice, that on April 27, 2004, the Orlando Utilities Commission (OUC) filed revisions to its non-jurisdictional open access transmission tariff to incorporate non-jurisdictional Large Generator Interconnection Procedures, a Large Generator Interconnection Agreement, and OUC's Interconnection Guide to comply with Order Nos. 2003 and 2003-A,
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the Comment Date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on April 29, 2004, Pacific Gas and Electric Company (PG&E) tendered for filing a refund report, in compliance with the Commission's Letter Order issued January 28, 2004 in Docket Nos. ER03-94-001 and ER03-299-001, 106 FERC ¶ 61,052.
PG&E states that copies of PG&E's filing have been served upon each person designated on the official service list in these proceedings.
Take notice that on April 29, 2004, PJM Interconnection, L.L.C. (PJM), in compliance with the Commission's order issued March 30, 2004 in Docket Nos. ER03-404-000. 001 and 003,
PJM states that copies of this filing were served on all persons on the Commission's service list for this proceeding, all PJM members, and each state electric utility regulatory commission in the PJM region.
Take notice that on April 29, 2004, Devon Power LLC, (Devon), Middletown Power LLC, (Middletown) and Montville Power LLC, (Montville) (collectively, Applicants) and NRG Power Marketing Inc., acting as agent for Applicants, tendered for filing First Revised Schedules 1 to the Reliability Must Run Agreements entered into between each Applicant and ISO New England Inc. (ISO-NE).
Applicants state that they have provided copies of the filing to ISO-NE and served each person designated on the official service list compiled by the Secretary in this proceeding.
Take notice that on April 29, 2004, MidAmerican Energy Company (MidAmerican), filed in compliance with the Commission's order issued March 30, 2004, in Docket No. ER04-497-002, “Attachment A, Summary Matrix of MidAmerican Regional Differences on the LGIP and LGIA with April 19, 2004 Updates” and “Attachment B, Open Access Transmission Tariff”, in compliance with Order Nos. 2003 and No. 2003-A, including appropriate showings as required by the Commission for the remaining regional differences.
Take notice that on April 23, 2004, Public Service Company of New Mexico filed a refund report in compliance with the Commission's Letter Order issued April 6, 2004 in Docket No. ER04-534-000.
Take notice that on April 29, 2004, Minnesota Power, on behalf of Rainy River Energy Corporation, submitted a revised market-based rate tariff.
Take notice, that on April 29, 2004, Southern California Edison Company (SCE) tendered for filing the Service Agreement for Wholesale Distribution Service between SCE and Phoenix Wind Power LLC (PWP) (Revised Service Agreement). SCE requests that the Revised Service Agreement become effective on April 30, 2004.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California and PWP.
Take notice that on April 29, 2004, Virginia Electric and Power Company (Dominion Virginia Power) tendered for filing Amended Service Agreement for Network Integration Transmission Service (Retail) and Network Operating Agreement, Amended Service Agreement for Firm Point-To-Point Transmission Service, and Amended Service Agreement for Non-Firm Point-To-Point Transmission between Dominion Virginia Power and Pepco Energy Services, Inc. Dominion Virginia Power requests a waiver of the Commission's regulations to permit an effective date of March 30, 2004.
Take notice that on April 29, 2004, Westar Energy, Inc. (Westar) submitted for filing a Notice of Cancellation of Rate Schedule FERC No. 251, an Electric Supply Agreement between Westar and the City of Troy, Kansas.
Westar states that copies of this filing were served on the City of Troy, Kansas and the Kansas Corporation Commission.
Take notice that on April 29, 2004, PJM Interconnection, L.L.C. (PJM) submitted amendments to Schedule 2 of the PJM Open Access Transmission Tariff to incorporate new and amended revenue requirements for Reactive Supply and Voltage Control from General Sources Service for Allegheny Energy Supply Company, LLC (AE Supply), Monongahela Power Company (Mon Power), Conectiv Bethlehem, LLC (CBLLC), and Midwest Generation, LLC (MWGen).
PJM states that copies of this filing have been served on all PJM members, including AE Supply, Mon Power, CBLLC, and MWGen, and each state electric utility regulatory commission in the PJM region.
Take notice that on April 29, 2004, PJM Interconnection, L.L.C. (PJM), submitted for filing an executed interconnection service agreement (ISA) among PJM, Easton Utilities Commission, and Delmarva Power & Light Company d/b/a Conectiv Power Delivery. PJM requests a waiver of the Commission's 60-day notice requirement to permit a March 30, 2004 effective date for the ISA.
PJM states that copies of this filing were served upon the parties to the agreement and the state regulatory commissions within the PJM region.
Take notice that on April 29, 2004, PJM Interconnection, L.L.C. (PJM), submitted for filing revisions to the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C. establishing procedures pursuant to which PJM and the PJM Market Monitoring Unit shall provide confidential information to state commissions. PJM requests an effective date of June 29, 2004 for the amendments.
PJM state that copies of this filing have been served on all PJM members, and each state electric utility regulatory commission in the PJM region.
Take notice that on April 29, 2004, Avista Corporation filed a Notice of Termination of Avista Corporation Rate Schedule FERC No. 12, a Long-Term Service Agreement with Sovereign Power, Inc. to be effective June 30, 2004.
AVA states that it has served a copy upon Sovereign Power, Inc.
Take notice that on April 29, 2004, the Midwest Independent Transmission System Operator, Inc., (Midwest ISO), certain of the Midwest ISO Transmission Owners, including certain of the Midwest Stand Alone Transmission Companies, GridAmerica LLC, and the GridAmerica Companies, jointly submitted for filing revisions to the Midwest ISO Agreement to implement the distribution to the GridAmerica Companies of revenues from the Regional Through and Out Rate collected under Schedule 14 of the Midwest ISO Open Access Transmission Tariff.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on April 30, 2004, Vermont Electric Cooperative, Inc. (VEC) submitted a compliance filing pursuant to the Commission's order issued February 12, 2004 in Docket No. ER04-341-001, 106 FERC ¶ 61,131, (2004). VEC has requested an effective date of April 1, 2004.
Take notice that on April 30, 2004, Midwest Independent Transmission System Operator, Inc. (Midwest ISO), pursuant to section 205 of the Federal Power Act and section 35.12 of the Commission's regulations, 18 CFR 35.12 (2003), submitted for filing an Interconnection and Operating Agreement among Blue Sky Wind Farm LLC, the Midwest ISO and American Transmission Company LLC. Midwest ISO has requested an effective date of April 20, 2004.
Midwest ISO states that a copy of this filing was served on all parties.
Take notice that on April 30, 2004, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to section 205 of the Federal Power Act and section 35.12 of the Commission's regulations, 18 CFR 35.12 (2003), submitted for filing an Interconnection and Operating Agreement among Green Field Wind Farm LLC, the Midwest ISO and American Transmission Company LLC. Midwest ISO has requested an effective date of April 20, 2004.
Midwest ISO states that a copy of this filing was served on all parties.
Take notice that on April 30, 2004, Tampa Electric Company (Tampa Electric) tendered for filing revised rate schedule sheets containing updated rates for emergency interchange service and scheduled/short-term firm interchange service under its interchange contracts with each of 17 other utilities. Tampa Electric also tendered for filing revised sheets for inclusion in its open access transmission tariff (OATT) that contain an updated system average transmission loss percentage. Tampa Electric requests that the revised rate schedule and tariff sheets be made effective on May 1, 2004, and therefore requests waiver of the Commission's notice requirement.
Tampa Electric states that a copy of the filing has been served upon each of the parties to the affected interchange contracts and each customer under its OATT, as well as the Florida and Georgia Public Service Commissions.
Take notice that on April 30, 2004, Commonwealth Edison Company (ComEd) tendered for filing an executed Standard Large Generator Interconnection Agreement between ComEd and Power Partners Midwest, LLC, for Power Partners' Kinnikinnik Wind Farm generating facility. ComEd has requested an effective date of May 1, 2004.
Take notice that on April 30, 2004, Tampa Electric Company (Tampa Electric) tendered for filing open access transmission tariff sheets containing the Large Generator Interconnection Procedures and the Large Generator Interconnection Agreement that the Commission adopted in Order Nos. 2003 and 2003-A,
Tampa Electric states that copies of the filing have been served on the customers under Tampa Electric's open access transmission tariff and the Florida Public Service Commission.
Take notice that on April 30, 2004, Fairless Energy, LLC (Fairless) tendered
Fairless states that a copy of the filing was served on PJM, PECO Energy Company and the relevant state utility commissions.
Take notice that on April 30, 2004, Wabash Valley Power Association, Inc. (Wabash Valley) tendered for filing its initial rate filing. Wabash Valley states that it will become a FERC-jurisdictional public utility on July 1, 2004, by virtue of its repurchase of its outstanding U.S. Department of Agriculture Rural Utilities Service debt. Therefore, in compliance with Section 205 of the Federal Power Act (16 U.S.C. ( 824d), Wabash Valley is filing with the Commission all of its rates, terms and conditions of service.
Wabash Valley state that copies of this filing were served upon Wabash Valley's Members, Duke Vermillion, LLC, PSI Energy, Inc., Cinergy Corp., Indiana Municipal Power Agency, Northern Indiana Public Service Company, Steel Dynamics, Inc. and the public utility commissions in Illinois, Indiana, Michigan and Ohio.
Take notice that on April 30, 2004, PJM Interconnection, L.L.C. (PJM) submitted for filing certain conforming changes to the PJM Open Access Transmission Tariff and PJM Operating Agreement related to the integration of Commonwealth Edison Company (including Commonwealth Edison Company of Indiana, Inc.) (ComEd) into PJM on May 1, 2004, as established by the Commission's April 27, 2004 order in Docket Nos. ER04-521-002,
PJM states that copies of this filing have been served on all PJM members and utility regulatory commissions in the PJM Region and on all persons listed on the official service lists compiled by the Secretary for these proceedings.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) on the natural gas pipeline facilities proposed to be constructed and abandoned by ANR Pipeline Company (ANR) in the above-referenced docket.
The EA was prepared to satisfy the requirements of the National Environmental Policy Act. The staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major Federal action significantly affecting the quality of the human environment.
The EA assesses the potential environmental effects of:
• Constructing 4.7 miles of 30-inch-diameter pipeline to replace 4.7 miles of 14-inch-diameter pipeline, to be abandoned by removal, in Washington County, Wisconsin, including one new pig launcher and two new pig receivers (Mainline Replacement);
• Constructing 3.5 miles of 8-inch-diameter pipeline looping in Brown County, Wisconsin, including one new pig launcher and receiver and two tie-in facilities (Denmark Lateral Loop); and
• Modifying its existing Mountain Compressor Station in Oconto County, Wisconsin, including re-wheeling of a compressor unit and addition of a gas cooler and new piping and appurtenant facilities.
The purpose of the proposed project is to expand the capacity of ANR's natural gas pipeline facilities for transporting an additional 143,400 million British thermal units per day of natural gas along its 30-inch-diameter pipeline in Wisconsin.
The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference and Files Maintenance Branch, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
Copies of the EA have been mailed to Federal, state and local agencies, public interest groups, interested individuals, newspapers, and parties to this proceeding.
Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send two copies of your comments to: Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Label one copy of the comments for the attention of the Gas Branch 2, PJ11.2.
• Reference Docket No. CP04-051-000; and
• Mail your comments so that they will be received in Washington, DC on or before June 7, 2004.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you too keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments may be filed electronically via the Internet in lieu of paper;
The Commission's Rules of Practice require all interveners filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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l. With this notice, we are initiating consultation with the Washington State Historic Preservation Officer (SHPO), as required by 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
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Historically, Cowlitz PUD has operated the Swift No. 2 Project as a
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You may also register online at
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice soliciting final terms and conditions.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR Part 380 (Order No. 486, 51 FR 47897, the Office of Energy Projects has reviewed South Carolina Gas & Electric Company's application requesting authorization to permit Westshore Ltd. use of Saluda Project lands and waters. The permit would authorize the installation of a floating dock capable of berthing 40 boats at the existing Spinners Marina. The Marina is located on Lake Murray, Leesville, and Saluda County, South Carolina. A Draft Environmental Assessment (DEA) has been prepared for the proposal.
The DEA contains the staff's analysis of the potential environmental impacts of the project and concludes that approving the request would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the DEA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission Web site at
You may also register online at
Any comments should be filed within 30 days from the date of this notice and should be addressed to Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please affix Project No. P-516-388 to all comments. Comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
For further information, contact Jean Potvin at (202) 502-8928.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for license for the Vermilion Valley Hydroelectric Project and has prepared an Environmental Assessment (EA) for the project. The project is located on Mono and Warm Creeks, near Shaver Lake, within the county of Fresno, California. The project occupies federal lands within the Sierra National Forest, covering a total of 2,202 acres.
The EA contains the staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's Web site at
Any comments should be filed within 45 days from the issuance date of this notice, and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please affix “Vermilion Valley Hydroelectric Project No. 2086” to all comments. Comments may be filed electronically via Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18
After reviewing the comments, the Commission will decide whether to revise this EA and will notify the parities accordingly.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Tewksbury-Andover Lateral Project involving construction and operation of facilities by Tennessee Gas Pipeline Company (Tennessee) in Middlesex and Essex Counties, Massachusetts.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
Tennessee wants to transport up to 25,000 decatherms per day for Bay State Gas Company and Wyeth Pharmaceuticals, Inc. (Wyeth) in Essex County, Massachusetts. Tennessee seeks authority to construct and operate:
• 5.31 miles of 8-inch-diameter pipeline (Tewksbury-Andover Lateral) in Middlesex and Essex Counties, Massachusetts;
• A pig launcher facility in Middlesex County, Massachusetts, at milepost (MP) 270B-102+1.53 of Tennessee's Concord Lateral, that is the point of interconnection with the proposed Tewksbury-Andover Lateral; and
• A pig receiver facility and meter station at MP 5.31 of the proposed Tewksbury-Andover Lateral, at the Wyeth facility in Essex County, Massachusetts.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would require about 30.2 acres of land. Following construction, about 12.5 acres would be maintained as new permanent right-of-way and aboveground facility sites. The remaining 24.4 acres of land would be restored and allowed to revert to its former use.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping”. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission staff requests public comments on the scope of the issues to address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
In the EA we
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Endangered and threatened species;
• Public safety.
We will also evaluate potential alternatives to the proposed project or portions of the project, and make recommendations, if appropriate, on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA might be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section beginning on page 4.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal (including alternative routes), and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas,
• Label one copy of the comments for the attention of Gas Branch 3.
• Reference Docket No. CP04-60-000.
• Mail your comments so that they will be received in Washington, DC, on or before June 11, 2004.
The Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
We might mail the EA for comment. If you are interested in receiving it, please return the Information Request (appendix 4). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must provide 14 copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities. By this notice we are also asking governmental agencies, especially those in appendix 3, to express their interest in becoming cooperating agencies for the preparation of the EA.
Additional information about the project may be obtained through the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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All documents (original and eight copies) must be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please put the project name “Baker River Project” and project number “P-2150-033” on the first page of all documents.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of
Comments and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
l. This application is not ready for environmental analysis at this time.
m. The Baker River Project has two developments. The Upper Baker development consists of the following existing facilities: (1) A 312-foot-high by 1,200-foot-long concrete gravity dam impounding Baker Lake with a surface area of about 4,980 acres at a normal full pool elevation of 727.77 feet mean sea level (msl); (2) a 122-foot-long, 59-foot wide concrete and steel powerhouse at the base of the dam containing two turbine-generator units, Unit No. 1 with an authorized capacity of 52,400 kilowatts (kW) and Unit No. 2 with an authorized capacity of 38,300 kW; (3) a 115-foot-high by 1,200-foot-long earth and rock-fill dam, known as West Pass dike, located in a depression about 1,500 feet north of Upper Baker dam; (4) a 22-foot-high by 3,000-foot-long earth-filled dike, known as Pumping Pond dike, which impounds Depression Lake with a surface area of 44 acres at a normal full pool elevation of 699 feet msl; (5) a water recovery pumping station adjacent to Pumping Pond dike; (6) fish passage facilities and fish spawning facilities; and (7) appurtenant facilities.
The Lower Baker development consists of the following existing facilities: (1) A 285-foot-high by 550-foot-long concrete thick arch dam impounding Lake Shannon with a surface area of about 2,278 acres at a normal full pool elevation of 442.35 feet msl; (2) a concrete intake equipped with trashracks and gatehouse located at the dam's left abutment; (3) a 1,410-foot-long concrete and steel-lined pressure tunnel; (4) a concrete surge tank near the downstream end of the pressure tunnel; (5) a 90-foot-long, 66-foot-wide concrete and steel powerhouse containing one turbine-generator unit, Unit No. 3 with an authorized capacity of 79,330 kW; (6) a 750-foot-long, 115-kilovolt transmission line; (7) fish passage facilities including a 150-foot-long by 12-foot-high barrier dam; and (8) appurtenant facilities.
n. A copy of the license application is available for review in the Commission's Public Reference Room or may be viewed on the Commission's Web site
You may also register online at
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice soliciting comments and final terms and conditions.
Take notice that a technical conference will be held on Monday, May 24, 2004, at 9:30 a.m., in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. A room has also been reserved for Tuesday, May 25, 2004, if there is a need to continue the conference.
The conference will be held to discuss El Paso Natural Gas Company's filing in Docket No. RP04-251-000 to comply with Order No. 637 and the related filing in Docket No. RP04-248-000 regarding imbalance management services.
All interested parties and Staff are permitted to attend.
For further information, contact Robert Petrocelli, (202) 502-8447, or Ingrid Olson, (202) 502-8406.
Pursuant to Rule 601 of the Commission's Rules of Practice and Procedure, 18 CFR 385.601 (2001), the Dispute Resolution Service will convene a teleconference call on Monday, June 7, 2004, to discuss how the Alternative Dispute Resolution processes and procedures may assist in resolving disputes related to fish entrainment matters in the above-docketed proceeding. A representative from the Federal Energy Regulatory Commission, Office of Energy Projects will participate on this call. This teleconference call will utilize an 800 call-in phone number, beginning at 2 p.m. central time and 3 p.m. eastern time and will last approximately one hour. This call is
Steven A. Shapiro and Jerrilynne Purdy, acting for the Dispute Resolution Service, will convene the teleconference call. They will be available to communicate in private prior to the teleconference call. If a party has any questions regarding the teleconference call and would be interested in participating in the call, please contact Mr. Shapiro at 202/502-8894 or Ms. Purdy at 202/502-8671 or e-mail
The Federal Energy Regulatory Commission (FERC) staff will hold a telephone conference call in the above-referenced dockets on Thursday, May 13, 2004 at 12 Noon (9 a.m. Pacific Time).
The purpose of the telephone conference call is to establish a time and place for the initial technical conference to address the issues raised in these dockets, to establish a procedural schedule for additional technical conferences, and to prepare an agenda of the issues the parties want to discuss during the technical conferences.
Interested parties are invited to call telephone number 1-888-606-9535. Parties will need to provide the leader's name, Julia Lake, and the passcode, Lake, in order to access the call.
Parties are encouraged to submit any additional questions or issues they wish to have addressed during the telephone conference call. Questions about the telephone conference call should be directed to: Julia A. Lake, Office of the General Counsel—Markets, Tariffs and Rates, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-502-8370,
Take notice that the technical conference scheduled for Thursday, May 6, 2004, at 10 a.m. (EST) is hereby cancelled.
This notice provides additional information concerning the May 10, 2004 technical conference to discuss the Standards of Conduct for Transmission Providers governing the relationships between transmission providers and their energy affiliates. (
This agenda has been organized to reflect the interests of those who have submitted questions. As a result of feedback regarding the organization of this conference, the afternoon sessions will continue in one group rather than break out into smaller groups as suggested in the previous Notice. Also, in response to several inquiries, attire for the conference will be business casual.
Standing microphones will be available to enable those in the audience to participate in the discussion, as issues arise. Capitol Connection offers the opportunity to listen to the conference from remote locations. It is available for a fee, live over the Internet, by phone or via satellite. Persons interested in receiving the audiocast, or who need information on making arrangements should contact David Reininger or Julia Morelli at Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection Web site at
Questions about the conference should be directed to: Demetra Anas, Office of Market Oversight and Investigations, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-502-8178.
The times listed herein are approximate. The discussion of particular topics may take more or less time.
Take notice that the U.S.-Canada Power System Outage Task Force and the Federal Energy Regulatory Commission will co-host a technical workshop on Friday, May 14, 2004 to discuss the improvement of North American electric reliability standards and other recommendations included by the U.S.-Canada Power System Outage Task Force in its April 2004 Report (available at:
The workshop will be held at the Commission's Washington, DC headquarters, 888 First St., NE., 20426. The workshop is scheduled to begin at 9 a.m. (EST) in the Commission Meeting Room, Room 2-C.
Representatives from the United States Department of Energy, Natural Resources Canada, Ontario Ministry of Energy, North American Electric Reliability Council, and related industry representatives will participate with FERC Commissioners in addressing the immediate and long-term measures that may be taken to ensure a reliable electric system, a critical element to the economic and national security of both the United States and Canada.
Selected panelists will be invited to participate in this workshop; requests to make presentations will not be entertained. All interested persons may attend.
Transcripts of the conference will be immediately available from Ace Reporting Company (202-347-3700 or 1-800-336-6646) for a fee. They will be available for the public on the Commission's eLibrary system seven calendar days after FERC receives the transcript. Additionally, Capitol Connection offers the opportunity for remote listening and viewing of the conference. It is available for a fee, live over the Internet, by phone or via satellite. Persons interested in receiving the broadcast, or who need information on making arrangements should contact David Reininger or Julia Morelli at the Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection Web site at
For more information about the conference, please contact Sarah McKinley at 202-502-8004 (
Take notice that the U.S.-Canada Power System Outage Task Force and the Federal Energy Regulatory Commission will co-host a technical workshop on Friday May 14, 2004, to discuss the improvement of North American electric reliability standards and other recommendations included by the U.S.-Canada Power System Outage Task Force in its April 2004 Report (available at:
The workshop will be held at the Commission's Washington, DC headquarters, 888 First St., NE., 20426. The workshop is scheduled to begin at 9 a.m. in the Commission Meeting Room, Room 2-C.
Representatives from the United States Department of Energy, Natural Resources Canada, Ontario Ministry of Energy, North American Electric Reliability Council, and related industry representatives will participate with FERC Commissioners in addressing the immediate and long-term measures that may be taken to ensure a reliable electric system, a critical element to the economic and national security of both the United States and Canada.
Selected panelists will be invited to participate in this workshop; requests to make presentations will not be entertained. All interested persons may attend.
Transcripts of the conference will be immediately available from Ace Reporting Company (202-347-3700 or 1-800-336-6646) for a fee. They will be available for the public on the Commission's eLibrary system seven calendar days after FERC receives the transcript. Additionally, Capitol Connection offers the opportunity for remote listening and viewing of the conference. It is available for a fee, live over the Internet, by phone or via satellite. Persons interested in receiving the broadcast, or who need information on making arrangements should contact David Reininger or Julia Morelli at the Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection Web site at
For more information about the conference, please contact Sarah
(1) Opening comments by the Governmental conveners (15 minutes).
• Natural Resources Canada and Ontario Ministry of Energy.
• U.S. Department of Energy and Federal Energy Regulatory Commission.
(2) Status of current industry standards and policies (45 minutes).
• Content of existing standards, policies and guidelines (NERC).
• Timing of evolution into clear, ANSI-process-adopted standards
Invited speakers and brief opportunity for audience comments.
(3) Based on the findings and recommendations of the blackout investigation, discussion of any necessary changes in the reliability standards (60 minutes).
• Existing topics in current standards/policies/guidelines (NERC).
• Discussion of areas that require standards not currently covered in the NERC standards (NERC, FERC).
• Discussion of priorities to complete or clarify the most reliability-critical issues and standards first.
Invited speakers and brief opportunity for audience comments.
(4) Timing and process for standards revision and development (60 minutes).
• Next steps, process and schedule (NERC).
• Any modifications needed to next steps, process and schedule given reliability needs?
• Appropriate role for the governments and agencies.
Invited speakers from NERC and brief opportunity for audience comments.
(5) Reliability readiness audits and other issues not covered above (30 minutes).
(6) Closing comments and commitments (20 minutes).
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of exempt and prohibited off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive an exempt or prohibited off-the-record communication relevant to the merit's of a contested on-the-record proceeding, to deliver a copy of the communication, if written, or a summary of the substance of any oral communication, to the Secretary.
Prohibited communications will be included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications will be included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of prohibited and exempt communications recently received in the Office of the Secretary. The communications listed are grouped by docket numbers. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Exempt:
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of exempt and prohibited off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive an exempt or prohibited off-the-record communication relevant to the merit's of a contested on-the-record proceeding, to deliver a copy of the communication, if written, or a summary of the substance of any oral communication, to the Secretary.
Prohibited communications will be included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications will be included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of prohibited and exempt communications recently received in the Office of the Secretary. The communications listed are grouped by docket numbers. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Prohibited:
Exempt:
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 12, 2004.
Submit your comments, referencing docket ID number OECA-
Maureen Lydon, Office of Compliance, Mail code: 2221-A, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-564-4046; fax number: 202-564-0027; e-mail address:
EPA has established a public docket for this ICR under Docket ID number OECA-2004-0027, which is available for public viewing at the Enforcement and Compliance Docket and Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Enforcement and Compliance Docket and Information Center is (202) 566-1514. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA within 60 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Environmental Protection Agency (EPA).
Notice of request for nominations.
The U.S. Environmental Protection Agency invites nominations to fill vacancies on its National Advisory Council for Environmental Policy and Technology (NACEPT). The Agency seeks qualified senior-level decision makers from diverse sectors throughout the United States to be considered for appointments. EPA encourages interested applicants to send their resumes and qualifications as soon as possible.
Submit nominations to: Ms. Sonia Altieri, Designated Federal Officer, Office of Cooperative Environmental Management, U.S. Environmental Protection Agency (1601E), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Sonia Altieri, Designated Federal Officer for NACEPT, U.S. Environmental Protection Agency (1601E), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone (202) 233-0061, e-mail:
NACEPT is a federal advisory committee under the Federal Advisory Committee Act, PL 92463. The U.S. Environmental Protection Agency established NACEPT in 1988 to provide independent advice to the EPA Administrator on a broad range of environmental policy, technology and management issues. NACEPT consists of a representative cross-section of EPA's partners, stakeholders, and constituents who provide timely advice and recommendations on environmental issues, and serve as a sounding board for new strategies that EPA is developing.
We anticipate the Council addressing issues related to environmental technology, environmental foresight, and collaborative approaches to environmental problems. NACEPT will provide advice in a timely manner and operate as a proactive and strategic body that will alert EPA to potential environmental challenges and issues that could impact the Agency's ability to protect public health and the environment, and options to address them.
Members are appointed by the Administrator of EPA for two year terms with the possibility of reappointment. The Council usually meets 3-4 times annually and the average workload for the members is approximately 10 to 15 hours per month. Members serve on the Council in a voluntary capacity; however, EPA does provide reimbursement for travel expenses associated with official government business.
Maintaining a balance and diversity of expertise, knowledge, and judgement is an important consideration in the selection of members. Potential candidates should possess the following qualifications:
Recognized expert in the subject matter to be addressed by NACEPT
EPA is seeking nominees for representation from all sectors, in particular federal, state, local and tribal agencies, academia, industry, environmental justice, and non-governmental organizations. Nominations for membership must include a resume and short biography describing the educational and professional qualifications of the nominee and the nominee's current business address and daytime telephone number.
Environmental Protection Agency (EPA).
Notice of meeting.
The next meeting of the Good Neighbor Environmental Board, a Federal advisory committee that reports to the President and Congress on environmental and infrastructure projects along the U.S. border with Mexico, will take place in McAllen, Texas on June 9 and 10, 2004. It is open to the public.
On June 9, the meeting will begin at 8:30 a.m. (registration at 8 a.m.) and end at 5:30 p.m. On June 10, the Board will hold a routine business meeting from 8 a.m. until 12 noon. (registration at 7:30 a.m.).
The meeting site is the Mesquite Room of the Holiday Inn Civic Center, 200 West Expressway 83, McAllen, Texas 78501. The phone number is 956-686-2471.
Elaine M. Koerner, Designated Federal Officer for the Good Neighbor Environmental Board. U.S. Environmental Protection Agency Region 9 Office, 75 Hawthorne St., San Francisco, California 94105. Tel: Region 9 office: (415) 972-3437; D.C. office (202) 233-0069. E-mail:
Agenda: On the first day of the two-day meeting, which begins at 8:30 a.m. (registration at 9 a.m.), the Board has invited a number of water resources experts to speak on water management challenges and opportunities in the border region. The first day of the meeting will also include a public comment session and an update from Board members on recent projects being carried out by their respective organizations. It will conclude at 5:30 p.m. The second day of the meeting, June 10, begins at 8 a.m., with registration at 7:30 a.m. It will take the form of a routine business meeting, including the status of disseminating the latest report as well as discussion about the next report. The meeting will end at noon.
Public Attendance: The public is welcome to attend all portions of the meeting. Members of the public who plan to file written statements and/or make brief (suggested 5-minute limit) oral statements at the public comment session are encouraged to contact the Designated Federal Officer for the Board prior to the meeting.
Meeting Access: Individuals requiring special accommodation at this meeting, including wheelchair access to the conference room, should contact the Designated Federal Officer at least five business days prior to the meeting so that appropriate arrangements can be made.
Background: The Good Neighbor Environmental Board meets three times each calendar year at different locations along the U.S.-Mexico border and in Washington, DC. It was created by the Enterprise for the Americas Initiative Act of 1992. An Executive Order
Environmental Protection Agency (EPA).
Notice.
EPA's Office of Pesticide Programs will hold a public meeting of the Pesticide Program Dialogue Committee on May 25 and 26, 2004. An agenda is being developed and will be posted by May 18, 2004, on EPA's website at
The meeting will be held on Tuesday, May 25, 2004, from 9 a.m. to 5 p.m., and Wednesday, May 26, 2004, from 9 a.m. to noon.
The meeting will be held at the National Rural Electric Cooperative Association (NRECA) Conference Center, 4301 Wilson Boulevard, Arlington, Virginia (703) 907-5500. The NRECA Conference Center is located approximately three blocks from the Ballston Metro Station and about a fifteen minute taxi ride from Ronald Reagan National Airport.
Margie Fehrenbach, Office of Pesticide Programs (7501C), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (703) 308-4775; fax number: (703) 308-4776; e-mail address:
This action is directed to the public in general; however, persons may be interested who work in agricultural settings or persons who are concerned about implementation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); and the amendments to both of these major pesticide laws by the Food Quality Protection Act (FQPA), (Public Law 104-170) of 1996. Potentially affected entities may include but are not limited to: Agricultural workers and farmers; pesticide industry and trade associations; environmental, consumer and farmworker groups; pesticide users and growers; pest consultants; State, local and tribal governments; academia; public health organizations; food processors; and the public. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
The Office of Pesticide Programs is entrusted with responsibilities for helping to ensure the safety of the American food supply, providing protection and education of those who apply or are exposed to pesticides occupationally or through use of products from unreasonable risk, and providing general protection of the environment and special ecosystems from potential risks posed by pesticides.
PPDC was established under the Federal Advisory Committee Act (FACA), Public Law 92-463, in 1995 and has been renewed every 2-years since that time. The current Charter was approved in November 2003 for another 2-year term and a copy of the PPDC Charter has been filed with appropriate Committees of Congress and the Library of Congress. New members to the PPDC have been appointed for this term. The PPDC Charter and list of new members can be found at EPA's website at:
The PPDC provides advice and recommendations to the Office of Pesticide Programs on a broad range of pesticide regulatory, policy and program implementation issues associated with evaluating and reducing risks from use of pesticides. The following sectors are represented on the PPDC: Pesticide industry and trade associations; environmental/public interest groups;
Environmental protection, Agriculture, Agricultural workers, Chemicals, Foods, Pesticides, Pests, Registration, Tolerance Reassessment, Fees, Public Health.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative cost recovery settlement concerning the Tyler Refrigeration Pit Superfund Site located in Smyrna, Kent County, Delaware (Proposed Settlement). The Proposed Settlement with the Clark Equipment Company, Inc. (Settling Party) has been approved by the Attorney General, or his designee, of the United States Department of Justice pursuant to section 122(h) of CERCLA, 42 U.S.C. 9622(h). The Proposed Settlement was signed by the Regional Administrator of the United States Environmental Protection Agency (EPA), Region III, on April 15, 2004, pursuant to section 122(h) of CERCLA, 42 U.S.C. 9622(h), and is subject to review by the public pursuant to this notice.
The Proposed Settlement resolves EPA's claim for past response costs under section 107 of CERCLA, 42 U.S.C. 9607, against the Settling Party, and requires the Settling Party to make a payment of $49,429.00 towards EPA's past response costs. This payment represents reimbursement of the remainder of costs EPA incurred in overseeing the Settling Party's performance of a Remedial Investigation at the Site as well as a partial reimbursement of other unreimbursed past costs incurred by EPA in connection with the Site as set forth in the EPA Financial Management System as of November 4, 2003.
For thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the Proposed Settlement. EPA will consider all comments received and may withdraw or withhold consent to the Proposed Settlement if such comments disclose facts or considerations which indicate the Proposed Settlement is inappropriate, improper, or inadequate. EPA's response to any written comments received will be available for public inspection at the U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.
Comments must be provided on or before June 14, 2004.
The Proposed Settlement is available for public inspection at the U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103. A copy of the Proposed Settlement may be obtained from Ms. Suzanne Canning, Legal Program Coordinator (3RC00), U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, PA 19103; telephone number (215) 814-2476. Comments should reference the “Tyler Refrigeration Pit Superfund Site” and “EPA Docket No. CERCLA-03-2004-0179CR” and should be forwarded to Ms. Canning at the above address.
Yvette Hamilton-Taylor (3RC43), Senior Assistant Regional Counsel, (215) 814-2636, U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029.
Office of Administration, Executive Office of the President.
Notice of meeting.
The Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (“Commission”) will meet in closed session on Wednesday, May 26, 2004 and Thursday, May 27, 2004 in its offices in Arlington, Virginia.
Executive Order 13328 established the Commission for the purpose of assessing whether the Intelligence Community is sufficiently authorized, organized, equipped, trained, and resourced to identify and warn in a timely manner of, and to support the United States Government's efforts to respond to, the development of Weapons of Mass Destruction, related means of delivery, and other related threats of the 21st Century. This meeting will consist of briefings and discussions involving classified matters of national security, including classified briefings from representatives of agencies within the Intelligence Community; Commission discussions based upon the content of classified intelligence documents the Commission has received from agencies within the Intelligence Community; and presentations concerning the United States' intelligence capabilities that are based upon classified information. While the Commission does not concede that it is subject to the requirements of the Federal Advisory Committee Act (FACA), 5 United States Code Appendix 2, it has been determined that the May 26-27 meeting would fall within the scope of exceptions (c)(1) and (c)(9)(B) of the Sunshine Act, 5 United States Code, Sections 552b(c)(1) & (c)(9)(B), and thus could be closed to the public if FACA did apply to the Commission.
Wednesday, May 26, 2004 (10 a.m. to 5 p.m.) and Thursday, May 27, 2004 (9 a.m. to 2 p.m.).
Members of the public who wish to submit a written statement to the Commission are invited to do so by facsimile at (202) 456-7921. Comments also may be sent to the Commission by e-mail at
Brett C. Gerry, Associate General Counsel, Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, by facsimile, or by telephone at (703) 414-1200.
Federal Communications Commission.
Notice.
This document announces that the 2003 revenue threshold between Class A carriers and Class B carriers is increased to $123 million. The 2003 revenue threshold between larger Class A carriers and mid-sized carriers is increased to $7.240 billion.
Debbie Weber, Pricing Policy Division, Wireline Competition Bureau at (202) 418-0812.
This is a summary of the Commission's public notice released May 4, 2004. This notice announces the inflation-adjusted 2003 revenue thresholds used for classifying carrier categories for various accounting and reporting purposes: (1) Distinguishing Class A carriers from Class B carriers; and (2) distinguishing larger Class A carriers from mid-sized carriers. The revenue threshold between Class A carriers and Class B carriers is increased to $123 million. The revenue threshold between larger Class A carriers and mid-sized carriers is increased to $7.240 billion. The revenue thresholds for 2003 were determined as follows:
Federal Communications Commission.
Federal Housing Finance Board.
Notice.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Board (Finance Board) has submitted the information collection entitled “Monthly Survey of Rates and Terms on Conventional, 1-Family, Nonfarm Loans,” commonly known as the Monthly Interest Rate Survey or MIRS to the Office of Management and Budget (OMB) for review and approval of a three-year extension of the OMB control number, which is due to expire on June 30, 2004.
Interested persons may submit comments on or before June 14, 2004.
Send comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget, Attention: Desk Officer for the Federal Housing Finance Board, Washington, DC 20503.
David Roderer, Financial Analyst, Risk Monitoring Division, Office of Supervision, by e-mail at
The Finance Board's predecessor, the former Federal Home Loan Bank Board (FHLBB), first provided data concerning a survey of mortgage interest rates in 1963. No statutory or regulatory provision explicitly required the FHLBB to conduct the MIRS although references to the MIRS did appear in several federal and state statutes. Responsibility for conducting the MIRS was transferred to the Finance Board upon dissolution of the FHLBB in 1989.
Statutory references to the MIRS include the following:
• Pursuant to their respective organic statutes, Fannie Mae and Freddie Mac use the MIRS results as the basis for the annual adjustments to the maximum dollar limits for their purchase of conventional mortgages.
• Also in 1989, Congress required the Chairperson of the Finance Board to take necessary actions to ensure that indices used to calculate the interest rate on adjustable rate mortgages (ARMs) remain available.
• Congress indirectly connected the high cost area limits for mortgages insured by the Federal Housing Administration (FHA) of the Department of Housing and Urban Development to the MIRS in 1994 when it statutorily linked these FHA insurance limits to the purchase price limitations for Fannie Mae.
• The Internal Revenue Service uses the MIRS data in establishing “safe-harbor” limitations for mortgages purchased with the proceeds of mortgage revenue bond issues.
• Statutes in several states and U.S. territories, including California, Michigan, Minnesota, New Jersey, Wisconsin and the Virgin Islands, refer to, or rely upon, the MIRS.
The Finance Board uses the information collection to produce the MIRS and for general statistical purposes and program evaluation. Economic policy makers use the MIRS data to determine trends in the mortgage markets, including interest rates, down payments, terms to maturity, terms on ARMs and initial fees and charges on mortgage loans. Other federal banking agencies use the MIRS results for research purposes. Information concerning the MIRS is regularly published on the Finance Board's Web site (
The likely respondents include a sample of savings associations, mortgage companies, commercial banks and savings banks. The information collection requires each respondent to complete FHFB Form 10-91 or a submission using the MIRS software on a monthly basis.
The OMB number for the information collection is 3069-0001. The OMB clearance for the information collection expires on June 30, 2004.
The Finance Board estimates the total annual number of respondents at 359, with 12 responses per respondent. The estimate for the average hours per response is 30 minutes. The estimate for the total annual hour burden is 2,154 hours (359 respondents × 12 responses × 0.5 hours).
In accordance with the requirements of 5 CFR 1320.8(d), the Finance Board published a request for public comments regarding this information collection in the
The Finance Board requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of Finance Board functions, including whether the information has practical utility; (2) the accuracy of the Finance Board's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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.
By the Federal Housing Finance Board.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following Ocean Transportation Intermediary licenses have been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984, as amended by the Ocean Shipping Reform Act of 1998 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, effective on the corresponding date shown below:
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 7, 2004.
Board of Governors of the Federal Reserve System, May 7, 2004.
In accordance with section 10(a) of the Federal Advisory Committee Act as amended (5 U.S.C., appendix 2), announcement is made of an Agency for Healthcare Research and Quality (AHRQ) Technical Review Committee (TRC) meeting. This TRC's charge is to review contract proposals and provide recommendations to the Director, AHRQ, with respect to the technical merit of proposals submitted in response to a Request for Proposals (RFP) regarding “Data Management and Computer Programing Support”. The RFP was published in the Federal Business Opportunities on March 15, 2004.
The upcoming TRC meeting will be closed to the public in accordance with the Federal Advisory Committee Act (FACA), section 10(d) of 5 U.S.C., appendix 2, implementing regulations, and procurement regulations, 41 CFR 101-6.1023 and 48 CFR 315.604(d). The discussions at this meeting of contract proposals submitted in response to the above-referenced RFP are likely to reveal proprietary information and personal information concerning individuals associated with the proposals. Such information is exempt from disclosure under the above-cited FACA provision and procurement rules that protect the free exchange of candid views and facilitate Department and Committee operations.
This program is authorized under Sections 301 and 317E (b) of the Public
Measurable outcomes of the program will be in alignment with the following performance goal for the National Center for HIV, STD and TB Prevention (NCHSTP): Eliminate TB in the United States.
To assist in the categorization of the activities as human subjects research (HSR) and not HSR, activities will be divided into two phases, which do not necessarily have chronological significance.
Awardee activities for this program are as follows:
• Develop clinical trials training programs and materials, including Good Clinical Practice procedures for the full range of staff needed in a large, community-based TB vaccine trial. This will also include specialized training for establishing local human subjects review capacity according to international standards.
• Develop laboratory capacity for advanced TB diagnosis and immunologic assays required for TB vaccine trials.
• Develop the logistics and systems needed to conduct a randomized, controlled TB vaccine trial that will meet regulatory standards.
• Develop capacity or referral systems to treat and cure patients with TB.
• Conduct epidemiologic studies to characterize the TB prevalence and incidence in the proposed study area.
• Conduct observational cohort studies that will mimic the conduct of a vaccine trial.
• Develop and refine information on TB prevalence and incidence in neonatal and adolescent cohorts in the proposed vaccine trials site.
In a cooperative agreement, CDC staff is substantially involved in the program activities, above and beyond routine grant monitoring.
CDC Activities for this program are as follows:
• Collaborate in providing epidemiologic and technical assistance in developing infrastructure by assisting training, hiring personnel, provision of laboratory equipment, and protocol development for the observational cohort studies.
• Collaborate to provide epidemiologic and technical assistance in the development of clinical trials training programs that include good clinical practice (GCP) guidelines and ethical standards in HSR.
• Assist in the development of a research protocol for Human Subjects Research review by all cooperating institutions participating in the research project.
• Facilitate collaboration among international partners such as, but not limited to, World Health Organization (WHO), International Union Against Tuberculosis and Lung Disease, the Royal Netherlands Tuberculosis Association (KNCV), Ministries of Health (MOH), and other relevant governmental and nongovernmental organizations doing TB control and public health activities.
• Collaborate to provide epidemiologic and other technical assistance (
• Assist in developing and refining information on TB prevalence and incidence in neonatal and adolescent cohorts in the vaccine trials sites.
According to U.S. Federal regulations Title 45 CFR Part 46, project activities fall into three basic categories: Not HSR, HSR requiring Institutional Review Board (IRB) review, and HSR exempt from IRB review. Participation by any Federal employee in project activities as specified by the above CDC activities requires either a determination that a component activity of the project is not HSR, or if HSR then approval from either a full CDC IRB or appropriate CDC Official for IRB exemption from full review. Approvals are required prior to fund disbursement for that particular component of the project. IRB approved components of the project must be reviewed annually for continuation until project completion (which often extends beyond subject enrollment). Any change to planned project activities as specified in application for various HSR approvals may necessitate a redetermination of not HSR status (in consultation with CDC HSR contacts), whereas IRB approved HSR components of the project require approved IRB amendments.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as documented in required reports), and the determination that continued funding is in the best interest of the Federal Government.
Applications may be submitted by all foundations uniquely qualified to test new TB vaccines, as demonstrated by the implementation and conduct of a large-scale community-based TB vaccine field trial.
Eligibility is limited in response to Congressional appropriation language. Funds are available to both International and domestic applicants. The limitation of the announcement was restricted by Congressional directive appropriation language. While the Congressional intent is not clearly described, it is CDC's understanding that this is in response to success by foundations in this type of vaccine research, especially
Matching funds are not required for this program.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive, and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
If your application is incomplete or non-responsive to the requirements listed below, it will not be entered into the review process. You will be notified that your application did not meet submission requirements.
Any individual with the skills, knowledge, and resources necessary to carry out the proposed research is invited to work with their institution to develop an application for support. Individuals from underrepresented racial and ethnic groups as well as individuals with disabilities are always encouraged to apply for CDC programs.
Title 2 of the United States Code section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, or loan.
To apply for this funding opportunity, use application form PHS 398 (OMB number 0925-0001 rev. 5/2001). Forms and instructions are available in an interactive format on the CDC Web site, at the following Internet address:
Forms and instructions are also available in an interactive format on the National Institutes of Health (NIH) Web site at the following Internet address:
Your research plan should address activities to be conducted over the entire project period.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal government. Your DUNS number must be entered on line 11 of the face page of the PHS 398 application form. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
This announcement is the definitive guide on application submission address and deadline. It supersedes information provided in the application instructions. If your application does not meet the deadline above, it will not be eligible for review, and will be discarded. You will be notified that your application did not meet the submission requirements.
CDC will not notify you upon receipt of your application. If you have a question about the receipt of your application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: 770-488-2700. Before calling, please wait two to three days after the application deadline. This will allow time for applications to be processed and logged.
Your application is subject to Intergovernmental Review of Federal Programs, as governed by Executive Order (EO) 12372. This order sets up a system for state and local governmental review of proposed federal assistance applications. You should contact your state single point of contact (SPOC) as early as possible to alert the SPOC to prospective applications, and to receive instructions on your state's process. Click on the following link to get the current SPOC list:
Restrictions, which must be taken into account while writing your budget, are as follows: None.
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement should be less than 12 months of age.
Awards will not allow reimbursement of pre-award costs.
Applications may not be submitted electronically at this time.
You are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures of effectiveness must relate to the performance goals
The goals of CDC-supported research are to advance the understanding of biological systems, improve the control and prevention of disease, and enhance health. In the written comments, reviewers will be asked to evaluate the application in order to judge the likelihood that the proposed research will have a substantial impact on the pursuit of these goals.
The scientific review group (which will include non-Federal experts) will address and consider each of the following criteria in assigning the application's overall score, weighting them as appropriate for each application. The application does not need to be strong in all categories to be judged likely to have major scientific impact and thus deserve a high priority score. For example, an investigator may propose to carry out important work that by its nature is not innovative, but is essential to move a field forward.
The criteria are as follows:
In addition to the above criteria, the following items will be considered in the determination of scientific merit and priority score:
Does the application adequately address the requirements of 45 CFR Part 46 for the protection of human subjects? This will not be scored; however, an application can be disapproved if the research risks are sufficiently serious and protection against risks is so inadequate as to make the entire application unacceptable.
Does the application adequately address the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in the proposed research? This includes: (1) The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation; (2) The proposed justification when representation is limited or absent; (3) A statement as to whether the design of the study is adequate to measure differences when warranted; and (4) A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
The reasonableness of the proposed budget and the requested period of support in relation to the proposed research.
Applications will be reviewed for completeness by the Procurement and Grants Office (PGO), and for responsiveness by NCHSTP. Incomplete applications and applications that are non-responsive to the eligibility criteria will not advance through the review process. Applicants will be notified that their application did not meet submission requirements.
Applications that are complete and responsive to the PA will be evaluated for scientific and technical merit by an appropriate peer review group or charter study section convened by NCHSTP in accordance with the review criteria listed above. As part of the initial merit review, all applications may:
• Undergo a process in which only those applications deemed to have the highest scientific merit, generally the top half of the applications under review, will be discussed and assigned a priority score.
• Receive a written critique.
• Receive a second level review by the CDC/NCHSTP/DTBE Senior Staff.
Award Criteria: Criteria that will be used to make award decisions include:
• Scientific merit (as determined by peer review)
• Availability of funds
• Programmatic priorities
Award Date: August 1, 2004.
Successful applicants will receive a Notice of Grant Award (NGA) from the CDC Procurement and Grants Office. The NGA shall be the only binding, authorizing document between the recipient and CDC. The NGA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
45 CFR Parts 74 and 92
For more information on the Code of Federal Regulations, see the National Archives and Records Administration at the following Internet address:
The following additional requirements apply to this project:
• AR-1 Human Subjects Requirements
• AR-2 Requirements for Inclusion of Women and Racial and Ethnic Minorities in Research
• AR-4 HIV/AIDS Confidentiality Provisions
• AR-5 HIV Program Review Panel Requirements
• AR-6 Patient Care
• AR-7 Executive Order 12372
• AR-8 Public Health System Reporting Requirements
• AR-10 Smoke-Free Workplace Requirements
• AR-11 Healthy People 2010
• AR-12 Lobbying Restrictions
• AR-14 Accounting System Requirements
• AR-16 Security Clearance Requirement
• AR-22 Research Integrity
• AR-25 Release and Sharing of Data
Additional information on these requirements can be found on the CDC
You must provide CDC with an original, plus two copies of the following reports:
1. Interim progress report, (PHS 2590, OMB Number 0925-0001, rev. 5/2001 as posted on the CDC Web site) no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Budget.
e. Additional Requested Information.
f. Measures of Effectiveness.
2. Financial status report and annual progress report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
These reports must be sent to the Grants Management Specialist listed in the “Agency Contacts” section of this announcement.
For general questions about this announcement, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: 770-488-2700.
For scientific/research issues, contact: Elsa Villarino, Extramural Project Officer, CDC, National Center for HIV, STD and TB Prevention, Division of Tuberculosis Elimination, 1600 Clifton Road, Mail stop E10, Telephone: 404-639-5340, E-mail:
For questions about peer review, contact: Andrew Vernon, Scientific Review Administrator, CDC, National Center for HIV, STD and TB Prevention, Office of the Director, Associate Director for Science Office, Telephone: 404-639-8000, E-mail:
For financial, grants management, or budget assistance, contact: Jesse Robertson, Grants Management Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: 770-488-2747, E-mail:
This program is authorized under section 301 (a) [42 U.S.C. 241(a)] of the Public Health Service Act and section 391 (a) [42 U.S.C. 280b (a)] of the Public Service Health Act, as amended.
Measurable outcomes of the program will be in alignment with the following performance goal for the National Center for Injury Prevention and Control (NCIPC):
1. Increase the capacity of injury prevention and control programs to address the prevention of injuries and violence.
Awardee activities for this program are as follows:
a. Provide expert advice in regard to working with state ME to access ME data.
b. Serve as a liaison with medical examiners in the National Violent Death Reporting System (NVDRS) funded states. This could include gaining feedback from ME/Coroners regarding the impact of NVDRS on operational activities and costs.
c. Develop a set of recommendations for gaining input from coroners regarding violent death reporting data. The recommendations would address a process for getting coroners more involved in the organization.
d. Send one medical examiner to the NVDRS implementation training to provide consultation on working with medical examiner offices.
e. Explore the possibility of an additional ME/Coroner set of variables that can be added to the electronic death certificate.
f. Provide at least one educational update per year regarding NVDRS in the potential grantees' organizational newsletter.
In a cooperative agreement, CDC staff is substantially involved in the program activities, above and beyond routine grant monitoring.
CDC Activities for this program are as follows:
a. Provide technical assistance for planning and conducting program activities.
b. Provide educational materials for use with the organization's membership as needed.
c. Provide technical assistance regarding the development of strategies to increase involvement of coroners and medical examiners.
d. Identify and facilitate training opportunities for ME representative for improvement of data collection accuracy.
e. Facilitate discussion with the National Center for Health Statistics (NCHS) for inclusion of additional ME variables into the electronic death certificate for enhanced data collection through NVDRS.
f. Attend relevant organizational functions to provide NVDRS updates.
CDC involvement in this program is listed in the Activities Section above.
Your application will not be eligible for review if you request a funding amount greater than the upper threshold. You will be notified that you did not meet the submission requirements.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as
Applications may be submitted by public and private nonprofit organizations such as:
• Public nonprofit organizations
• Private nonprofit organizations
Matching funds are not required for this program.
If your application is incomplete or non-responsive to the requirements listed below, it will not be entered into the review process. You will be notified that your application did not meet the submission requirements. Eligible applicants should be a national professional organization of physician medical examiners, medical death investigators and death investigation system administrators who perform the official duties of the medicolegal investigation of deaths of public interest in the United States. Applicant should provide a brief description of organizational membership.
Data from medical examiners/coroners is one of the major data sources that is vital for the development and implementation of the National Violent Death Reporting System (NVDRS).
Title 2 of the United States Code section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, or loan.
To apply for this funding opportunity use application form PHS 5161. Application forms and instructions are available on the CDC Web site, at the following Internet address:
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) staff at: 770-488-2700. Application forms can be mailed to you.
• Maximum number of pages: 20
If your narrative exceeds the page limit, only the first pages which are within the page limit will be reviewed.
• Font size: 12 point unreduced
• Double spaced
• Paper size: 8.5 by 11 inches
• Page margin size: One inch
• Printed only on one side of page
• Held together only by rubber bands or metal clips; not bound in any other way.
Your narrative should address activities to be conducted over the entire project period, and must include the following items in the order listed:
The narrative should consist of, at a minimum, Background, Goal and Objectives, Methods, Evaluation, Management and Collaboration.
Additional information may be included in the application appendices. The appendices will not be counted toward the narrative page limit. This additional information includes:
• Curriculum Vitaes, Resumes, Organizational Charts, Letters of Support, etc.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal government. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
For more information, see the CDC Web site at:
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirement.”
This program announcement is the definitive guide on submission and deadline. It supersedes information provided in the application instructions. If your application does not meet the deadline above, it will not be eligible for review, and will be discarded. You will be notified that you did not meet the submission requirements.
CDC will notify you upon receipt of your application. If you have a question about the receipt of your application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: 770-488-2700. Before calling, please wait two to three days after the application deadline. This will allow time for applications to be processed and logged.
Executive Order 12372 does not apply to this program.
Restrictions, which must be taken into account while writing your budget, are as follows:
• None
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement must be less than 12 months of age.
Guidance for completing your budget can be found on the CDC Web site, at the following Internet address:
Submit the original and two hard copies of your application by mail, or express delivery service to: Technical Information Management-PA# 04123, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341.
You are required to provide measures of effectiveness that will demonstrate
Your application will be evaluated against the following criteria:
1. Methods (30 points)
a. Is a plan for educating organizational members regarding the NVDRS included?
b. Does the applicant describe methods for developing standards for representing concepts and data elements among its members?
2. Goal(s) and Objectives (20 points)
Are objectives that are measurable, specific, time phased and achievable provided?
3. Background and Need (15 points)
Does the applicant describe its role regarding access to ME/coroners and the need for a NVDRS?
4. Collaboration (15 points)
a. Does the applicant document a process for developing a working relationship between medical examiners and coroners?
5. Management (10 points)
a. Does the applicant provide details regarding staff responsible for activities related to the objectives?
b. Does the applicant provide an organizational chart of the organization?
6. Evaluation (10 points)
Is a plan for evaluating and reporting results of proposed activities included?
7. Budget (not scored)
8. Performance Measures (not scored)
Are measures of effectiveness included and do they address those areas identified under the “Purpose” section above?
An objective review panel will evaluate your application according to the criteria listed above.
September 1, 2004.
Successful applications will receive a Notice of Grant Award (NGA) from the CDC Procurement and Grants Office. The NGA shall be the only binding, authorizing document between the recipient and CDC. The NGA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
45 CFR Part 74 or 92
For more information on the Code of Federal Regulations,
The following additional requirements apply to this project:
• AR-8 Public Health System Reporting Requirements
• AR-9 Paperwork Reduction Act Requirements
• AR-10 Smoke-Free Workplace Requirements
• AR-11 Healthy People 2010
• AR-12 Lobbying Restrictions
• AR-13 Prohibition on Use of CDC Funds for Certain Gun Control Activities
• AR-14 Accounting System Requirements
• AR-15 Proof of Non-Profit Status
• AR-20 Conference Support
• AR-21 Small, Minority, and Women-Owned Business
Additional information on these requirements can be found on the CDC Web site at the following Internet address:
You must provide CDC with an original, plus two hard copies of the following reports:
1. Interim progress report, no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Detailed Line-Item Budget and Justification.
e. Additional Requested Information.
f. Measures of Effectiveness.
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
This report must be mailed to the Grants Management or Contract Specialist listed in the “Agency Contacts” section of this announcement.
For general questions about this announcement, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: 770-488-2700.
For program technical assistance, contact: Leroy Frazier, Jr., Project Officer, Division of Violence Prevention, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 4770 Buford Hwy, NE., MS K60, Atlanta, GA 30341, Telephone: 770-488-1507, E-mail:
For budget assistance, contact: Nancy Pillar, Grants Management Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341,Telephone: 770-488-2721, E-mail:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Guidance for Industry; Reports on the Status of Postmarketing Studies—Implementation of Section 130 of the Food and Drug Administration Modernization Act of 1997” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting nominations for voting and nonvoting consumer representatives to serve on its advisory committees and panels in the Center for Biologics Evaluation and Research (CBER), Center for Drug Evaluation and Research (CDER), and Center for Devices and Radiological Health (CDRH). Nominations will be accepted for current vacancies and for those that will or may occur through December 31, 2004.
FDA has a special interest in ensuring that women, minority groups, and individuals with disabilities are adequately represented on advisory committees and, therefore, encourages nominations of qualified candidates from these groups.
Scheduled vacancies occur on various dates throughout the year. As a result, no cutoff date is established for the receipt of nominations.
All nominations should be sent to the contact person listed in the
Michael Ortwerth, Advisory Committee Oversight and Management Staff (HF-4), FDA Office of the Commissioner, 5600 Fishers Lane, Rockville, MD 20857, e-mail: Michael.Ortwerth@fda.gov.
FDA is requesting nominations for voting and nonvoting consumer representatives of the following advisory committees and panels for vacancies:
Persons nominated for membership on the committees as a consumer representative must meet the following criteria: (1) Demonstrate ties to consumer and community-based organizations, (2) be able to analyze technical data, (3) understand research design, (4) discuss benefits and risks, and (5) evaluate the safety and efficacy of products under review. The consumer representative must be able to represent the consumer perspective on issues and actions before the advisory committee; serve as a liaison between the committee and interested consumers, associations, coalitions, and consumer organizations; and facilitate dialogue with the advisory committees on scientific issues that affect consumers.
Selection of members representing consumer interests is conducted through procedures that include use of organizations representing the public interest and consumer advocacy groups. The organizations have the responsibility of recommending candidates of the agency's selection.
All nominations must include a cover letter, a curriculum vitae or resume (which should include nominee's office address, telephone number, and e-mail address), and a list of consumer or community-based organizations for which the candidate can demonstrate active participation.
Any interested person or organization may nominate one or more qualified persons for membership on one or more of the advisory committees to represent consumer interests. Self-nominations are also accepted. FDA will ask the potential candidates to provide detailed information concerning such matters as financial holdings, employment, and research grants and/or contracts to permit evaluation of possible sources of conflict of interest. The nomination should specify the committee(s) of interest. The term of office is up to 4 years, depending on the appointment date.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the renewal of certain FDA advisory committees by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the charters of the committees listed in the following table for an additional 2 years beyond charter expiration date. The new charters will be in effect until the dates of expiration listed in the following table. This notice is issued under the Federal Advisory Committee Act of October 6, 1972 (Public Law 92-463 (5 U.S.C. app. 2)).
Authority for these committees will expire on the dates indicated in the following table unless the Commissioner formally determines that renewal is in the public interest.
Linda A. Sherman, Advisory Committee Oversight and Management Staff (HF-4), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1220.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
The background material for this meeting will be posted on the Internet when available or 1 working day before the meeting at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Thomas Perez at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The Division of Transplantation (DoT), Special Programs Bureau (SPB), Health Resources and Services Administration (HRSA), is planning to conduct a telephone survey of public knowledge, perceptions, opinion, and behaviors related to organ donation. Two key missions of the DoT are (1) to provide oversight for the Organ Procurement and Transplantation Network and policy development related to organ donation and transplantation, and (2) to implement efforts to increase public knowledge, attitudes, and behaviors related to organ and tissue donation. Effective education campaigns need to be based on knowledge of the public's attitudes and perceptions about, and perceived impediments to, organ donation.
The purpose of this study is to obtain current information on attitudes and perceptions of organ donation and transplantation of the general public and various population subgroups. The survey will measure issues such as level of public knowledge about donation, public intent to donate, impediments to public intent to donate, living donation, presumed consent, and financial incentives for donation. In addition to being useful to the DoT, results of this survey also will be of considerable assistance to the transplant community and to the Secretary's Advisory Committee on Organ Transplantation (ACOT) as it fulfills its charge to advise the Secretary of Health and Human Services on the numerous and often controversial issues related to donation and transplantation. In its first meeting, the ACOT suggested such a survey to gather information to inform both public education efforts and policy decisions on the issue of organ donation.
The burden estimate of for this activity is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: Desk Officer, Health Resources and Services Administration, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Bureau of Customs and Border Protection, Department of Homeland Security.
General notice.
This document notifies the public of foreign entities which have been issued a penalty claim under section 592 of the Tariff Act of 1930, for certain violations of the customs laws. This list is authorized to be published by section 333 of the Uruguay Round Agreements Act.
This document notifies the public of the semiannual list for the 6-month period starting March 31, 2004, and ending September 30, 2004.
For information regarding any of the operational aspects, contact Gregory Olsavsky, Fines, Penalties and Forfeitures Branch, Office of Field Operations, (202) 927-3119. For information regarding any of the legal aspects, contact Willem A. Daman, Office of Chief Counsel, (202) 927-6900.
Section 333 of the Uruguay Round Agreements Act (URAA) (Pub. L. 103-465, 108 Stat. 4809) (signed December 8, 1994), entitled Textile Transshipments, amended part V of title IV of the Tariff Act of 1930 by creating a section 592A (19 U.S.C. 1592a), which authorizes the Secretary of the Treasury to publish in the
The violations of the customs laws referred to above are the following: (1) Using documentation, or providing documentation subsequently used by the importer of record, which indicates a false or fraudulent country of origin or source of textile or apparel products; (2) Using counterfeit visas, licenses, permits, bills of lading, or similar documentation, or providing counterfeit visas, licenses, permits, bills of lading, or similar documentation that are subsequently used by the importer of record, with respect to the entry into the Customs territory of the United States of textile or apparel products; (3) Manufacturing, producing, supplying, or selling textile or apparel products which are falsely or fraudulently labeled as to country of origin or source; and (4) Engaging in practices which aid or abet the transshipment, through a country other than the country of origin, of textile or apparel products in a manner which conceals the true origin of the textile or apparel products or permits the evasion of quotas on, or voluntary restraint agreements with respect to, imports of textile or apparel products.
If a penalty claim has been issued with respect to any of the above violations, and no petition in response to the claim has been filed, the name of the party to whom the penalty claim was issued will appear on the list. If a petition or supplemental petition for relief from the penalty claim is submitted under 19 U.S.C. 1618, in accord with the time periods established by §§ 171.2 and 171.61, Customs and Border Protection (CBP) Regulations (19 CFR 171.2, 171.61) and the petition is subsequently denied or the penalty is mitigated, and no further petition, if allowed, is received within 60 days of the denial or allowance of mitigation, then the administrative action shall be
Section 592A also requires any importer of record entering, introducing, or attempting to introduce into the commerce of the United States textile or apparel products that were either directly or indirectly produced, manufactured, supplied, sold, exported, or transported by such named person to show, to the satisfaction of the Secretary, that such importer has exercised reasonable care to ensure that the textile or apparel products are accompanied by documentation, packaging, and labeling that are accurate as to their origin. Reliance solely upon information regarding the imported product from a person named on the list is clearly not the exercise of reasonable care. Thus, the textile and apparel importers who have some commercial relationship with one or more of the listed parties must exercise a degree of reasonable care in ensuring that the documentation covering the imported merchandise, as well as its packaging and labeling, is accurate as to the country of origin of the merchandise. This degree of reasonable care must involve reliance on more than information supplied by the named party.
In meeting the reasonable care standard when importing textile or apparel products and when dealing with a party named on the list published pursuant to section 592A of the Tariff Act of 1930, an importer should consider the following questions in attempting to ensure that the documentation, packaging, and labeling are accurate as to the country of origin of the imported merchandise. The list of questions is not exhaustive but is illustrative.
(1) Has the importer had a prior relationship with the named party?
(2) Has the importer had any detentions and/or seizures of textile or apparel products that were directly or indirectly produced, supplied, or transported by the named party?
(3) Has the importer visited the company's premises and ascertained that the company has the capacity to produce the merchandise?
(4) Where a claim of an origin conferring process is made in accordance with 19 CFR 102.21, has the importer ascertained that the named party actually performed the required process?
(5) Is the named party operating from the same country as is represented by that party on the documentation, packaging or labeling?
(6) Have quotas for the imported merchandise closed or are they nearing closing from the main producer countries for this commodity?
(7) What is the history of this country regarding this commodity?
(8) Have you asked questions of your supplier regarding the origin of the product?
(9) Where the importation is accompanied by a visa, permit, or license, has the importer verified with the supplier or manufacturer that the visa, permit, and/or license is both valid and accurate as to its origin? Has the importer scrutinized the visa, permit or license as to any irregularities that would call its authenticity into question?
The law authorizes a semiannual publication of the names of the foreign entities and/or persons. On October 8, 2003, CBP published a notice in the
For the period ending March 30, 2004, CBP has identified no foreign entities that fall within the purview of section 592A of the Tariff Act of 1930. The two (2) entities named on the list published on October 8, 2003, have not committed any of the enumerated violations for a period of not less than three (3) years after the initial publication of their names. Accordingly, these two (2) entities are removed and, as no new entities are named, CBP is not listing any foreign entities on the 592A list for the period starting March 31, 2004, and ending September 30, 2004.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
HUD is requesting OMB approval to collect information from multifamily projects with HUD-insured and HUD-held mortgages. The Department must collect information on residual receipts accounts in order to ensure the appropriate management of funds.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-Pending) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This Notice informs the public that the U.S. Department of Housing and Urban Development (HUD) has submitted to OMB, for emergency processing, a survey instrument to obtain information from faith based and community organizations on their likelihood and success at applying for various funding programs. This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Land Management (BLM).
Notice of Availability (NOA) of Record of Decision (ROD).
In accordance with the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and BLM management policies, the BLM announces the availability of the ROD/RMP Amendment for Management of Port-Orford-Cedar in Southwest Oregon, affecting the Coos Bay, Medford, and Roseburg Districts. The Oregon State Director will sign the ROD/RMP Amendment, which becomes effective immediately.
Ken Denton, SEIS Team Leader, P.O. Box 2965, Portland, Oregon 97208, telephone (503) 326-2368, e-mail
Port-Orford-cedar is killed by an exotic root disease (
The Management of Port-Orford-Cedar in Southwest Oregon ROD/RMP Amendment was developed with public participation through a year-long planning process. This ROD/RMP Amendment, together with a similar one signed by the Forest Service in March, 2004, addresses management on approximately 270,000 acres of Port-Orford-cedar stands in the planning area. The ROD/RMP Amendment will help maintain Port-Orford-cedar as an ecologically and economically significant species on BLM lands. It includes a series of generally required actions, actions that can be applied to specific projects when there is a management risk to Port-Orford-cedar, and an emphasis on keeping the disease out of uninfested watersheds.
The Port-Orford-cedar RMP Amendment is essentially the same as Alternative 2 in the Proposed RMP Amendment/Final SEIS published on January 23, 2004 (see Notice of Availability,
Under a 28 CFR 50.7, notice is hereby given that on April 22, 2004, a proposed Consent Decree in
The consent decree resolves claims against one defendant, Keysor-Century Corporation (“Keysor”), brought by the United States on behalf of the Environmental Protection Agency (“EPA”), by the State of California on behalf of the Department of Toxic Substances Control and the California Regional Water Quality Control Board, Los Angeles Region, and by the South Coast Air Quality Management District under four statutes: Clean Air Act (“CAA”), 42 U.S.C. 7401-7671q; Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. 6901-6992k; Emergency Planning and Community
Under the proposed Consent Decree, all civil claims in the Complaint are resolved for the following payments to be made by Keysor in Keysor's Chapter 11 bankruptcy liquidation proceeding: a $307,000 administrative expense payment; the allowance of $735,420 classified as a subordinated allowed general unsecured claim; and the allowance of $168,855 classified as an allowed general unsecured claim. In addition, Keysor is subjected to injunctive relief, including: cessation of discharges of pollutants from the Facility; certification that the vinyl chloride plant was shut down and will not be re-opened; general certification that the defendant is currently in compliance with all provisions of CAA, RCRA, EPCRA, and CWA; and an agreement that emission reductions resulting from the shutdown of the Facility shall not be banked or otherwise used as emission reduction credits to offset new emissions from other facilities in the District.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, D.C. 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, 300 North Los Angeles Street, Los Angeles, California 90012, and the Region IX Office of the Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Under 28 CFR 50.7, notice is hereby given that on April 29, 2004, a proposed Consent Decree (“Consent Decree”) in the case of
The Consent Decree resolves the United States' claims against Koch Industries, Inc., Koch Pipeline Company, L.P., and Flint Hill Resources, L.P., under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) 42 U.S.C. 9607(a), for recovery of response costs incurred in connection with the 57th and North Broadway Superfund Site (“Site”), near Wichita, Kansas. The Consent Decree requires Koch Industries to pay $250,000 plus 5% of EPA's response costs that exceed $5,097,435. In exchange, the Consent Decree grants Koch Industries, Inc., Koch Pipeline Company, L.P., and Flint Hill Resources, L.P. contribution protection and covenants not to sue under CERCLA Sections 106 and 107, 42 U.S.C. 9606 & 9607.
The Department of Justice will receive comments relating to the Consent Decree for a period of thirty days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined during the public comment period on the following Department of Justice Web site:
Notice is hereby given that on April 16, 2004, an electronic version of a proposed consent decree was lodged in
In the civil action, the United States alleges claims on behalf of the Administrator of the Environmental Protection Agency (“EPA”) against Madison County, Florida (the “County”) and the City of Madison, Florida (the “City”) under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9607, for response costs in connection with the Madison County Sanitary Landfill Superfund Site, in Madison County, Florida (the “Site”).
The proposed consent decree requires the County and the City to reimburse all of EPA's outstanding past costs of $797.19 and to pay future oversight costs in connection with oversight of a remedial action being performed by the County and the City under a unilateral administrative order issued by EPA.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree.
The Consent Decree may be examined at the Office of the United States Attorney for the Northern District of Florida 111 N. Adams Street, 4th Floor, Tallahassee, FL 32301. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Under 28 CFR § 50.7, notice is hereby given that on April 27, 2004, a proposed Consent Decree in
In this action the United States, and its co-plaintiff the State of Louisiana, sought injunctive relief and a civil penalty to address sanitary sewer overflows and other violations of the Clean Water Act and the City of Monroe's National Pollutant Discharge Elimination System (“NPDES”) permit. Under the Consent Decree, the City will (i) carry out specific projects listed in the Consent Decree to upgrade the City's wastewater treatment plant and sewage collection system, (ii) identify and make other necessary upgrades to City's sewer collection system, (iii) prepare and implement a sewage collection system preventive maintenance plan, and (iv) prepare and implement a sewage treatment plant preventive maintenance plan. The City will also pay a civil penalty of $235,000 ($164,500 to the United States and $70,500 to the State) and, as a supplemental environmental project, spend at least $500,000 maintaining for five years a public waste disposal facility at a boat dock at Forsythe Point in Monroe, Louisiana.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be exmained during the public comment period on the following Department of Justice Web site:
Under 28 CFR 50.7, notice is hereby given that on April 28, 2004, a proposed consent decree in
In this action the United States sought cost recovery for costs incurred in connection with the Precision National Plating Services Superfund Site (the “Site”), located near Clarks Summit, Lackawanna County, Pennsylvania. Under the terms of the consent decree, the proposed settling defendant would pay $800,000 to EPA to cover past response costs.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The consent decree may be examined at the Office of the United States Attorney, Suite 311, 235 N. Washington Avenue, Scranton, Pennsylvania 18503, and at U.S. EPA Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. A copy of the consent decree may also be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given that on April 28, 2004, a proposed Consent Decree in
The complaint alleges that True violated the Clean Air Act in the (1) construction and operation of various modifications at its refrigeration manufacturing plant without obtaining a construction/operation permit as required by the federally approved Missouri New Source Review (“NSR”) Rules, codified at Rule 10 CSR 10-6.060
The Consent Decree settles these claims in exchange for payment of a civil penalty of $1,500,000 and True's performance of injunctive relief and three Supplemental Environmental Projects. True will remove the equipment for which it did not get the required permits and replace all of its solvent-based ink presses with presses that use ultraviolet light to cure ink, install three silk-screen cleaning machines that are enclosed systems with s solvent recovery system, and install a water filtration system.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Eastern District of Missouri, 111 10th Street, St. Louis, MO 63102 and at U.S. EPA Region VII, U.S. EPA, Region VII, 901 N. 5th Street, Kansas City, KS 66101, (913) 551-7471. During the public comment period, the Consent Decree may also be examined on the following Department of Justice website,
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on December 12, 2002, applicable to workers of Don Shapiro Industries, Inc., doing business as Action West, located in El Paso, Texas. The notice was published in the
At the request of petitioners, the Department reviewed the certification for workers of Action West in El Paso, Texas. New information obtained from the company, shows that on November 7, 2003, Baxter International Corporation acquired the employees and certain assets of the subject firm at the El Paso, Texas location. Some workers have been subsequently separated from employment with Baxter International Corporation.
It is the Department's intent to cover all workers of the firm impacted by increased imports. Accordingly, the Department is amending the certification to expand coverage to workers of the successor firm, Baxter International Corporation.
The amended notice applicable to TA-W-50,186 is hereby issued as follows:
All workers of Don Shapiro Industries, Inc., doing business as Action West, currently known as Baxter Industries Corporation, El Paso, Texas, who became totally or partially separated from employment on or after December 27, 2002, through December 12, 2004, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on March 15, 2004, in response to a petition filed on behalf of workers of Action West, Don Shapiro, Baxter Corporation, El Paso, Texas.
The investigation revealed that the workers are former employees of Don Shapiro Industries, doing business as Action West, El Paso, Texas. Since Baxter International is a successor firm, the existing certification, TA-W-50,186, is amended this date to include the workers of Baxter International Corporation. Consequently, this investigation is terminated.
By letter of November 24, 2003, a petitioner requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The denial notice was signed on October 24, 2003, and published in the
The Department reviewed the request for reconsideration and has determined that the Department will conduct further investigation to establish whether petitioning workers produced an article within the meaning of section 222 of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility To Apply for Worker Adjustment Assistance on March 2, 2004, applicable to workers of Elizabeth Weaving, Inc., Grover, North Carolina. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of upholstery fabric.
New information shows that workers separated from employment at the subject firm from June 30, 2003, until March 12, 2004, had their wages reported under a separate unemployment insurance (UI) tax account for Elite Textile Limited.
Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Elizabeth Weaving, Inc., Blacksburg, South Carolina, who were adversely affected by increased imports.
The amended notice applicable to TA-W-54,143 is hereby issued as follows:
By application of April 2, 2004, the United Steelworkers of America, Local 302L, requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The Department's determination was signed on March 4, 2004, and the Notice was published in the
The Department reviewed the request for reconsideration and has determined that further investigation is appropriate given that the customer survey may be erroneous.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
By application of March 5, 2004, International Association of Machinists, District Lodge 34 requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Snap-On Tools Manufacturing Company, Kenosha, Wisconsin engaged in the production of hand tools, was denied because criteria I.C and II.B and the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974, as amended, were not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The survey revealed an insignificant level of imports during the relevant period. The subject firm imported a negligible amount of hand tools during the relevant period.
The petitioner alleges that the company is currently in the process of purchasing a facility in China for the purpose of shifting some of the production from the subject facility.
A company official was contacted in regard to these allegations. The official stated that there never was a shift of hand tools production from Snap-On Tools Manufacturing Company, Kenosha, Wisconsin abroad and no plans exist to move any production from the subject facility to China.
The petitioner further alleges that Snap-on, Inc. is considering to
The official stated that E-Line Pliers were never manufactured at the subject facility and that this line existed at another Snap-on Tools, Inc. facility in Mt. Carmel, Illinois. The official further stated that the company does import power tools which are branded as Blue Point, however, they are not like or directly competitive with products manufactured at Snap-On Tools Manufacturing Company, Kenosha, Wisconsin. The company has been outsourcing manufacturing of the adjustable wrenches and pliers from overseas vendors for many years, however, this sourcing, including Blue Point tools represents less than 2 percent of the overall production of Snap-on, Inc. and did not increase during the relevant time period.
Finally, the petitioner alleges that the subject firm lost a considerable amount of business to its competitor, a company which is “more price-competitive due to the use of overseas trade.”
A review of competitors is not relevant to an investigation concerning import impact on workers applying for trade adjustment assistance. As noted above, “contributed importantly” test is generally demonstrated through a survey of customers of the workers' firm to examine the direct import impact on a specific firm. No imports or very insignificant amount of imports of hand tools were evidenced during the survey of subject firm's customers during the original investigation.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decisions. Accordingly, the application is denied.
By application of March 5, 2004, International Association of Machinists, District Lodge 111 requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Snap-on Tools, Inc., Mt. Carmel Plant, Mt. Carmel, Illinois engaged in the production of hand tools, was denied because criteria I.C and II.B and the “contributed importantly” group eligibility requirement of section 222 of the Trade Act of 1974, as amended, were not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The survey revealed an insignificant level of imports. The subject firm imported a negligible amount of hand tools during the relevant period.
The petitioner alleges that the company is currently in the process of purchasing a facility in China for the purpose of shifting some of the production from the subject facility.
A company official was contacted in regard to these allegations. The official stated that there never was a shift of hand tool production from the Mt. Carmel, Illinois, facility abroad and no plans exist to move any production from the subject facility to China.
The petitioner further alleges that Snap-on Tools, Inc. is considering to discontinue the E-Line Plier line and replacing it with foreign made products, manufactured in Sweden or Germany and mentions Blue Point product, which was affected by the foreign trade.
The official confirmed that there are plans to produce E-line pliers at a subsidiary located in Sweden. However, no shift of production to Sweden has occurred yet. The official further stated that the company does import power tools which are branded as Blue Point, however, they are not like or directly competitive with products manufactured at Mt. Carmel Plant. The company has been outsourcing manufacturing of the adjustable wrenches and pliers from overseas vendors for many years, however, this sourcing, including Blue Point tools represents less than 2 percent of the overall volume of the Mt. Carmel Plant and did not increase during the relevant time period.
Finally, the petitioner alleges that the subject firm lost a considerable amount of business to its competitor, a company which is “more price-competitive due to the use of overseas trade.”
A review of competitors is not relevant to an investigation concerning import impact on workers applying for trade adjustment assistance. As noted above, “contributed importantly” test is generally demonstrated through a survey of customers of the workers' firm to examine the direct impact on a specific firm. Only an insignificant amount of imports of hand tools were evidenced during the survey of subject firm's customers during the original investigation.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decisions. Accordingly, the application is denied.
In the matter of
Workers of The Wackenhut Corporation, San Manuel, Arizona, were working on-site at a copper cathode production facility operated by BHP Copper, Inc. in San Manuel, Arizona. The Wackenhut Corporation workers were denied eligibility to apply for TAA because they provided security services for an unaffiliated firm. All workers of BHP Copper, Inc., San Manuel, Arizona, were certified eligible to apply for TAA.
The Department determined that The Wackenhut Corporation was contracted by BHP Copper, Inc. to provide security services at BHP in San Manuel, Arizona and other BHP locations. During the contract period the leased or contract workers providing a service (Wackenhut) remained under the control by the firm producing the article (BHP Copper, Inc.). In accordance with a reinterpretation of the Trade Act term workers of a firm and the joint employer relationship that existed between Wackenhut and BHP Copper, Inc., the Department has determined that because all workers of BHP Copper, Inc. in San Manuel, Arizona were certified eligible to apply for TAA, the leased or contract employees of The Wackenhut Corporation working at that location are also adversely affected by increased imports of copper cathodes and the closure of the BHP facility.
After careful review on reconsideration, I determine that increases of imports of articles like or directly competitive with copper cathodes produced by BHP Copper Inc., San Manuel, Arizona, contributed importantly to the total or partial separation of workers and to the decline in sales or production at that firm or subdivision.
In accordance with the provisions of the Act, I make the following certification:
Workers employed by The Wackenhut Corporation, working at BHP Copper Inc., San Manuel, Arizona, who became totally or partially separated from employment on or after September 4, 2001, through two years from the date of this determination, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974.”
Employment and Training Administration, Labor.
Notice.
The United States Citizenship and Immigration Services (CIS) has received a sufficient number of H-2B petitions to reach the FY 2004 cap of 66,000. The Employment and Training Administration (ETA) is publishing this notice so the public will understand application procedures for the processing of H-2B applications for FY 2005 (date of need October 1, 2004 or later). These procedures are intended to minimize confusion and burden to employers who use the H-2B program. Any employer who desires to employ an H-2B worker with a start date of need on or after October 1, 2004, must file a new ETA 750, Part A,
This notice is effective May 13, 2004.
William Carlson, Chief, Division of Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free number).
The procedures described in this notice relate only to H-2B applications filed with DOL on or after June 1, 2004, for nonimmigrant workers subject to the numerical limitation (cap) for FY 2005 and who will be engaged in temporary work to commence on or after October 1, 2004.
In accordance with ETA's policy, employers may file an H-2B application at least 60 days, but not more than 120 days before the worker is needed. Therefore, employers may begin filing no earlier than June 1, 2004, for a date of need beginning October 1, 2004.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to request extension of a currently approved information collection used in issuing a building pass to National Archives and Records Administration (NARA) volunteers and employees of NARA contractors so that they can enter NARA facilities to perform their duties. NARA uses the information to ensure that only authorized persons have access. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before July 12, 2004 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (NHP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd, College Park, MD 20740-6001; or faxed to (301) 837-3213; or electronically mailed to
Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number (301) 837-1694, or fax number (301) 837-3213.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (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 the use of information technology. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
Nuclear Management Company, LLC (NMC) has submitted an application for renewal of Facility Operating Licenses DPR-24 and DPR-27 for an additional 20 years of operation at the Point Beach Nuclear Plant, Units 1 and 2 (PBNP). PBNP is located on the western shore of Lake Michigan in Two Rivers, Wisconsin, approximately 30 miles southeast of Green Bay, Wisconsin. The operating licenses for PBNP, Units 1 and 2, expire on October 5, 2010, and March 8, 2013, respectively. The application for renewal was received on February 26, 2004, pursuant to title 10 of the Code of Federal Regulations part 54 (10 CFR part 54). A notice of receipt and availability of the application, which included the environmental report (ER), was published in the
In accordance with title 10 of the Code of the Federal Regulations, section 51.53(c) (10 CFR 51.53(c)) and title 10 of the Code of the Federal Regulations, section 54.23 (10 CFR 54.23), NMC submitted the ER as part of the application. The ER was prepared pursuant to title 10 of the Code of the Federal Regulations, part 51 (10 CFR part 51) and is available for public inspection at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, or from the Publicly Available Records component of NRC's Agencywide Documents Access and Management System (ADAMS). ADAMS is accessible at
This notice advises the public that the NRC intends to gather the information necessary to prepare a plant-specific supplement to the Commission's “Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants,” (NUREG-1437) in support of the review of the application for renewal of the PBNP operating licenses for an additional 20 years. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources. The NRC is required by title 10 of the Code of the Federal Regulations, section 51.95 (10 CFR 51.95) to prepare a supplement to the GEIS in connection with the renewal of an operating license. This notice is being published in accordance with the National Environmental Policy Act of 1969 (NEPA) and the NRC's regulations found
The NRC will first conduct a scoping process for the supplement to the GEIS and, as soon as practicable thereafter, will prepare a draft supplement to the GEIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. The scoping process for the supplement to the GEIS will be used to accomplish the following:
a. Define the proposed action which is to be the subject of the supplement to the GEIS.
b. Determine the scope of the supplement to the GEIS and identify the significant issues to be analyzed in depth.
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant.
d. Identify any environmental assessments and other ElSs that are being or will be prepared that are related to, but are not part of the scope of the supplement to the GEIS being considered.
e. Identify other environmental review and consultation requirements related to the proposed action.
f. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule.
g. Identify any cooperating agencies and, as appropriate, allocate assignments for preparation and schedules for completing the supplement to the GEIS to the NRC and any cooperating agencies.
h. Describe how the supplement to the GEIS will be prepared, and include any contractor assistance to be used.
The NRC invites the following entities to participate in scoping:
a. The applicant, Nuclear Management Company, LLC.
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved, or that is authorized to develop and enforce relevant environmental standards.
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards.
d. Any affected Indian tribe.
e. Any person who requests or has requested an opportunity to participate in the scoping process.
f. Any person who has petitioned or intends to petition for leave to intervene.
In accordance with title 10 of the Code of the Federal Regulations section 51.26 (10 CFR 51.26), the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC has decided to hold public meetings for the PBNP license renewal supplement to the GEIS. The scoping meetings will be held at Fox Hills, 250 West Church Street in Mishicot, Wisconsin, on Tuesday, June 15, 2004. There will be two sessions to accommodate interested parties. The first session will convene at 1:30 p.m. and will continue until 4:30 p.m., as necessary. The second session will convene at 7 p.m. with a repeat of the overview portions of the meeting and will continue until 10 p.m., as necessary. Both meetings will be transcribed and will include: (1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the supplement to the GEIS, and the proposed review schedule; and (2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the supplement to the GEIS. Additionally, the NRC staff will host informal discussions one hour before the start of each session at Fox Hills. No formal comments on the proposed scope of the supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meetings or in writing, as discussed below. Persons may register to attend or present oral comments at the meetings on the scope of the NEPA review by contacting Mr. William Dam by telephone at 1-800-368-5642, extension 4014, or by e-mail to the NRC at
Members of the public may send written comments on the environmental scope of the PBNP license renewal review to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Participation in the scoping process for the supplement to the GEIS does not entitle participants to become parties to the proceeding to which the supplement to the GEIS relates. Notice of opportunity for a hearing regarding the renewal application was the subject of the aforementioned
At the conclusion of the scoping process, the NRC will prepare a concise summary of the determination and conclusions reached, including the significant issues identified, and will send a copy of the summary to each participant in the scoping process. The summary will also be available for inspection in ADAMS at
Information about the proposed action, the supplement to the GEIS, and the scoping process may be obtained from Mr. Dam at the aforementioned telephone number or e-mail address.
For the Nuclear Regulatory Commission.
Office of Personnel Management.
Notice.
The President adjusted the rates of basic pay and locality payments for certain categories of Federal employees effective in January 2004. This notice documents those pay adjustments for the public record.
Carey Johnson, Center for Pay and Performance Policy, Division for Strategic Human Resources Policy, Office of Personnel Management; (202) 606-2858; FAX (202) 606-0824; or e-mail to
On December 30, 2003, the President signed Executive Order 13322 (69 FR 231, January 2, 2004), which implemented a 2.0 percent overall average increase above the 2003 rates. Executive Order 13322 provided an across-the-board increase of 1.5 percent in the rates of basic pay for the statutory pay systems and an overall average increase in the General Schedule (GS) locality rates equal to approximately 0.5 percent of the GS payroll. On March 3, 2004, the President signed Executive Order 13332 (69 FR 10889, March 8, 2004), which amended Executive order 13322 to provide a retroactive pay increase averaging 4.1 percent above the 2003 rates (in lieu of the 2.0 percent overall average increase originally implemented). The President made these adjustments consistent with the Consolidated Appropriations Act, 2004 (Public Law 108-199, January 23, 2004).
Schedule 1 of Executive Order 13332 provides the rates for the 2004 General Schedule and reflects a 2.7 percent across-the-board increase. Executive Order 13332 also includes the percentage amounts of the 2004 locality payments. (See Section 5 and Schedule 9 of Executive Order 13332.)
The publication of this notice satisfies the requirement in section 5(b) of Executive order 13332 that the Office of Personnel Management (OPM) publish appropriate notice of the 2004 locality payments in the
GS employees receive locality payments under 5 U.S.C. 5304. Locality payments apply in the 48 contiguous States and the District of Columbia. In 2004, locality payments ranging from 10.90 percent to 24.21 percent apply to GS employees in 32 locality pay areas. These 2004 locality pay percentages, which replaced the locality pay percentages that were applicable in 2003, became effective on the first day of the first applicable pay period beginning on or after January 1, 2004. An employee's locality-adjusted annual rate of pay is computed by increasing his or her scheduled annual rate of basic pay (as defined in 5 U.S.C. 5302(8) and 5 CFR 531.602) by the applicable locality pay percentage. (See 5 CFR 531.604 and 531.605.)
Executive Order 13332 establishes the new Executive Schedule, which incorporates the 2.2 percent increase (rounded to the nearest $100) required under 5 U.S.C. 5318. By law, Executive Schedule officials are not authorized to receive locality pay.
Section 1125 of the National Defense Authorization Act for Fiscal year 2004 (Public Law 108-136, November 24, 2003) established a new performance-based pay system for the Senior Executive Service (SES). The new law replaces the former six-level SES pay system with a single open-range pay system with only the minimum and maximum rates of pay set by law. The minimum rate of basic pay may not be less than the minimum rate payable under 5 U.S.C. 5376 for senior-level positions ($104,927 in 2004), and the maximum rate of basic pay may not exceed the rate for level III of the Executive Schedule ($145,600 in 2004). The maximum rate of the SES rate range will increase to level II of the Executive Schedule ($158,100 in 2004) in those agencies that are certified under 5 U.S.C. 5307(d) as having executive performance appraisal systems that make meaningful distinctions based on relative performance. Additional information on the SES pay system is available on the Internet at
The Executive order adjusted the rates of basic pay for administrative law judges (ALJs) by 2.2 percent (rounded to the nearest $100). The maximum rate of basic pay for ALJs is set by law at the rate for level IV of the Executive Schedule, which is now $136,900. (See 5 U.S.C. 5372.)
The rates of basic pay for Board of Contract Appeals (BCA) members are calculated as a percentage of the rate for level IV of the Executive Schedule. (See 5 U.S.C. 5372a.) Therefore, BCA rates of basic pay were increased by approximately 2.2 percent. Also, the maximum rate of basic pay for senior-level (SL) and scientific or professional (ST) positions was increased by approximately 2.2 percent (to $136,900) because it is tied to the rate for level IV of the Executive Schedule. The minimum rate of basic pay for SL/ST positions is equal to 120 percent of the minimum rate of basic pay for GS-15 and thus was increased by 2.7 percent (to $104,927). (See 5 U.S.C. 5376.)
On December 17, 2003, the President's Pay Agent extended the 2004 locality-based comparability payments to certain categories of non-GS employees. The Governmentwide categories include employees in SL/ST positions, ALJs, and BCA members. The maximum locality rate of pay for these employees is the rate for level III of the Executive Schedule ($145,600 in 2004).
OPM published “Salary Tables for 2004,” (OPM Doc. 124-48-6) in May 2004. This publication provides complete salary tables incorporating the 2004 pay adjustments, information on general pay administration matters, locality pay area definitions, Internal Revenue Service withholding tables, and other related information. The rates of pay shown in this publication are the official rates of pay for affected employees and are hereby incorporated as part of this notice. You may purchase copies of “Salary Tables for 2004” from the Government Printing Office (GPO) by calling (202) 512-1800 (outside the DC area: 1-866-512-1800) or FAX (202) 512-2250. You may order copies directly from GPO on the Internet at
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 604 of Regulation E [17 CFR 230.604] under the Securities Act of 1933 [15 U.S.C. 77a
Rule 605 of Regulation E [17 CFR 230.605] under the Securities Act requires an SBIC or BDC claiming an exemption from registering its securities under the Securities Act to file an offering circular with the Commission that must also be provided to persons to whom an offer is made.
Form 1-E is the form that an SBIC or BDC uses to notify the Commission that it is claiming an exemption under Regulation E from registering its securities under the Securities Act. Form 1-E requires an issuer to provide the names and addresses of the issuer, its affiliates, directors, officers, and counsel; a description of events which would make the exemption unavailable; the jurisdiction in which the issuer intends to offer its securities; information about unregistered securities issued or sold by the issuer within one year before filing the notification on Form 1-E; information as to whether the issuer is presently offering or contemplating offering any other securities; and exhibits, including copies of the offering circular and any underwriting contracts.
The Commission uses the information provided in the notification on Form 1-E and the offering circular to determine whether an offering qualifies for the exemption under Regulation E. It is estimated that approximately ten issuers file a total of approximately fifteen notifications on Form 1-E with the Commission annually, together with offering circulars. The Commission estimates that the total burden hours for preparing these notifications would be 1,500 hours in the aggregate. Estimates of the burden hours are made solely for the purposes of the PRA, and are not derived from a comprehensive or even a representative survey or study of the costs of SEC rules and forms.
SBICs or BDCs wishing to claim an exemption under Regulation E from registering securities under the Securities Act are required to file a notification on Form 1-E and offering circular. The information provided on Form 1-E and in the offering circular will not be kept confidential. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Please direct general comments regarding the above information to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503, or email to:
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to amend CBOE Rule 6.13 relating to access to the automatic execution feature of its Hybrid System. The text of the proposed rule change appears below. Proposed new language is in
(a) No change.
(b) Automatic Execution.
(i) Eligibility: Orders eligible for automatic execution through the CBOE Hybrid System may be automatically executed in accordance with the provisions of this Rule. This section governs automatic executions and split-price automatic executions. The automatic execution and allocation of orders or quotes submitted by market participants shall be governed by Rules 6.45A(c) and (d).
(A)-(B) No change.
(C) Access:
(i) Non-broker-dealer public customers and broker-dealers that are not market makers or Specialists on an
(ii)
(ii)-(iv) No change.
(c)-(e) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
In May 2003, the Commission approved the CBOE's Hybrid System (“Hybrid”).
Under the proposal, the appropriate FPC will have the ability to allow options exchange market makers to have auto-ex access while stock exchange specialists do not have auto-ex access. Alternatively, the appropriate FPC may determine to set the auto-ex eligible order size level higher for options market makers than the corresponding order size level for stock exchange specialists. The proposal only applies to stock exchange specialists with respect to their options transactions in classes overlying stocks in which they are specialists. Further, the Exchange states that proposed CBOE Rule 6.13(b)(i)(C)(ii)(A) and (B) will enable the appropriate FPC to make the access determinations on a class-by-class basis. As such, proposed subparagraph (A) of CBOE Rule 6.13(b)(i)(C)(ii) clarifies that the appropriate FPC may determine, on a class-by-class basis, to allow options market makers to receive automatic execution. Further, proposed subparagraph (B) of CBOE Rule 6.13(b)(i)(C)(ii) allows the FPC to determine access treatment, on a class-by-class basis, with respect to stock exchange specialists' orders in their specialty stocks.
With respect to the access treatment of specialists' orders in their non-specialty stocks, the Exchange clarifies, in proposed CBOE Rule 6.13 (b)(i)(C)(ii)(B), that these orders will be treated in the same manner as orders of broker-dealers that are not market makers or specialists on an options exchange and thus will be eligible for automatic execution in accordance with CBOE Rule 6.13(b)(i)(C)(i).
The proposed amendment does not affect a responsible broker-dealer's firm quote obligations to broker-dealer orders (which includes options market makers and stock specialists), which will remain at one contract. Similarly, the proposal does not affect the auto-ex access currently available to public customer and non-market-maker/specialist broker-dealer orders, which is governed by CBOE Rule 6.13(b)(i)(C)(i).
The Exchange believes it is reasonable and consistent with Section 6(b)(5) of the Act
For these reasons, the Exchange believes the proposed rule change, as amended, is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the
CBOE does not believe that the proposed rule change, as amended, will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.
The Exchange neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, as amended, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment for (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-CBOE-2004-15. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its membership dues and fees schedule (the “Fee Schedule”) to charge member firms the costs associated with each firm's use of the Exchange's enhanced e-mail and instant messaging retention system. The text of the proposed rule change is available at the Commission and the CHX.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange is implementing an enhanced e-mail and instant messaging retention system that will be used to retain messages of its on-floor members who use e-mail and instant messaging functionalities provided or supported by the Exchange. This retention system is designed to help the Exchange's members better meet their record retention obligations and can be used by the Exchange to conduct reviews of member e-mail and instant messaging correspondence.
The proposed rule change would charge member firms the costs associated with each firm's use of the retention system.
These fee changes take effect immediately and will be billed to firms when the enhanced e-mail retention system is activated for their on-floor members.
The Exchange believes the proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were either solicited or received with respect to the proposed rule change.
The proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-CHX-2004-13. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985; 22 U.S.C. 2459], Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 [112 Stat. 2681,
For further information or a list of exhibit objects, contact Paul W. Manning,
The Teacher Exchange Branch in the Office of Global Educational Programs of the Bureau of Educational and Cultural Affairs (ECA), announces an open competition for the development of a training program for Iraqi teachers and administrators. Public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3) may submit proposals to support the development of a two-part training project to enhance the skills of Iraqi secondary school teachers of English and of secondary school administrators. Bureau funding up to $400,000 is currently available to support one grant for this two-part training project.
The recipient organization will be responsible for planning, implementing, and evaluating programs for two different groups: (1) A three-week program for secondary school administrators from Iraq (such as, principals and/or vice principals) followed by (2) a six-week English language training program, for secondary school teachers of English from Iraq. Grantee should plan and allocate funding for follow-on activities, such as linkages between U.S. secondary schools and Iraqi schools, the provision of instructional materials,
Although the Bureau expects the secondary school teachers of English on this project to have sufficient English language skills to participate in the program without language interpretation, it is likely that the secondary school administrators will require it. Therefore, the grantee organization should plan and budget for Arabic language interpreters during the program for administrators.
The Public Affairs Section of the U.S. Embassy in Iraq will recruit and select teachers and administrators for the project. The recipient organization should expect to work closely with ECA and the Embassy as the programs are planned and implemented in order to adapt them to changing conditions as necessary.
The proposal should include four emphases: first, to conduct a program focusing on secondary school administration; second, to produce a highly focused training program that introduces teachers to best practices in EFL at the secondary level; third, to provide both groups of participants with “train-the-trainer” skills that will enable them to conduct workshops on program topics in Iraq in the future; and fourth, to provide both groups of participants with opportunities to interact with Americans, thereby allowing them to gain an awareness and understanding of U.S. culture and society.
The Bureau seeks detailed proposals from U.S. colleges, universities and non-profit organizations that have expertise in the field of secondary school curriculum development and management, as well as teaching English as a Foreign Language (EFL). Proposals should demonstrate sensitivity to the local educational situation in Iraq as well as the issues confronting English language education there. The grantee will design and implement two U.S. based training programs. In the first program, secondary school administrators will discuss with U.S. counterparts and project administrators the training needs of Iraqi teachers for the development of the second program. The Iraqi administrators will observe and shadow administrators in U.S. secondary schools as well as observe EFL and other classrooms. The administrators will also consult with the U.S. project administrators responsible for planning and implementing the teacher-training program, to discuss how to design a program that will target the needs of Iraqi secondary school EFL teachers. The teachers program will follow the administrator program and will include specialized training in U.S. methodologies for teaching EFL. Applicants are strongly encouraged to include university-based training in the teacher program. Please read the Project Objectives, Goals, and Implementation (POGI) for additional details of both programs.
Proposals should demonstrate experience training teachers and administrators and conducting other programs in Iraq or the Middle East/North Africa region. Proposals should outline and budget for practical and feasible follow-on activities that build on the achievements of the training programs while promoting the continued exchange of ideas between the participants and counterparts at the U.S. grantee organization and in U.S. secondary schools.
The planning of the administrator program and the teacher program should begin as soon as the grant is awarded. The grantee should consult closely with ECA to assess local conditions in Iraq and to determine a feasible implementation strategy. Secondary school administrators and teachers will probably not be given leave during the academic school year. Since the administrator program is shorter in length, it might be scheduled for a school break for the 2004-05 academic year. The teacher program may be more feasible if it is scheduled during the summer of 2005 when school will not be in session.
In coordination with the Iraqi Ministry of Education, participants will be recruited and selected in Iraq by the Public Affairs Section (PAS) of the U.S. Embassy. Following the U.S. training activities, embassy officials will work with Iraqi educational officials as appropriate to facilitate follow-on training activities. Grantee should outline a plan for follow-on activities and a budget of at least $20,000 to cover these costs.
After the participants have been selected, they will travel from Iraq to Amman, Jordan for U.S. visa issuance and to receive a pre-departure orientation workshop by the PAS of the U.S. Embassy in Amman. Both orientations will be organized in Amman, Jordan, unless conditions allow for such activities to be organized in Iraq, in which case the pre-departure orientations will be held by the PAS of the U.S. Embassy in Iraq. The grantee will work closely with the PAS in
At the orientations, the PAS will provide information about the respective programs and goals, as well as the expectations and responsibilities of participants. In addition, relevant issues regarding the U.S. education system, culture and society will be addressed. The grantee will develop orientation packets for each participant that cover these subjects. These packets will be sent to the PAS in advance of the scheduled pre-departure orientations.
Overland travel from Iraq to Amman, Jordan might be the only means of transportation available to the participants. At least 4-5 days should be allotted for participants to travel to Amman from Iraq and await U.S. visa issuance before flying from Amman to the U.S.
Programs must comply with J-1 visa regulations. Please refer to the Solicitation Package for further information.
Participants are unlikely to have visited the United States previously. Therefore, the programs should provide orientations for both administrators and teachers to the host institution and its community and an introduction to U.S. society and our system of education shortly after arrival to the U.S. campus. The orientations will also offer a framework for integrating the training and its objectives into participants' previous training, and to promote strategies for them to share their knowledge with professional counterparts. Both programs should also include cultural activities that facilitate interaction among the participants, American students, faculty, and administrators and the local community to promote mutual understanding between the people of the United States and the people of Iraq.
Participants will spend approximately three weeks in the U.S. in the program organized by the U.S. grantee. The program should meet the needs of the Iraqi participants through activities designed by U.S. education specialists with relevant expertise in secondary school administration, curriculum development and training. The program should have two components: (1) An approximately two-and-a-half-week program focusing on secondary school administration and (2) an approximately three-day visit to Washington, DC. The first component should include an overview of U.S. education, shadowing administrators in U.S. schools, classroom observation, including innovative EFL instruction, introduction to information technology as used in classrooms and administrative offices, and home stays with American families. Administrators should receive a broad view of U.S. teaching methodologies, including student-centered learning, in a broad range of subjects. Topics addressed during the program should include, but not be limited to: school strategic planning, teacher performance evaluations, conflict resolution, EFL instruction and computer literacy skills.
In the second component, the grantee will organize and accompany participants on a three-day visit to Washington, DC. The Washington visit should complement and reinforce the two-and-a-half-week administrators' program, and include a meeting at the Bureau of Educational and Cultural Affairs and other meetings as recommended by the Teacher Exchange Branch.
Administration and management of the academic program and the visit to Washington, DC, will be the responsibility of the U.S. grantee organization. The U.S. grantee is responsible for arrangements for domestic and international travel, lodging, food, and allowances for participants throughout the training portion of the project and in Washington.
Participants will spend six weeks in the U.S. at the EFL training program organized by the U.S. grantee. The project should meet the needs of the Iraqi participants through activities designed by U.S. education specialists with appropriate expertise in EFL instruction, curriculum development and management and “train-the-trainer” skills.
The program should have two components: (1) An approximately five-week intensive academic program and (2) an approximately three-to-five day cultural and educational program in Washington, DC. The first component should introduce innovative EFL teaching methodologies and approaches and encourage participants to consider their implementation in Iraq, as well as classroom observation of other instruction in other core subject areas. Significant time should also be allotted for the inclusion of related professional activities outside the classroom which will introduce participants to U.S. education, such as visits to schools, consultations with U.S. teachers, in-school mentoring, and attendance at professional meetings. At a minimum, a one-week experiential component should be included in the five-week academic program in which participants observe best practices in EFL instruction and training in a U.S. school. Among the topics to be addressed during the program are: computer literacy skills for EFL instruction, critical thinking, communication, conflict resolution, analytical and evaluation skills, and student development and motivation.
The final component of the project is the three-to-five day site visit to Washington, DC. The site visit should complement and reinforce the five-week academic program. Visits will include a meeting at the Bureau of Educational and Cultural Affairs and other meetings as advised by the Teacher Exchange Branch. Administration and management of the academic program and the week in Washington, DC, will be the responsibility of the U.S. grantee organization. The U.S. grantee is responsible for arrangements for domestic and international travel, lodging, food, and allowances for participants throughout the training portion of the project and in Washington.
Applicants must submit a comprehensive budget for the entire project. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may submit separate sub-budgets for each program component, phase, location, or activity to provide clarification. The Bureau anticipates awarding one grant not to exceed $400,000 to support program and administrative costs required to implement all portions of both programs. Bureau guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost-sharing and funding in support of its programs.
Allowable costs for the program include the following:
(1) Instructional costs, including salaries and benefits of grantee organization, honoraria for outside speakers, educational materials;
(2) Travel, lodging, meals, and incidentals for participants;
(3) Expenses associated with cultural activities planned for the two groups of participants (for example, tickets, transportation);
(4) Administrative costs;
(5) Interpreter fees for administrator program;
(6) Follow-on activities to take place in Iraq.
Proposals should maximize cost sharing through private sector support as well as institutional direct funding contributions. Please refer to the POGI for complete budget guidelines and formatting instructions.
The Teacher Exchange Branch, Office of Global Educational Programs, ECA/A/S/X, Room 349, U.S. Department of State, 301 4th Street, SW., Washington, DC 20547, Telephone: (202) 619-6589, fax: (202) 401-1433 or e-mail:
Please read the complete
The entire Solicitation Package may be downloaded from the Bureau's Web site at
An OMB policy directive published in the
The deadline for this competition is June 24, 2004. In light of recent events and heightened security measures, proposal submissions must be sent via a nationally recognized overnight delivery service (
Applicants must follow all instructions in the Solicitation Package. The original and (8) copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/X-04-05, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Applicants must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. If feasible, the Bureau will provide these files electronically to the Public Affairs offices in the region for review.
Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the “Support for Diversity” section for specific suggestions on incorporating diversity into the total proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
The Bureau of Educational and Cultural Affairs is placing renewed emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantees and sponsors to all regulations governing the J visa. Therefore, proposals should demonstrate the applicant's capacity to meet all requirements governing the administration of Exchange Visitor Programs as set forth in 22 CFR part 62, including the oversight of Responsible Officers and Alternate Responsible Officers, screening and selection of program participants, provision of pre-arrival information and orientation to participants, monitoring of participants, proper maintenance and security of forms, record-keeping, reporting and other requirements. The Grantee will be responsible for issuing DS-2019 forms to participants in this program.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
The Bureau will acknowledge receipt of all proposals and will review them for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
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Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided through legislation.
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements.
Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures.
The Teacher Exchange Branch, Office of Global Educational Programs of the Bureau of Educational and Cultural Affairs (ECA) announces an open competition for the South Asian Teacher Training Project. Public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3) may submit proposals to develop a two-phased training program to enhance the skills of Indian and Pakistani secondary school administrators and secondary school teachers of English as a Foreign Language (EFL). Bureau funding of $500,000 is currently available to support one grant.
The proposal should reflect four overall elements: First, to produce a highly focused training program of about six weeks in duration that updates teachers in best practices in EFL at the secondary level; second, to provide the participants with “train-the-trainer” skills that will enable them to conduct workshops on program topics in their home countries in the future; third, to develop team building skills, mutual understanding, tolerance and trust between the participants; and fourth, to provide participants with opportunities to interact with Americans, thereby allowing them to gain awareness and understanding of U.S. culture and society.
The teacher-training program should be planned for breaks in the South Asian school year. Most likely this will be in summer 2005. The grantee should work closely with the Bureau to assess local conditions and determine the most feasible timeline for the various phases of the program.
In coordination with the Public Affairs Sections (PAS) of the U.S. Embassies in Islamabad and New Delhi, participants will be recruited and selected by the United States Educational Foundations (USEFs) in each country. Special efforts will be made to recruit teacher or teacher-trainers working in non-elite institutions with students from priority communities identified by the Embassies. Following U.S. training activities, PAS and USEFs will work with the local educational officials as appropriate to facilitate follow-on training activities.
The grantee institution will be responsible for conducting an initial planning visit to Pakistan, if feasible, and to India, to consult with representatives from the USEFs, U.S. Embassies, Ministries of Education, and local educators. Based on this trip, the grantee will assess the educational and teacher training needs in both countries as a basis for project development.
After the participants have been selected, but prior to their departure to the U.S., the USEFs in India and Pakistan will conduct pre-departure orientations for their country participants.
The orientations will provide information about the respective program, goals, and expectations of participants, as well as address issues about participants' stay in the U.S. The grantee will work closely with both USEFs to organize the orientations and will develop orientation packets for each participant that cover the aforementioned material. These packets will be sent to the USEFs in advance of the scheduled pre-departure orientations.
Programs must comply with J-1 visa regulations. Please refer to Solicitation Package for further information.
Participants will spend approximately six weeks in the U.S. in the EFL training program organized by the U.S. grantee. The training should meet the needs of the Indian and Pakistani participants through activities designed by U.S. education specialists with appropriate expertise in American EFL instruction, curriculum development, and training. During the project, training and materials should include, whenever possible, modeling of teaching tolerance, in which participants are trained in teaching tolerance, effective cross cultural communication, and mutual respect.
The program should have two components: a five-week intensive academic program and a one-week cultural and educational program in Washington, DC. The five-week academic program should address innovative EFL teaching methodologies and approaches and their implementation in their respective countries. Significant time should also be allotted for the inclusion of related professional activities outside the classroom which will introduce participants to U.S. education specialists, such as visits to schools, consultations with U.S. teachers, in-school mentoring, and attendance at professional meetings. Also, training should integrate experiences and materials that help participants to develop an understanding of the culture and political system of the United States as well as an appreciation of American diversity. At a minimum, a one-week experiential component should be included in the five-week academic program in which participants observe best practices in EFL instruction and training in a U.S. school. Among the topics to be addressed during the program are: computer literacy skills for EFL instruction, critical thinking, communication, conflict resolution, analytical and evaluation skills, and student development and motivation. In consultation with the Teacher Exchange Branch, the grantee should also plan and implement a three-to-five day site visit to Washington, DC. This visit will allow participants to meet representatives from the U.S. Department of State, as well as other government and private sector agencies, and visit other cultural and educational sites. This visit should be an integral part of the program, complementing and reinforcing the academic material of the training.
Proposals should outline practical and feasible in-country workshops, which build on the achievements of the U.S.-based training while promoting the continued exchanges of ideas among the participants and the U.S. grantee organization. The grantee will facilitate these in-country workshops at which participants will present what they have learned during the project to other professional colleagues. One workshop will take place in each country, each with a mixed group of teachers and administrators who attended the U.S. based-training, from both India and Pakistan.
Applicants must submit a comprehensive budget for the entire program. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may submit separate sub-budgets for each program component, phase, location, or activity to provide clarification. The Bureau anticipates awarding one grant, not to exceed $500,000, to support program and administrative costs required to implement the South Asian Teacher Training Project. Bureau guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost sharing and funding from private sources in support of its programs.
Allowable costs for the program include the following:
(1) Instructional costs, including salaries and benefits of grantee organization, honoraria for outside speakers, educational materials;
(2) Travel, lodging, meals, and incidentals for participants;
(3) Expenses associated with cultural activities planned for the participants (for example, tickets, transportation);
(4) Follow-on workshops in India and Pakistan; and
(5) Administrative costs.
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
The Teacher Exchange Branch, Office of Global Educational Programs, ECA/A/S/X, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547. Telephone: 202-619-6589, fax: 202-401-1433, or e-mail:
Please read the complete
Applicants must follow all instructions in the Solicitation Package. The original and 8 copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/X/04-06, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Applicants must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the Public Affairs Sections at the U.S. embassies for its review.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
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Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Pub. L. 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided through legislation.
The Office of Global Educational Programs of the Bureau of Educational and Cultural Affairs announces an open competition for the Turkish Student Teacher Internship Project. Public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3) may submit proposals to administer an eight-week teacher training program for graduate students of education from Turkey. The focus of the program is to familiarize participants with U.S. student-centered teaching methods and the use of technology in the classroom. The exchange experience should also give Turkish participants an in-depth experience in American life and culture and contribute to mutual understanding between Turkey and the United States. The program should include both a theoretical component, provided through professional development seminars in an academic setting, and a practical component, provided through practice teaching experience under the guidance of experienced mentor teachers. Interested organizations should indicate strong contacts with local school districts in order to provide the practical student-teaching component, as well as a demonstrated ability to conduct a substantive academic program. Host schools for teacher-training internships may be public, private, magnet or charter schools, and should exemplify best practices. The successful proposal will demonstrate the organization's experience in international educational exchange and internship programs, and an understanding of Turkish history, culture, religion and education.
In the long-term, this program is expected to assist Turkish educators as they prepare students to live in an increasingly interdependent world, and to provide these teachers with an in-depth exchange experience in the United States. It is intended that this experience will provide also a basis for continuing contact with the U.S. with a view to promoting mutual understanding between our countries and cultures.
The orientation should provide information about the program, the program's goals, and expectations of participants. It should also offer a
Upon their arrival in the United States, the participants should receive follow-up orientation that includes a basic introduction to American life and customs, and how these differ from practices in their home country. They should also receive academic training on teaching methodology and procedures. Teachers should then be placed in small groups at local schools, paired with experienced U.S. teachers whose academic specialization matches their own. Internship activities should include: observing a variety of teaching methods (inquiry, active classroom, group projects, etc.) as well as computer-based lessons; working individually with a mentor teacher on curriculum development; and team teaching. While the greatest emphasis is placed on immersing student teachers actively in the American classroom environment, the participants should also participate in development seminars on related topics in a university academic setting. The internship and seminars will also help participants to create a curriculum development project or portfolio to use upon their return to Turkey.
• Cross-cultural orientation (2-4 days): Introduction to U.S. government as it relates to education, U.S. education system, American culture through site visits and a cross-cultural adjustment seminar;
• Site visits in school districts (2-3 days): To all levels and types of schools, including economically and ethnically diverse schools;
• Internships in high schools (6 weeks): Each student teacher will work with a U.S. mentor teacher individually or with one other student teacher; activities include classroom observation, team teaching, and cultural presentations;
• Exposure to local school governance: through such activities as attendance at faculty, board of education, and PTA meetings;
• Professional development seminars planned and conducted in an academic setting to complement school-based training: topics may include classroom management, conflict resolution, diversity, and curriculum development. Seminars may be spread throughout the six weeks or take the form of a mid-program conference/debriefing;
• Final debriefing (1-2 days): Student teachers will share what they have observed and learned, perhaps through presentations they make to each other within the group;
• Curriculum development project: By the end of the eight-week program, the student teachers should complete a project incorporating a new teaching method or technology that they will put into practice when they begin teaching. Students should be able to use this project to brief fellow students at seminars held at their home universities, and so share the knowledge they have gained during their exchange experience with a wider group of MA candidates in Turkey.
• Cultural experiences: The project should provide opportunities for participants to interact with the local community through home stays and non-school-based groups, take part in activities reflecting the diversity of American society, to speak to Americans about Turkish history and culture.
• Final debriefing in Washington, DC: This portion of the program will allow Bureau staff to discuss the program in detail with the participants and get input on how to improve such programs in the future. A cultural program will also be part of the Washington visit.
• Plan and implement the exchange program in all aspects, including both the academic and practical component.
• Locate school districts to host groups for internships through informal competition (schools must submit a brief proposal outlining their interest, understanding of goals, examples of best practices, and commitment to mentoring). School districts should be within the driving distance from the administering organization, and should expose participants to more than one educational system or approach. Schools should designate an experienced mentor teacher to oversee the day-to-day activities of the participants;
• Conduct orientations in Turkey (pre-departure) and U.S., professional development seminars and debriefing;
• Monitor and evaluate the program;
• Administer all participant logistics: International transportation, ground transportation to local schools and training sites, participant per diem and housing, U.S. government forms—visas, tax, social security, etc.
• Arrange for home stays for at least some portion of the exchange visit, perhaps through local schools or other participating organizations; if home stays are not available for the entire period, arrange other cost-efficient housing; home stay hosts, as well as schools, should be sensitive to accommodating participants' religious observance;
• Administer all financial aspects of the program and comply with reporting requirements;
• Arrange a visit to Washington, DC, at the end of the group's U.S. program, to include meetings with Bureau representatives, a cultural program, and a school site visit if possible;
• Plan follow-on activities with host schools and participants in conjunction with participants' academic program.
The Commission for Educational Exchange between the U.S.A. and Turkey will assist in obtaining international airline tickets; the grantee will pay the airline office in Ankara for the air tickets, in coordination with the Fulbright Commission there. The purchase of tickets must be in compliance with the Fly America Act. The grantee will prepare visa documents and enroll the student teachers in a health insurance policy. The Fulbright Commission and the sending universities will assist in the pre-departure orientation and will conduct a post-program evaluation. The grantee will coordinate with the Fulbright Commission on all non-U.S. based aspects of program administration. The proposal should address mechanisms for communication and coordination.
The grantee will coordinate with the Teacher Exchange Branch in the Bureau of Educational and Cultural Affairs regarding all U.S.-based activities, reporting and evaluation. It will be important for the grantee to help create a network for participants to communicate and support each other in using the new methodologies after they have completed their academic program in Turkey and become teachers. A strong proposal will address follow-on activities in conjunction with the Fulbright Commission and the sending university or universities (without Bureau funding) to increase future impact and participant support.
The grant will begin on or about September 1, 2004, and the grantee should complete all exchange activities by December 2005. The internship program will take place in March-April 2005 or October-November 2005. Please refer to additional program specific guidelines in the Project Objectives, Goals, and Implementation (POGI) document.
Programs must comply with J-1 visa regulations. Please refer to Solicitation Package for further information.
Allowable costs for the program include the following:
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
The Teacher Exchange Branch of the Office of Global Educational Programs, ECA/A/S/X, Room 349, U.S. Department of State, 301 4th Street, SW., Washington, DC 20547, telephone: 202-619-4569, fax: 202-401-1433, e-mail:
Please read the complete
Applicants must follow all instructions in the Solicitation Package. The original and seven copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.:
Applicants must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the Public Affairs Section at the U.S. embassy for its review.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
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2.
3.
4.
5.
6.
7.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided through legislation.
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the application.
Office of the Secretary (OST), U.S. Department of Transportation (DOT).
Informational Notice: HHS Drug Testing Proposals.
The Department of Transportation (DOT) is issuing this notice to call to the attention of employers, employees, testing service agents, and other interested persons in its transportation industry drug testing program a notice proposing important new Department of Health and Human Services (HHS) drug testing procedures. Because of the close relationship between HHS and DOT drug testing procedures, participants in the DOT transportation industry drug testing program should be aware of important issues that HHS is considering, which may later affect the DOT testing program.
Comments on the HHS proposal should be sent directly to HHS. The following are HHS” instructions to commenters on how and where to submit comments:
You may submit comments, identified by Docket Number 04-7984, by any of the following methods:
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The HHS informational contact on this rulemaking is Walter F. Vogl, Ph.D., Drug Testing Section, Division of Workplace Programs, CSAP, 5600 Fishers Lane, Rockwall II, Suite 815, Rockville, Maryland 20857, (301) 443-6014 (voice), (301) 443-3031 (fax),
The Department of Health and Human Services (HHS) has issued an important notice proposing to revise its Mandatory Guidelines for Federal Workplace Drug Testing programs [69 FR 19673; April 13, 2004]. Interested persons may access the HHS document on the Internet at the following URL:
This HHS proposal does not propose to amend the drug testing requirements and procedures that apply to the Department of Transportation drug testing program for DOT-regulated industries (49 CFR Part 40). Nevertheless, we believe that employers, employees, and testing service providers involved in the DOT testing program should be aware of the HHS notice. We recommend that DOT program participants review the HHS proposals and, if they have views or concerns to express, comment on the notice
Part 40, first issued in 1988, incorporated the substance of original HHS Guidelines, adapting the HHS provisions to the transportation workplace. In 1991, Congress enacted the Omnibus Transportation Employee Testing Act. This statute recognized the existing close relationship between the HHS guidelines and Part 40. The statute requires DOT to “incorporate” the HHS guidelines and amendments to them into DOT testing procedures, while leaving DOT sufficient authority to tailor its own program. Because of this statutorily recognized relationship between these guidelines and Part 40, any HHS final rule resulting from its current proposal, while not directly regulating transportation industry employers, will necessarily have to be considered by the Department of Transportation in the context of potential future revisions to Part 40.
We urge interested persons to read the HHS document carefully and to provide any comments directly to the HHS Docket.
Federal Aviation Administration (FAA), DOT.
Notice of new task assignment for the Aviation Rulemaking Advisory Committee (ARAC).
The FAA assigned the Aviation Rulemaking Advisory Committee a new task to develop guidance that will support industry compliance with the Aging Airplane Safety Rule requirements that relate to supplemental structural inspections. This new tasking will also address certain aspects of recommendations made during a previous ARAC tasking related to widespread fatigue damage. This notice is to inform the public of this ARAC activity.
Mike Kaszycki, Federal Aviation Administration, Transport Standards Staff, 1601 Lind Avenue, SW., Renton, Washington 98055-4056,
The FAA established the Aviation Rulemaking Advisory Committee to provide advice and recommendations to the FAA Administrator on the FAA's rulemaking activities with respect to aviation-related issues. This includes obtaining advice and recommendations on the FAA's commitments to harmonize Title 14 of the Code of Federal Regulations (14 CFR) with its partners in Europe and Canada.
This new tasking shall apply to transport category airplanes with a type-certificated passenger seating capacity of 30 or greater, or a maximum payload capacity of 7,500 pounds or greater, operated under part 121 or under part 129 (U.S. registered airplanes).
There are four major tasks to be completed under this tasking:
Draft an Advisory Circular (AC) that contains guidance to support the following two paths of compliance with §§ 121.370a and 129.16 of the Aging Airplane Safety Interim Final Rule (AASIFR):
1.
2.
A written report will also be submitted that includes an action plan for the implementation of the recommendations of task 1 that will be addressed in task 4 below. The report is to be submitted to the Aviation Rulemaking Advisory Committee (ARAC), Transport Airplane and Engine Issues Group, for approval. The ARAC, Transport Airplane and Engine Issues Group, will determine as appropriate the means by which the action plan will be implemented. The proposed actions and implementation process approved by the ARAC, Transport Airplane and Engine Issues Group, will be subject to FAA concurrence.
In the process of drafting the AC, the ARAC should assess the effectiveness of AC 91-56B to provide guidance to TC and STC holders for developing damage-tolerance-based inspections and procedures for repairs made to aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure. The ARAC should do the following:
• Assess the effectiveness of AC 91-56B to support Industry compliance with the AASIFR with respect to repairs.
• Document any improvements to the AC that would provide better direction with respect to the guidance for TC and STC holders in their development of damage-tolerance-based inspections and procedures for repairs.
The ARAC is requested to validate that the guidance material in the new AC will result in programs that provide a high degree of autonomy for part 121 and 129 certificate holders while supporting compliance with the AASIFR. In order to determine a rational approach for addressing repairs to aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure, and are not currently covered by a mandated program, the AC should provide guidance to the part 121 and 129 certificate holders and to the type certificate holder to address the seven issues listed below.
1. The significance of the airplane certification amendment level in providing direction for the development of damage tolerance inspections and methods for repairs.
2. The degree to which Supplemental Structural Inspection Documents/Programs (SSID/P) or equivalent documents/programs provide direction to repair the structure using damage-tolerance-rated repairs. The assessment should apply to SSID/Ps or equivalent documents/programs developed for 14 CFR part 25 pre-amendment 25-45 transport airplane models having a maximum gross takeoff weight of 75,000 lbs or greater. The following should be identified:
• Areas of aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure, which are not covered by SSID/Ps or equivalent documents/programs
• Significant assumptions applied in developing SSID/Ps or equivalent documents/programs
• Any significant issues in the implementation of the requirements of SSID/Ps or equivalent documents/programs
• Data from SSID/Ps or equivalent documents/programs that would be useful in supporting this new tasking
3. The degree to which an applicable airplane model's Airworthiness Limitations Section (ALS) provides direction to repair the structure using damage-tolerance-rated repairs. This assessment should apply to damage-tolerance-based inspection programs/data developed for 14 CFR part 25 amendment 25-45 or later transport airplane models having a maximum gross takeoff weight of 75,000 lbs or greater. The following should be identified:
• Areas of aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure, which are not covered by a damage-tolerance-based inspection program/data
• Any significant issues in the implementation of the requirements of the damage-tolerance-based inspection programs/data
• Data from the damage-tolerance-based inspection programs that would be useful in supporting this new tasking
4. The degree to which existing Repair Assessment Guideline documents developed for §§ 121.370 and 129.32 provide damage-tolerance-based inspections for repairs made to aircraft structure that is susceptible to fatigue
• Areas of the aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure, which are not covered by these documents
• Data from these documents that would be useful in supporting this new tasking
5. Identify the issues/difficulties industry has encountered with establishing damage-tolerance-based inspections and procedures for repairs as required by various FAA approaches in issuing SSIP airworthiness directives (
• Comparison of approaches with pros and cons for each approach
• Data from these documents that would be useful in supporting this new tasking
6. Assess the extent to which Structural Repair Manuals (SRM) provide damage-tolerance-based inspections for repairs made to aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure.
7. Assess the need to include damage-tolerance-based inspections and procedures in TC and STC Holder issued Service Bulletins (SB) that provide repair instructions for aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure.
Prepare a written report assessing how an operator would include damage-tolerance-based inspections and procedures for alterations and modifications made to aircraft structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure. This assessment would include, but is not limited to, alterations and modifications performed under an STC, ATC, FAA field approval (
• Assess the effectiveness of AC 91-56B to support Industry compliance with the AASIFR with respect to alterations and modifications.
• Document any improvements to the AC that would provide better direction with respect to the guidance for STC holders in their development of damage-tolerance-based inspections and procedures for alterations and modifications.
The written report will include a proposed action plan to address and/or accomplish these recommendations, including actions that should be addressed in task 4 below. The report should also provide a recommendation on the means of compliance provided by the AC developed in Task 1 in regards to repairs installed on STC or ATC approved alterations and modifications. The report is to be submitted to the ARAC, Transport Airplane and Engine Issues Group, for approval. The ARAC, Transport Airplane and Engine Issues group, will determine as appropriate the means by which the action plan will be implemented. The proposed actions and implementation process approved by the ARAC, Transport Airplane and Engine Issues Group, will be subject to FAA concurrence (FAA concurrence is necessary to ensure actions will support industry compliance with the AASIFR).
Provide a written report providing recommendations on how best to enable part 121 and 129 certificate holders of airplanes with a maximum gross take-off weight of greater than 75,000 pounds to assess the WFD characteristics of structural repairs, alterations, and modifications as recommended in a previous ARAC tasking. The written report will include a proposed action plan to address and/or accomplish these recommendations including actions that should be addressed in task 4 below. The report is to be submitted to the ARAC, Transport Airplane and Engine Issues Group, for approval. The ARAC, Transport Airplane and Engine Issues Group, will determine as appropriate the means by which the action plan will be implemented. The proposed actions and implementation process approved by the ARAC, Transport Airplane and Engine Issues Group, will be subject to FAA concurrence.
Oversee the Structural Task Group (STG) activities that will be coordinated for each applicable airplane model by the respective type certificate holders' and part 121 and 129 certificate holders. These STG activities will involve the development of model specific approaches for compliance with §§ 121.370a and 129.16 under the guidance material supplied in Task 1.
As part of this tasking, the AAWG will identify those airplane models that do not have an STG, and will assess the need to form one (based on industry benefit). For those airplane models that will need to form an STG, the AAWG will initiate the coordination required to form the STG with the respective type certificate holder and/or part 121 and 129 certificate holders.
In addition, the AAWG will support the implementation of the action plan to address recommendations made in tasks 2 and 3 as determined necessary by the ARAC, Transport Airplane and Engine Issues Group, and concurred with by the FAA.
The tasking will be performed in two phases. In Phase 1, the ARAC will provide to the FAA the results of Tasks 1 through 3. Phase 1 should be accomplished by December 16, 2005.
In Phase 2, the Structures Task Groups, under the direction of the ARAC, should produce the model specific guidance material, Task 4, using the guidelines and procedures of the AC produced in Phase 1. The ARAC will be responsible for coordinating and overseeing the STG's application of the AC. Phase 2 documents should be completed by December 18, 2009.
ARAC accepted the task and assigned the task to the Airworthiness Assurance Working Group, Transport Airplane and Engine Issues. The Structural Task Groups (STG) composed of type certificate and part 121 and 129 certificate holders familiar with the specific model aircraft will support the working group. The working group will serve as staff to ARAC and assist in the analysis of the assigned task. ARAC must review and approve the working group's recommendations. If ARAC accepts the working group's recommendations, it will forward them to the FAA.
The Airworthiness Assurance Working Group must comply with the procedures adopted by ARAC. As part
1. Recommend a work plan for completion of the task, including the rationale supporting such a plan for consideration at the next meeting of the ARAC on transport airplane and engine issues held following publication of this notice.
2. Give a detailed conceptual presentation of the proposed recommendations prior to proceeding with the work stated in item 3 below.
3. Draft the appropriate documents and required analyses and/or any other related materials or documents.
4. Provide a status report at each meeting of the ARAC held to consider transport airplane and engine issues.
The Airworthiness Assurance Working Group will be composed of technical experts having an interest in the assigned task. A working group member need not be a representative or a member of the full committee.
If you have expertise in the subject matter and wish to become a member of the working group you should write to the person listed under the caption
If you are chosen for membership on the working group, you must represent your aviation community segment and actively participate in the working group (
Once the working group has begun deliberations, members will be added or substituted only with the approval of the assistant chair, the assistant executive director, and the working group chair.
The Secretary of Transportation determined that the formation and use of the ARAC is necessary and in the public interest in connection with the performance of duties imposed on the FAA by law.
Meetings of the ARAC will be open to the public. Meetings of the Airworthiness Assurance Working Group will not be open to the public, except to the extent that individuals with an interest and expertise are selected to participate. The FAA will make no public announcement of working group meetings.
Federal Aviation Administration, DOT.
Notice of policy change.
This notice announces a transition that will make docket files for future airworthiness directives (AD) available on the Internet. The docket files will be available in the DOT's Docket Management System (DMS).
Linda S. Walker, Program Manager, Federal Aviation Administration, Aircraft Certification Service, Aircraft Engineering Division, Delegations and Airworthiness Programs Branch, AIR-140, Room, 813, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-9592; fax (202) 267-5340; e-mail:
In mid-May, the FAA will make change that will make docket files for future AD actions easier for you to access. With the exception of some AD actions already in process, we will be placing the docket files for many of our AD actions into the DMS on the Internet at
The DMS is an electronic, image-based database in which DOT stores the docketed material for DOT rulemaking activities for you to view. This online database contains more than 1.2 million pages of regulatory and adjudicatory information for easy research and retrieval. Anyone with Internet access can submit comments on rulemaking activities electronically to the DMS and view comments already submitted.
The AD docket files contain justification documents that support an AD action. Once we begin placing AD dockets on the DMS, all material routinely part of the AD docket file will be available electronically with the exception of any materials that for any reason cannot be scanned. Materials that cannot be scanned will be maintained in the office of the issuing Directorate or in the Office of the Assistant Chief Counsel for the issuing Directorate.
This policy will apply to future docket files. You can continue to view the docket files of, and submit comments on, previous AD actions that are not maintained in the DMS, at the addresses indicated in the AD actions. We will not transfer existing paper dockets to the DMS. If you do not have Internet access, each AD action published in the
We will continue to publish AD actions in the
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for a proposed transportation project in the city of Providence, Rhode Island.
Lucy Garliauskas, Division Administrator, Federal Highway Administration, 380 Westminster Mall, Room 547, Providence, Rhode Island 02903, Telephone: (401) 528-4541, OR Kazem Farhoumand, P.E., Deputy Chief Engineer, Rhode Island Department of Transportation, 2 Capitol Hill, Room 236, Providence, Rhode Island 02903,
The FHWA, in cooperation with the Rhode Island Department of Transportation, will prepare an Environmental Impact Statement (EIS) on a proposal to improve the US Route 6 / State Route 10 interchange in Providence, Rhode Island. The proposed project would involve the rehabilitation, reconstruction or replacement of U.S. Route 6 and State Route 10 for a distance of approximately one mile each.
The EIS will investigate the environmental and socioeconomic impacts of various routing options to improve the interchange considered necessary to address the deterioration of the existing structures and substandard geometry. Preliminary studies undertaken to date have identified the following options to be considered for further evaluations. The options under review include (1) taking no action; (2) rehabilitating the existing bridges; (3) replacing all components of the existing bridges on current location; (4) reconstructing the interchange on new location, construction of new bridges, and completing all movements of the interchange.
A scoping meeting to discuss the potential environmental impacts will be held at 10 a.m. on Wednesday, June 16, 2004, at Rhode Island Department of Administration, One Capitol Hill, Providence, Rhode Island 02903 in Conference Room A on the second floor. Written comments received within 30 days of the scoping meeting will be incorporated into the record.
In addition to the scoping meeting, public participation will continue throughout the EIS process. Public workshops will be held in Providence, and potentially in other affected communities, to discuss the proposed Environmental Impact Statement including all project options and issues. Written Comments will be incorporated into this NEPA scoping process.
In addition, a formal public hearing will be held to receive comments regarding the proposed Environmental Impact Statement. Public notice will be given of the time and place of the public hearing. The draft EIS will be available for public and agency review and comment prior to the public hearing.
Comments and suggestions regarding this proposed action and the EIS are requested from all interested parties and should be directed to the Rhode Island Department of Transportation, 2 Capitol Hill, Room 231-D, Providence, Rhode Island 02903.
Federal Transit Administration (FTA), DOT.
Notice.
FTA is issuing a request for grant proposals (RFP) for Prototype Development and Testing of Transit Operations Decision Support Systems (TODSS) Core Functional Requirements.
Request for grant proposals may be viewed at the Intelligent Transportation Systems (ITS) Transit Forums collaboration Web site (
Proposals shall be addressed to Mr. Brian Cronin, Advanced Public Transportation Systems (APTS) Division, Room 9402, TRI-11, Federal Transit Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590 and shall reference “TODSS Core Functional Requirement Prototype Development and Testing.”
Technical questions or concerns may be directed to Mr. Brian Cronin or Mr. Venkat Pindiprolu via phone at 202-366-4955 or via e-mail at
Transit Operations Decision Support Systems (TODSS) are systems designed to support dispatchers and others in real-time operations management in response to incidents, special events, and other changing conditions in order to improve operating speeds, reduce passenger wait times, and restore service when disruptions occur. In May 2003, FTA and ITS Joint Program Office (JPO) completed the “Transit Operations Decision Support Systems (TODSS): Core Functional Requirements for Identification of Service Disruptions and Provision of Service Restoration Options 1.0”. Please visit the FTA ITS Transit TODSS collaboration website to view this document (
The project provides support for development of the detailed functional requirements and system specific architecture and validity and verification testing of the core requirements. It is expected that the process will also be documented, and an evaluation of the core requirements with recommended changes and lessons learned be developed as a deliverable. The effort also includes presentations to, and feedback from, the TODSS working group and U.S. DOT staff (FTA and ITS JPO) at key milestones during the life of the project. FTA may select up to two prototype development sites for this effort.
Motive Rail, Inc. d/b/a Missouri North Central Railroad (MNCR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to lease from the City of Chillicothe, MO, and operate 37.3 miles of rail line located between milepost 188.7 at Brunswick, MO, and milepost 226.0 at Chillicothe. MNCR certifies that its projected revenues as a result of this transaction will not result in MNCR becoming a Class II or Class I rail carrier, and further certifies that its projected annual revenues will not exceed $5 million.
MNCR indicates that it expected to consummate the transaction on or shortly after April 30, 2004.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34500, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Karl Morell, Suite 225, 1455 F St., NW., Washington, DC 20005.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
Liquidation of an insurance company formerly certified by this Department as an acceptable surety/reinsurer on Federal bonds.
Surety Bond Branch at (202) 874-6850.
Statewide Insurance Company, an Illinois company, formerly held a Certificate of Authority as an acceptable surety on Federal bonds and was last listed as such at 66 FR 35056, July 2, 2001. The Company's authority was terminated by the Department of the Treasury effective April 11, 2002. Notice of the termination was published in the
On January 6, 2004, upon a petition by the Director of Insurance of the State of Illinois, the Circuit Court of Illinois issued an Order of Liquidation with respect to Statewide Insurance Company. J. Anthony Clark, Director of Insurance of the State of Illinois, and his successors in office, were appointed as the Liquidator. All persons having claims against Statewide Insurance Company must file their claims by January 6, 2005, or be barred from sharing in the distribution of assets.
All claims must be filed in writing and shall set forth the amount of the claim, the facts upon which the claim is based, any priorities asserted, and any other pertinent facts to substantiate the claim. Federal Agencies should assert claim priority status under 31 U.S.C. 3713, and send a copy of their claim, in writing, to: Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 875, Ben Franklin Station, Washington, DC 20044-0875, Attn: Ms. Jennifer Blackwell, Legal Assistant.
The above office will consolidate and file any and all claims against Statewide Insurance Company, on behalf of the United States Government. Any questions concerning filing of claims may be directed to Ms. Blackwell at (202) 307-1114.
The Circular may be viewed and downloaded through the Internet (
Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F07, Hyattsville MD 20782.
Office of Planning and Evaluation, Department of Veterans Affairs.
Notice.
The Office of Policy, Planning and Preparedness, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before July 12, 2004.
Submit written comments on the collection of information to David Walton, Project Manager, Office of Assistant Secretary for Planning, Policy and Preparedness (008B1), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420 or e-mail
David Walton at (202) 273-5061 or FAX (202) 273-5991.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is
With respect to the following collection of information, the Office of Planning Policy, and Preparedness invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VA's functions, including whether the information will have practical utility; (2) the accuracy of VA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Securities and Exchange Commission.
Proposed rule.
We are proposing new and amended rules and forms to address comprehensively the registration, disclosure and reporting requirements for asset-backed securities under the Securities Act of 1933 and the Securities Exchange Act of 1934. Principally, we are proposing to: Update and clarify the Securities Act registration requirements for asset-backed securities offerings, including expanding the types of asset-backed securities that may conduct delayed primary offerings on Form S-3; consolidate and codify existing interpretive positions that allow modified Exchange Act reporting that is more tailored and relevant to asset-backed securities; provide tailored disclosure guidance and requirements for Securities Act and Exchange Act filings involving asset-backed securities; and streamline and codify existing interpretive positions that permit the use of written communications in a registered offering of asset-backed securities in addition to the statutory registration statement prospectus.
Comments should be received on or before July 12, 2004.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number S7-21-04. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Jeffrey J. Minton, Special Counsel, or Jennifer G. Williams, Attorney-Advisor, Office of Rulemaking, Division of Corporation Finance, at (202) 942-2910, or Eric J. Schuppenhauer, Professional Accounting Fellow, Office of Chief Accountant, at (202) 942-4400, U.S. Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549.
We are proposing to amend Rules 1-02, 2-01, 2-02 and 2-07
Asset-backed securities, or ABS, are securities that are backed by a discrete pool of self-liquidating financial assets. Asset-backed securitization is a financing technique in which financial assets, in many cases themselves less liquid, are pooled and converted into instruments that may be offered and sold more freely in the capital markets.
The ABS market is fairly young and has rapidly become an important part of the U.S. capital markets. One source estimates that U.S. public ABS issuance grew from $46.8 billion in 1990 to $416 billion in 2003.
Asset-backed securities and ABS issuers differ from corporate securities and operating companies. In offering these securities, there is generally no business or management to describe. Instead, information about the transaction structure and the quality of the asset pool and servicing is often what is most important to investors. Many of the Commission's existing disclosure and reporting requirements, which are designed primarily for corporate issuers, do not elicit the information that is relevant for most asset-backed securities transactions. Over time, Commission staff, through no-action letters and the filing review process, has developed a framework to address the different nature of asset-backed securities while being cognizant of developments in market practice.
We now propose to address comprehensively the treatment of asset-backed securities under the Securities Act and the Exchange Act. With a few exceptions, our proposals consolidate and codify current staff positions and industry practice. Our proposals relate to four primary regulatory areas: Securities Act registration; disclosure; communications during the offering process; and ongoing reporting under the Exchange Act.
We propose a definition of asset-backed security that would demarcate the securities and offerings to which the new proposed rules would apply. The proposed definition would consolidate several staff positions regarding the definition of asset-backed security, including those regarding delinquent and non-performing pool assets. The proposed definition also would allow more lease-backed transactions to be included in the definition of asset-backed security and permit the use of master trusts and revolving periods by more asset classes. These changes are designed to remove regulatory uncertainty and reduce regulatory obstacles and costs of securitization.
In 1992, the Commission amended Form S-3 to allow registration of offerings of investment grade asset-backed securities on a delayed, or
We propose to clarify that the depositor—often the sponsor or an affiliated intermediary that receives the pool assets and transfers them to the issuing entity—would be the statutory “issuer” for purposes of signing the registration statement for the asset-backed securities transaction. We also propose to alleviate impediments to the shelf registration of offerings of asset-backed securities by foreign issuers or backed by foreign financial assets. Finally, we propose to codify, consolidate and streamline staff positions regarding when and how the offering of underlying debt securities must be concurrently registered with an offering of the asset-backed securities backed by those underlying securities.
Currently, there are no disclosure items specifically tailored to asset-backed securities. We propose a new principles-based set of disclosure items, “Regulation AB,” that would form the basis for disclosure in both Securities Act registration statements and Exchange Act reports. While we request comment on this point, we do not believe it would be practical or effective to draft detailed disclosure guides for each asset type that may be securitized. Instead, we have attempted to identify the disclosure concept required and provide several illustrative examples, while understanding that the application of the particular concept must be tailored to the information material to the particular transaction and asset type involved.
For the most part, our proposed disclosure items are based on the market-driven disclosures that appear today. With a proposed codification of a universal set of disclosure items, however, we do seek a reevaluation by transaction participants of the manner and content of presented disclosure, including the elimination of unnecessary boilerplate and a de-emphasis on unnecessary legal recitations of terms. We also understand that existing disclosure standards may not adequately capture certain categories of information that may be material to an asset-backed securities transaction, such as the background, experience, performance and roles of various transaction parties, including the sponsor, the servicing entity that administers or services the financial assets and the trustee. Our proposed disclosure items relating to these entities are designed to elicit more useful information in these areas. We also propose to require, for the first time, that certain statistical information on a “static pool” basis be provided if material to the transaction to aid in an investor's analysis of current and prior pool performance. Consistent with current practice, we do not propose to require audited financial statements regarding the issuing entity for the asset-backed securities in Securities Act or Exchange Act filings, although we do request comment on this point.
Finally, we propose to consolidate and codify current staff positions on when financial or other descriptive information would be required regarding certain third parties, such as obligors of financial assets that reach pool concentration levels or significant providers of credit enhancement or other support for the asset-backed securities. We also propose to streamline and codify current staff positions on when financial information regarding such third parties may be incorporated by reference or referred to in an asset-backed securities filing in lieu of actually including the information in the filing.
In the mid 1990s, Commission staff issued a series of no-action letters permitting the use of various written materials in addition to the statutory registration statement prospectus in an offering of asset-backed securities.
Shortly after the no-action letters referred to above were issued, Commission staff also issued a no-action letter regarding the publication of research reports by brokers or dealers proximate to an offering of asset-backed securities registered or to be registered on Form S-3.
As with registration, the ongoing periodic and current reporting requirements applicable to operating companies do not elicit information that would be the most relevant for asset-backed securities. First through a series of exemptive orders, and then primarily through the issuance of no-action letters and other interpretations, Commission staff has allowed modified Exchange Act reporting by ABS issuers. In lieu of quarterly reports on Form 10-Q,
We propose to codify the basic modified reporting system for asset-backed securities. To distinguish periodic reporting regarding distributions from disclosure of important events that appropriately call for current reporting, we propose one new form type, Form 10-D, to act as the report for the periodic distribution information currently provided under cover of Form 8-K. We also propose to specify which of the Commission's recently adopted Form 8-K events would be applicable to asset-backed securities, and we propose a few additional events specific to asset-backed securities. Consistent with the modified reporting no-action letters, we propose to exclude ABS from quarterly reporting on Form 10-Q and exempt ABS from reporting under Section 16 of the Exchange Act.
We propose to specify the disclosure requirements applicable for annual reports on Form 10-K regarding asset-backed securities, which also will be drawn from Regulation AB, and to codify the form of certification to be used under Section 302 of the Sarbanes-Oxley Act. We propose to retain the long-standing requirements for a servicer compliance statement and a report by an independent public accountant as to compliance with particular servicing criteria. Regarding servicing criteria, there are very few existing criteria for evaluating compliance, the most widely used of which currently is the Uniform Single Attestation Program, or USAP, promulgated by the Mortgage Bankers Association of America. However, the USAP's “minimum servicing standards” are designed to be applicable only to servicing of mortgages and do not necessarily represent the full spectrum of servicing activities that may be material to an asset-backed securities transaction. We propose disclosure-based servicing criteria that would form the basis for an assessment and assertion as to material compliance with such criteria (or disclosure as to non-compliance). We also continue the practice of accountant involvement in assessing compliance with servicing criteria by proposing a requirement that a registered public accounting firm attest to the assertion of compliance. Both the report containing the assertion of compliance and the accountant's attestation report would be required to be filed with the report on Form 10-K.
As with the Securities Act, we propose to codify that the depositor is the “issuer” for purposes of Exchange Act reporting regarding asset-backed securities. We also propose to specify who may sign the various Exchange Act reports. Under the proposals, either the depositor or the servicer may sign the reports on Form 10-K, Form 10-D and Form 8-K, and the same party that signs the annual report on Form 10-K also would be the party that would be required to sign the Sarbanes-Oxley Act Section 302 certification and make the proposed assertion of compliance with servicing criteria. We also propose to clarify how filings regarding asset-backed securities are to be filed on EDGAR and the operation of the reporting obligation for asset-backed securities under Section 15(d) of the Exchange Act,
Finally, our proposals include several miscellaneous and technical amendments to our rules and forms to accommodate the new proposals and update references regarding asset-backed securities. We also request comment on any additional areas that should be addressed regarding the registration, reporting and disclosure requirements for asset-backed securities under the Securities Act or the Exchange Act.
The ABS market rapidly has developed into an important part of the U.S. capital markets.
While the ABS market is still fairly young, it has rapidly become very large. By way of example, one source estimates that annual issuance of U.S. public non-GSE ABS grew from $46.8 billion in 1990 to $416 billion in 2003.
There are several distinguishing features between asset-backed securities and other fixed-income securities. For example, ABS investors are generally interested in the characteristics and quality of the underlying assets, the standards for their servicing, the timing and receipt of cash flows from those assets and the structure for distribution of those cash flows. As a general matter, there is essentially no business or management (and therefore no management's discussion and analysis of financial performance and condition) of the issuing entity, which is designed to be a solely passive entity. GAAP financial information about the issuing entity generally does not provide useful information to investors. Information regarding characteristics and quality of the assets is important for investors in assessing how a pool will perform. Information relating to the quality of servicing of the underlying assets also is relevant to assessing how the asset pool is expected to perform and the reliability of the allocation and distribution functions. Another focus is the legal and structural nature of the issuing entity and the transfer of the assets to the issuing entity to assess legal and credit separation from third parties. ABS investors also analyze the impact and quality of any credit enhancements and other support designed to provide additional protection against losses and ensure timely payments.
A sponsor typically initiates a securitization transaction by selling or pledging to a specially created issuing entity a group of financial assets that the sponsor either has originated itself or has purchased in the secondary market.
The issuing entity, most often a trust with an independent trustee, then issues asset-backed securities to investors that are either backed by or represent interests in the assets transferred to it. The proceeds of the sale of the asset-backed securities are used to pay for the assets that were transferred to the trust. Because the issuing entity is designed to be a passive entity, a “servicer,” which may often be an affiliate of the sponsor, is often necessary to collect payments from obligors of the pool assets, carry out the other important functions involved in administering the assets and to calculate and pay the amounts net of fees due to the investors that hold the asset-backed securities to the trustee, which actually makes the payments to investors.
The predominant purchasers of asset-backed securities today are institutional investors, including financial institutions, pension funds, insurance companies and money managers.
While some ABS transactions consist of simple pass-through certificates representing a pro rata share of the cash flows from the underlying asset pool, ABS transactions often involve multiple classes of securities, or tranches, with complex formulas for the calculation and distribution of the cash flows. In addition to creating internal credit enhancement or support for more senior classes, these structures allow the cash flows from the asset pool, and hence varying degrees of risk from pool performance, to be packaged into securities designed to address a given risk and return profile.
Transaction agreements specify the structure of an ABS transaction. A common form for these agreements is a “pooling and servicing agreement,” or PSA, often among the sponsor, the trustee and the servicer. A pooling and servicing agreement often governs the transfer of the assets from the sponsor to the issuing entity and sets forth the rights and responsibilities of participants. Typically the agreement also will detail how cash flows generated by the asset pool will be divided, typically referred to as the “flow of funds” or “waterfall.” The flow of funds specifies the allocation and order of cash flows, including interest, principal and other payments on the various classes of securities, as well as any fees and expenses, such as servicing fees, trustee fees or amounts to maintain credit enhancement or other support. Cash flows also may be directed into various accounts, such as reserve accounts to provide support against potential future shortfalls. The agreement also specifies the type and content of reports that will be provided to investors regarding ongoing performance of the transaction.
In addition to any internally provided credit enhancement or support, the sponsor or other third parties may provide external credit enhancements or other support for the asset-backed securities.
Credit rating agencies play a large role in most ABS transactions. As with a traditional corporate debt security, a rating on an asset-backed security is designed only to reflect credit risk. The rating generally does not address other market risks that may result from changes in interest rates or from prepayments on the underlying asset pool.
To date, there have been few Commission initiatives directly related to ABS. In connection with the passage of the Secondary Mortgage Market Enhancement Act of 1984 (SMMEA),
The staff has to date addressed the lack of a defined set of regulatory requirements for asset-backed securities through the filing review process and, where necessary, through staff no-action letters or interpretive statements. For example, through the filing review process, an informal disclosure scheme for ABS registration statements has developed taking into account evolving industry practices. The 2003 MBS Disclosure Report also provided valuable insight on the type of information investors find useful in ABS transactions. A system of modified reporting under the Exchange Act has developed, first through exemptive orders under Exchange Act Section 12(h),
The Commission recognizes that securitization is playing an increasingly important role in the evolution of the fixed income financial markets. Our staff has attempted to accommodate the different nature of ABS and evolving business practices, while reducing unnecessary or impractical compliance burdens, through its numerous no-action and interpretive positions. However, the accumulated informal guidance, while helpful to some ABS transactions, has diminished the transparency of applicable requirements because an ABS registrant or investor seeking to understand the applicable requirements must review and assimilate a large body of no-action letters and other staff positions. This time-consuming practice decreases efficiency and transparency and leads to uncertainty and common problems. Many issuers, investors and other market participants have requested a defined set of regulatory requirements for guidance.
The 1992 Release, as part of a broad effort to expand access to shelf registration, allowed shelf registration for offerings of investment grade
For offerings registered on a shelf basis on Form S-3, the prospectus disclosure in the registration statement is often presented through the use of two primary documents: The “base” or “core” prospectus and the prospectus supplement. The base prospectus outlines the parameters of the various types of ABS offerings that may be conducted in the future, including asset types that may be securitized, the types of security structures that may be used and possible credit enhancements. The registration statement at the time of effectiveness also contains a form of prospectus supplement, which outlines the format of deal-specific information that will be disclosed at the time of each takedown. At the time of a takedown, a final prospectus supplement is prepared which describes the specific terms of the takedown, and the base prospectus and the final prospectus supplement together form the final prospectus which is filed with the Commission pursuant to Securities Act Rule 424(b).
Currently, the term “asset-backed security” is defined only for purposes of Form S-3. As many of our proposals relate to the treatment of asset-backed securities regardless of the form on which their offering is initially registered, we are proposing to move the definition of “asset-backed security” to the definition section of proposed Regulation AB, our proposed sub-part in Regulation S-K for asset-backed securities (discussed more fully in Section III.B). We propose to retain any additional conditions appropriate for Form S-3 eligibility, such as an investment grade requirement, in General Instruction I.B.5 of Form S-3. Under our proposed format, however, a security that met the general definition of “asset-backed security” would be subject to the disclosure and other requirements we propose regardless of how registered.
After more than ten years of experience with the definition of “asset-backed security,” we believe that the core definition is still sound. The definition allows broad flexibility as to asset types and structures that we believe should be subject to the alternative disclosure and regulatory regime that exists for asset-backed securities. As the Commission stated in the 1992 Release, the definition does not distinguish between pass-through (
Experience with the definition has resulted in several interpretations since its adoption. These interpretations have developed primarily through staff processing of ABS registration statements and in a few instances through staff no-action letters. As such, these interpretations may not always have been transparent.
Accordingly, we propose to retain the same basic definition of asset-backed security, with one modification discussed below with respect to leases. We also propose to codify several clarifying interpretations of the definition that recognize and build upon the operational and structural distinctions between ABS and non-ABS transactions. In many cases, through the process of codifying these interpretations, we also are proposing to expand many of the existing interpretations to allow additional asset types and transaction features to be considered an “asset-backed security,” including for purposes of shelf registration if the asset-backed securities meet the additional criteria for registration on Form S-3, such as the investment grade requirement.
Our proposed definition and interpretations are intended to establish parameters for the types of securities that are appropriate for our proposed alternative regulatory regime for asset-backed securities, including, for securities that meet the additional criteria for Form S-3 registration, delayed shelf registration and the use of certain written communications. The proposals would not mean or imply that public offerings of securities outside of these parameters may not be registered with the Commission, but only that the disclosure and other requirements in the regime for asset-backed securities are not designed for those securities. The proposals would mean that such securities would need to rely on non-ABS form eligibility for registration, including shelf registration. Additional disclosures are currently required for such securities under our existing disclosure regime.
Under our proposal, the basic definition of “asset-backed security” would be “a security that is primarily serviced by the cash flows of a discrete pool of receivables or other financial assets, either fixed or revolving, that by their terms convert into cash within a finite time period, plus any rights or other assets designed to assure the servicing or timely distributions of proceeds to the securityholders; provided that in the case of financial assets that are leases, those assets may convert to cash partially by the cash proceeds from the disposition of the physical property underlying such leases.”
The proposed definition of “asset-backed security” includes the same basic concept of a discrete pool of financial assets that by their terms convert into cash within a finite time period. We believe this does not include so-called “synthetic” securitizations.
Another example of a synthetic exposure would be a transaction where the asset pool consists of securities coupled with a swap or other derivative under which payments are made based on the value of an equity or commodity or other index such that the payments on the security comprise or include payments based on the performance of the external index and not by the performance of the actual securities in the pool. Our view that securities resulting from synthetic securitizations are not ABS within the proposed definition is not altered by the fact that payments on the swap or other derivative based on the value of assets or indices not related
Synthetic securitization transactions differ from ABS transactions where swaps or other derivatives are used either to reduce or alter risk resulting from assets contained in the pool held by the issuer, or to provide credit enhancement related to assets in the pool. For example, the existence of an interest rate or currency swap covering either or both of the principal or interest payments on assets in the pool held by the issuer are designed to reduce or alter risk resulting from those assets and fall within the definition of asset-backed security. The return on the ABS are still based primarily on the performance of the financial assets in the pool.
As another example of a swap or other derivative permissible in an ABS transaction, a credit derivative such as a credit default swap could be used to provide viable credit enhancement for asset-backed securities. For example, a credit default swap may be used to reference assets actually in the asset pool, which would be analogous to buying protection against losses on the pool asset. The issuing entity would pay premiums to the counterparty (as opposed to the counterparty paying the premiums to the issuing entity). If a credit event occurred with respect to the referenced pool asset, the counterparty would be required to make settlement payments regarding the pool asset or purchase the asset to provide recovery against losses.
• We request comment on our proposed definition. Are any further modifications to the definition necessary? If so, what modifications should be made and why?
The first set of interpretations we propose to codify relates to the nature of the issuing entity in whose name the asset-backed securities are issued. In this regard, we believe that two interpretations always have been implied. We propose to codify both as additional conditions to the definition of “asset-backed security.”
The first condition is that neither the depositor nor the issuing entity is an investment company under the Investment Company Act, nor will either become one as a result of the asset-backed securities transaction. If either was the case, we believe the separate regulatory regime for investment companies should be followed in lieu of our proposals for asset-backed securities.
The second condition is that the issuing entity must be passive and its activities restricted to the asset-backed securities transaction. In particular, the activities of the issuing entity must be limited to passively owning or holding the pool of assets, issuing the asset-backed securities supported or serviced by those assets, and other activities reasonably incidental thereto.
• We request comment on the proposed conditions regarding the nature of the issuing entity. Is the proposed condition on the passive and restricted nature of the issuing entity appropriate? Is any additional specificity or clarification needed for the condition? Should there be any exceptions to the condition? If so, what would they be and how would they be consistent with the notion of an “asset-backed security?”
• Should there be any additional conditions on the nature of the issuing entity?
In 1997, Commission staff issued a no-action letter clarifying that an asset pool having total delinquencies of up to 20% at the time of the proposed offering may still be considered an “asset-backed security.”
We propose to codify these interpretations. First, we propose that no non-performing assets may be part of the original asset pool at the time of issuance of the asset-backed securities.
• The pool asset meets the requirements in the transaction agreements for the asset-backed securities for when a pool asset should be charged-off; or
• The pool asset meets the charge-off policies of the sponsor.
We believe this definition provides flexibility for different asset classes while still ensuring that no assets are included in the pool that would otherwise be considered to be non-performing and thus charged-off under
We also propose to codify a delinquency concentration limit in a manner consistent with the staff no-action letter. However, as we are proposing a general definition of “asset-backed security” regardless of eligibility for shelf registration, we propose two separate delinquency concentration limits. For the general definition (
With regard to determining delinquency, one potential area of concern is improper re-aging or restructuring of delinquent accounts, such as declaring an asset with multiple past-due payments as current even if only the last payment was made. Improper re-aging or recharacterization of delinquent accounts cannot be employed for purposes of satisfying delinquency concentration limits. We propose to clarify in the definition of “delinquent” that a pool asset that was more than one payment past due could not be characterized as not delinquent if only partial payment on the total past due amount had been made, unless the obligor had contractually agreed to restructure the obligation, such as part of a workout plan.
• We request comment on the codification of these existing interpretations. Is there a reason to re-evaluate these interpretations? In particular, should there still be an absolute bar on non-performing assets? We also request comment on the proposed delinquency concentration limits. The 50% non-shelf limit is designed to help assure that even those asset-backed securities that do not qualify for shelf registration are appropriately subject to our proposed ABS disclosure and reporting regime. Should either limit be higher or lower? Should these tests be conducted at any time other than issuance of the asset-backed securities?
• We request comment on our proposed definitions of “non-performing” and “delinquent.” Should the definition of non-performing be tied to the charge-off policies of both the transaction documents and the sponsor? Is it necessary to require disclosure of the sponsor's charge-off policies? Is the proposed clarification regarding re-aging appropriate? Should there be a specific delinquency date for when an asset is non-performing? What would that date be (
The one change we propose to the basic definition of “asset-backed security” is to expand the definition to include securitizations backed by leases where part of the cash flows backing the securities is to come from the disposal of the residual asset underlying the lease (
Lease-backed ABS have grown into a common and recognized segment of the overall ABS market.
The higher the percentage of cash flows that are to come from residual values, the more important these other factors become and the less the transaction resembles a traditional securitization of financial assets for which our regime for asset-backed securities is designed. We propose to address this concern in two ways. First, we propose additional disclosures, discussed more fully in Section III.B., on how residual values were estimated and derived, statistical information on historical realization rates and disclosure of the manner and process in which residual values will be realized, including disclosure about the entity that will convert the residual values into cash. Second, similar to existing practice regarding delinquencies, we propose limits on the percentage of the cash flow anticipated to come from residual values in order to be considered an “asset-backed security.”
In proposing residual value limits, we recognize that market practice regarding lease-backed securitizations vary on the typical percentage of cash flows that are expected to come from residual values. For example, auto lease securitizations often have higher residual value percentages than equipment-backed securitizations due to the higher resale values that often exist between automobiles and other equipment. Accordingly, after reviewing residual value percentages for typical lease-backed securitizations, we propose that for the general definition of “asset-backed security,” the portion of the cash
• For automobile leases, 60% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities;
• For all other leases, 50% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities.
In addition, we propose a more stringent limitation for cash flow from residual values for offerings of securities backed by leases other than automobile leases that may be registered on Form S-3 and thus eligible for shelf registration. For Form S-3 eligibility, we propose that for leases other than automobile leases, the portion of the cash flow anticipated to come from residual values may not constitute 20% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities, which we believe is consistent with market practice and the types of offerings that would be appropriate for shelf eligibility. We believe these proposals will expand eligibility of lease-backed transactions for shelf registration and appropriately permit lease-backed transactions under our proposed rules while continuing to apply the basic principles underlying the definition of “asset-backed security.”
• Should ABS backed in part by cash flows from residual values be included in the definition of asset-backed security? Does the proposed proviso to the definition of asset-backed security capture the types of lease transactions that include residual values? Should there be any additional requirements for such securitizations apart from those proposed?
• We request comment on our proposed limits on the cash flows that are anticipated to come from residual values. Should there be such limits? What alternatives could be used in lieu of limits to address the concerns identified? Is there a disclosure-based solution that would preclude the need for such limits? Are there additional concerns we have not identified? Should there be different limits for automobile leases versus other leases? Should there be different limits for non-automobile leases for shelf registration eligibility? Should there be such limits for automobile leases? Should any of the proposed limits be higher or lower? Should the limits be based on a different amount (
The last set of interpretations we propose to codify relates to exceptions to the requirement in the definition of “asset-backed security” that the asset pool be “discrete.” The existence of the “discrete” requirement is to prevent a level of portfolio management that is not contemplated by the definition of “asset-backed security” or consistent with this registration and reporting regime. In addition, the lack of a “discrete” requirement would make it difficult for an investor to make an informed investment decision when the composition of the pool is unknown or could change over time.
However, ever since the original definition of “asset-backed security” was adopted, there has been some confusion over the meaning of the term “discrete” in the definition, particularly with respect to language in the definition that specifies the asset pool must be a “discrete pool of receivables or other financial assets, either fixed or revolving.” The 1992 Release specified that the phrase “fixed or revolving” was added “in order to make clear that the definition covers 'revolving' credit arrangements, such as credit card and short-term trade receivables, home equity loans and automotive dealer floorplan financings, where account or loan balances revolve due to periodic payments, charge-offs and closings of the receivables.”
Nevertheless, in response to market developments, the staff has allowed certain exceptions, with limits, to the discrete pool requirement. These exceptions relate to master trusts, prefunding periods and revolving periods. In a master trust, the ABS transaction contemplates adding additional pool assets in connection with future issuances of asset-backed securities backed by the same, but expanded, asset pool. Pre-existing securities also would therefore be backed by the same expanded asset pool. In a prefunding period, a limited portion of the proceeds of the offering is set aside for the future acquisition of additional pool assets within a specified period of time after the issuance of the asset-backed securities. In a revolving period, a limited amount of cash flows from the asset pool may be recycled for a specified period to acquire new pool assets instead of being applied to payments on the asset-backed securities.
The staff's interpretive history in this area has resulted in limits on which asset classes may use these structures and still be considered an “asset-backed security.”
As in the case of our proposals for lease-backed ABS that involve residual values, we believe the concern relating to these structures can be appropriately addressed through disclosure, both at the time of issuance of the asset-backed securities as well as on an ongoing basis through disclosure of how the asset pool is materially changing.
Consistent with current staff practice, we also are proposing limits on the amount and duration of prefunding and certain revolving periods to limit the amount of changes to the asset pool, while still allowing flexibility to accommodate market demands. These limits are designed to establish parameters for the types of securities that should be subject to the ABS regulatory regime. As with lease-backed ABS, we believe these proposals will expand eligibility of these structures while continuing to apply the basic principles underlying the definition of “asset-backed security.”
Our proposal would allow master trust structures to meet the definition of “asset-backed security” without any pre-determined limits.
For revolving periods, our proposals would recognize the nature of the asset being securitized (
• Should asset-backed securities transactions be allowed to have master trusts, prefunding periods and revolving periods? Are there some asset types where the inclusion of such features should disqualify any issued securities from being considered an “asset-backed security?” Should one or more of the features (
• Should there be any pre-determined limits on master trust structures? Are the proposed limits appropriate for the use of prefunding or revolving periods? Should there be such limits? What alternatives could be used in lieu of limits? Should there be different limits for shelf registration eligibility? Should there be different limits based on the nature of the asset (fixed or revolving)? Should there be a limitation that the assets that may be acquired in a prefunding or revolving period are of the same character as the original pool? Should any of the proposed limits be higher or lower? Should the limits be based on a different amount? Should the length of prefunding or revolving periods be longer or shorter than one year? If possible, please provide supporting data in relation to current market practices. Please see Section III.B.4. for comment requested regarding disclosure related to these features.
We do not propose a new registration statement form for offerings of asset-backed securities. We preliminarily believe that the existing form structure is sufficient, provided there are appropriate instructions in the applicable forms as to their use for ABS offerings. We do propose to limit the registration of asset-backed securities offerings to two forms: Form S-1 or Form S-3.
While Form S-3 currently specifies eligibility for ABS offerings, neither it nor any other form clarifies how the form is to be prepared for such an offering. Therefore, we propose separate general instructions for both Form S-1 and Form S-3 to specify use for ABS offerings.
Proposed General Instruction VI. to Form S-1 would clarify how that form is to be prepared for an ABS offering. In particular, the proposed instruction would clarify who is to sign the registration statement (discussed more fully in Section III.A.3.d.) as well as the menu of required disclosure items. As to the latter, the proposed instruction would identify the existing items in the form that may be omitted as well as substitute core disclosure items from proposed Regulation AB that would be required. As discussed in Section III.B., proposed Items 1102-1118 of Regulation AB would represent the basic disclosure package for registered ABS offerings. Any other applicable items specified in Form S-1, such as the description of the securities and the offering, would continue to be required.
Proposed General Instruction V. to Form S-3 would perform a similar function for that form. Unlike current practice on Form S-1, non-ABS offerings on Form S-3 rely predominately on incorporation by reference of Exchange Act reports for disclosure unrelated to the offering. As a result, existing Form S-3 does not set forth a detailed menu of disclosure items apart from disclosure about the offering. However, because a reporting history is not required for ABS for Form S-3 eligibility, investment grade ABS offerings registered on that form often must present all of their disclosure in the base prospectus and prospectus supplement in lieu of incorporating information by reference. Accordingly, the proposed Form S-3 instruction for ABS does not specify any existing items that may be omitted, but rather simply specifies the addition of the same basic disclosure package from Regulation AB. The other disclosure items required by Form S-3, such as the description of the securities and the offering, would continue to be required as applicable. Therefore, as shown in the following table, the effect of the proposed general instruction is to add the basic disclosure package of proposed Items 1102-1118 of Regulation AB:
• We request comment on our proposal to require ABS offerings to be registered on either Form S-1 or Form S-3. Is there a reason to continue to provide access to another form type? Would there be any reason to provide a separate form type specifically for ABS?
• We request comment on the proposed general instructions to Forms S-1 and S-3. Is the proposed menu of disclosure items appropriate? Should any additional items be included or omitted? For example, should information required by Item 305 of Regulation S-K regarding quantitative and qualitative disclosures about market risk be included? Should disclosure be required of any changes in or disagreements with accountants used in prior transactions by the sponsor or depositor involving the same asset class regarding attestations of assessments of compliance with servicing criteria? If so, should the disclosure be similar to that required by existing Item 304 of Regulation S-K? Are there any additional instructions that should be included for ABS offerings?
In proposing to specify the menu of disclosure items applicable for ABS offerings eligible for Form S-3, and thus shelf registration, we do not intend to change the current practice or ability to present such disclosure in a separate base prospectus and prospectus supplement, a practice also available for non-ABS offerings.
As referenced in the 1992 Release, the type or category of asset to be securitized must be fully described in the registration statement at the time of effectiveness. The structural features contemplated also should be disclosed. In addition, risks associated with changes in interest rates or prepayment levels should be fully disclosed. The various scenarios under which payments on the asset-backed securities could be impaired also should be discussed, as well as identification of the types or categories of securities that may be offered, such as interest-weighted or principal-weighted classes (including IO or PO securities), planned amortization or companion classes or residual or subordinated interests.
In presenting disclosure in base prospectuses and prospectus supplements, registrants are reminded that, as is the case today for all shelf offerings, the base prospectus must fully describe the types of offerings contemplated by the registration statement. A takedown off of a shelf that involves assets, structural features, credit enhancement or other features that were not described as contemplated in the base prospectus will usually require either a new registration statement (
We do propose to specify in the proposed general instruction to Form S-3 the existing requirement to prepare separate base prospectuses and forms of prospectus supplements when multiple asset types may be securitized. As stated in the 1992 Release, a registration statement may not merely identify several alternative types of assets that may be securitized. A separate base prospectus and form of prospectus supplement must be presented for each asset class that may be securitized in a discrete pool in a takedown under that registration statement. Any difference in country of origin or country of property securing the pool assets also would require a separate base prospectus and form of prospectus supplement for each country.
An additional issue that often results in staff comment is the inclusion of language in registration statements that investors should rely on the information in the prospectus supplement if the terms of a particular series of securities conflict or vary between the base prospectus and the accompanying prospectus supplement. Disclosure in prospectus supplements regarding the transaction may enhance disclosure in the base prospectus regarding contemplated transactions, but should not contradict it. Similarly, including language to the effect of “Except as otherwise provided in the prospectus supplement” will permit some supplemental or modified terms of transactions, but should not be construed as creating the ability to add asset types or structural features in a takedown that were not otherwise contemplated by and described in the base prospectus.
• Is any additional guidance or clarification necessary regarding the presentation of base prospectus and prospectus supplement disclosure? Should we be more specific, including by rule if necessary, on what information must be in the base prospectus as opposed to the prospectus supplement? If so, how should disclosures be delineated? Are there additional ways to cut down on unnecessary volume or detail in base prospectuses?
• Is the proposed specification that a separate base prospectus and form of prospectus supplement must be presented for each asset class and country of origin appropriate? If not, how would the staff ensure the base prospectus provides clear disclosure that did not confuse investors?
• Does the process of a base prospectus and a later prospectus supplement ensure that investors have adequate information at the time of their investment decision? Do the provisions permitting additional written communications in shelf ABS offerings, discussed in Section III.C., permit adequate information to be provided to investors in that time?
We propose to maintain the existing requirement for ABS Form S-3 eligibility that the asset-backed securities must be rated “investment grade” by a nationally recognized statistical rating organization, or NRSRO, at the time of offer and sale to the public.
As discussed previously, we propose four additional conditions regarding the types of asset-backed securities that would qualify for Form S-3 eligibility. First, we propose to codify the current position that delinquent assets may not constitute 20% or more, as measured by dollar volume, of the original asset pool. Second, for securities backed by leases other than automobile leases, the portion of the cash flow to repay the securities anticipated to come from the residual value of the physical property underlying the leases may not constitute 20% or more, as measured by dollar volume, of the original asset pool. Third, the offering may not contemplate a prefunding account in excess of 25% of the proceeds of the offering or that lasts for more than one year. Finally, with respect to fixed financial assets that do not by their nature revolve, the amount of additional assets to be acquired in a revolving period may not exceed 25% of the proceeds of the offering or last for more than one year.
Consistent with existing requirements, we do not propose to add a reporting history requirement for ABS Form S-3 eligibility. However, we do propose codifying that reporting obligations regarding other asset-backed securities transactions established by the sponsor and the depositor have been complied with for the prior 12 months for continued Form S-3 eligibility for new transactions.
• Should we continue to require an investment grade requirement for Form S-3 eligibility? Are any modifications to that requirement necessary? Should alternatives be considered, such as investor sophistication, minimum denomination or experience criteria?
• Are there any additional conditions that should be required to qualify for Form S-3 eligibility? Are the proposed conditions appropriate?
• Should our proposed clarification of the impact of prior reporting obligations be limited to prior transactions by the same sponsor and depositor involving the same asset class? If so, why?
We propose to clarify which entity is considered the “issuer” under the Securities Act with respect to an offering of asset-backed securities. The Securities Act defines the term “issuer” in part to include every person who issues or proposes to issue any security, except that with respect to certificates of deposit, voting-trust certificates, or collateral trust certificates, or with respect to certificates of interest or shares in an unincorporated investment trust not having a board of directors (or persons performing similar functions), the term issuer means the person or persons performing the acts and assuming the duties of depositor or manager pursuant to the provision of the trust or other agreement or instrument under which the securities are issued.
We propose to clarify that the depositor for the asset-backed securities, acting solely in its capacity as depositor to the issuing entity, is the “issuer” for purposes of the asset-backed securities of that issuing entity.
By clarifying that the person acting as the depositor in its capacity as depositor to the issuing entity is a different “issuer” from that person in respect of its own securities, any applicable exemptions from registration that person may have with respect to its own securities would not be applicable to the asset-backed securities.
Consistent with this proposal, we propose to codify in the general instructions for Forms S-1 and S-3 that the registration statement would need to be signed, as is currently the case, by the depositor, the depositor's principal executive officer or officers, principal financial officer and controller or principal accounting officer, and by at least a majority of the depositor's board of directors or persons performing similar functions. We would no longer require the issuing entity to sign if formed prior to effectiveness as such a requirement would be superfluous.
• We request comment on our proposed rule clarifying the “issuer” for an asset-backed security. In addition to, or in lieu of the depositor, should another entity be considered the “issuer,” such as the sponsor, the servicer, the trustee or the issuing entity? What would be the bases for designating such entity or entities as the “issuer?”
• Is there still a reason to require the issuing entity to sign the registration statement if formed prior to effectiveness? If so, who should sign on behalf of the issuing entity? Should any other party to the transaction be required to sign the registration statement?
• Our proposal regarding which individuals of the depositor must sign is consistent with requirements for all registration statements. Should they be modified for ABS? If so, how?
While not as prevalent as in the U.S., securitization by foreign issuers has been developing rapidly.
As a result of these concerns, the staff currently requires additional conditions for the processing of Form S-3 registration statements involving foreign ABS offerings. These conditions may include first requiring one or more registered offerings on a non-shelf basis on Form S-1 or S-11 that is fully reviewed by the staff, as well as other steps or conditions to help assure that novel or unique questions can be addressed by the staff. As experience with a particular issuer, asset type and laws related to asset-backed issues in the home country increases, the requirements decrease. Nevertheless, while designed to address the concerns noted above, these additional steps and conditions can result in delays and possible impediments to access to the U.S. public capital markets through shelf registration for foreign ABS, even if the other requirements for shelf registration, such as an investment grade rating, can be met.
To address the foreign and legal and regulatory issues while appropriately treating foreign ABS transactions, we are not proposing a different disclosure or regulatory regime for foreign ABS, with the one exception discussed below. Foreign ABS would be registered on the same Securities Act registration forms as domestic ABS, and with the exception of the disclosure discussed below, foreign ABS would be subject to the same disclosure requirements in proposed Regulation AB. Foreign ABS offerings registered on Form S-3 also would be eligible for our proposals regarding the use of ABS informational and computational material and ABS research reports discussed in Section III.C.
Like several of our other proposals, we believe that many of the concerns relating to foreign ABS can be appropriately addressed through adequate disclosure. As such, we are proposing an additional general instruction in Regulation AB focused on foreign ABS that if asset-backed securities are issued by a foreign issuer, are backed by foreign assets, or are affected by credit enhancement or other support provided by a foreign entity, then in providing the disclosures required, the filing also must describe any pertinent governmental legal or regulatory or administrative matters and any pertinent tax matters, exchange controls, currency restrictions or other economic, fiscal, monetary or potential factors that could materially affect payments on the performance of, or other matters relating to, the assets contained in the pool or the asset-backed securities.
We would expect that at the time of filing, the registration statement would include fully developed disclosure clearly articulating the material differences and effects of the home country legal and regulatory regime. In this regard, we also encourage pre-filing conferences with the staff where appropriate to discuss the home country legal and regulatory environment, the proposed transaction and the relevant disclosures that would be required.
We also do not propose a different Exchange Act reporting structure for foreign ABS. We believe periodic disclosure of distribution and pool performance information, reports regarding servicing compliance (including an attestation report on an assessment of compliance with servicing criteria) and current disclosure of significant events would be equally relevant and applicable for foreign ABS as they are for domestic ABS. Thus, like domestic ABS, foreign ABS would be required to report on Forms 10-D, 10-K and 8-K. In addition, ongoing disclosures would be required in Forms 10-D and 10-K regarding any material impact caused by foreign legal and regulatory developments during the period covered by the report which had not been previously described.
• We request comment on the application of our proposals to foreign ABS. Is there a need to create different regulatory requirements for foreign ABS? If so, what accommodations should be made and why? In particular, is there any reason why foreign ABS should be subject to differing ongoing Exchange Act reporting obligations than domestic ABS? We request comment particularly from the point of views of potential issuers of foreign ABS who would prepare this information as well as potential investors in foreign ABS regarding what information would be material to their investing decisions.
• Should our proposed general instruction regarding foreign ABS disclosure be more specific? Are there any particular categories of disclosure that should be delineated?
• Are there any investor protection concerns raised by the approach of the proposals to foreign ABS? Should there be any additional conditions for Form S-3 eligibility for foreign ABS? For example, should there be a requirement of one or more previous registered offerings on a non-shelf basis? Should certain representations or undertakings be required, such as that subsequent offerings will be substantially similar to prior transactions? Should there be any minimum denomination requirements, investor sophistication or other suitability requirements regarding the types of investors that may invest? Should we have different standards regarding the type of pool assets (
• Are there structures commonly used in foreign ABS transactions that would be restricted from the definition of “asset-backed security” under our proposals? Would this limit the ability of these transactions to register public offerings in the U.S.? Are there any foreign structures that would be contemplated by our proposals but should not be considered appropriate for an “asset-backed security?”
Through a series of staff no-action letters, in connection with offerings of asset-backed securities eligible for registration on Form S-3, broker-dealers are not required under Exchange Act Rule 15c2-8(b) to deliver a copy of a preliminary prospectus to any person who is expected to receive a confirmation of sale at least 48 hours prior to the sending of such confirmation.
Given our more than eight years of experience with the staff no-action letters, we are proposing to codify the position as a formal exclusion from Exchange Act Rule 15c2-8(b).
Although we do propose to codify the exclusion from Rule 15c2-8(b) for Form S-3 ABS, we are concerned with statements from investors in previous communications to the staff that a combination of factors, including the introduction of shelf registration for ABS, relief from Rule 15c2-8(b) and the ability to use term sheets and computational material, has reduced the amount of time and information investors have to make informed investment decisions.
• Should we codify an exclusion from the preliminary prospectus delivery requirements of Rule 15c2-8(b) for Form S-3 ABS? Do investors have enough time and information before the offering to make fully informed investment decisions? What alternatives might exist to Rule 15c2-8(b) to address this concern?
• What would be the costs and benefits of not codifying the staff position? Should there be any additional conditions to the exclusion? Should the proposed exclusion not apply to ABS targeted to non-institutional investors? For example, should preliminary prospectus delivery be required if the ABS is expected to have low minimum investment denominations (
• Is the proposed limitation to Form S-3 ABS still appropriate? If not, under what circumstances should the proposal be extended to Form S-1 ABS? In particular, are there any additional conditions that should be required for extending the exclusion to Form S-1 ABS?
The 1992 Release included a statement that the definition of “asset-backed security” does not encompass securities issued in structured financings for one obligor or group of related obligors. It also stated that asset-backed offerings with a significant asset concentration—that is, a significant concentration of obligations of one obligor or related obligors—may involve one or more co-issuers under Securities Act Rule 140.
“A person, the chief part of whose business consists of the purchase of the securities of one issuer, or of two or more affiliated issuers, and the sale of its own securities, * * * to furnish the proceeds with which to acquire the securities of such issuer or affiliated issuers, is to be regarded as engaged in the distribution of the securities of such issuer or affiliated issuers within the meaning of section 2(a)(11) of the [Securities] Act.”
In considering whether the distribution of the underlying assets must be registered in addition to the distribution of the ABS, the basic proposition is that where the underlying securities themselves are not exempt from registration, the depositor must be free to publicly resell the underlying securities without registration. Otherwise, their distribution must be registered. If registration of the underlying securities distribution is required, certain conditions and disclosures have developed through the staff comment process and industry practice regarding the method and manner of such registration. These conditions are designed to provide clear disclosure to investors of the different distributions involved, the relationships between the distributions and investor rights with respect to each distribution.
The nature of the distribution of the underlying securities is the important factor in determining whether concurrent registration is required, not necessarily their concentration in the pool. For example, if a $100 million asset pool included $5 million of securities that were not freely resalable by the depositor without registration, then the distribution of those $5 million of securities through the ABS distribution also would need to be registered, even though such securities only constituted 5% of the asset pool. Similarly, if a depositor obtained $100 million of freely resalable securities of one obligor from the secondary market, the offering of ABS backed by those securities would not require concurrent registration of the distribution of the underlying securities, even though one obligor represented 100% of the pool, because the securities were not purchased from the issuer or underwriter but rather were purchased in the secondary market. In that case, additional disclosure would be required regarding the concentrated obligor, including financial information about the obligor, but the concentration itself would not trigger a separate registration requirement.
To provide further clarification and regulatory certainty regarding this topic, we propose to codify in substantial part existing staff positions, as well as to streamline the conditions that would be required if the distribution of the underlying securities also must be registered.
Under our proposal, in an ABS offering where the asset pool includes securities of another issuer, unless the underlying securities are exempt from registration under the Securities Act, the offering of the underlying securities itself must be registered as a primary offering of such securities, unless all of the following are true:
• The depositor would be free to publicly resell the underlying securities without registration under the Act;
• Neither the issuer of the underlying securities nor any of its affiliates has a direct or indirect agreement, arrangement, relationship or understanding, written or otherwise, relating to the underlying securities and the asset-backed securities transaction; and
• Neither the issuer of the underlying securities nor any of its affiliates is an affiliate of the sponsor, depositor, issuing entity or underwriter of the asset-backed securities transaction.
The first condition states the basic proposition that the securities of the underlying issuer must be freely resalable without registration. Consistent with existing staff practice, we propose to include two examples to clarify this condition. First, the underlying securities may not include restricted securities (
We also propose to codify a staff interpretive position where the ABS offering involves a sponsor, depositor or underwriter that was an underwriter or an affiliate of an underwriter in a registered offering of the underlying securities.
The second and third conditions clarify that if the issuer of the underlying securities is engaged in the distribution of its securities through the asset-backed securities or is affiliated with the sponsor, depositor, issuing entity or any underwriter for the ABS offering, then registration of the underlying distribution would be required along with registration of the ABS offering.
If any of the three conditions was not met, the offering of the relevant underlying securities itself would be required to be separately registered as a primary offering of such securities. Such registration would need to be conducted in accordance with the following proposed conditions:
• If the ABS offering is registered on Form S-3, the offering of the underlying securities itself must be eligible to be registered under Form S-3 or F-3 as a primary offering of such securities;
• The plan of distribution in the registration statement for the offering of the underlying securities contemplates this type of distribution at the time of the commencement of the ABS offering;
• The prospectus for the ABS offering describes the plan of distribution for both the underlying securities and the asset-backed securities;
• The prospectus relating to the offering of the underlying securities is delivered simultaneously with delivery of the prospectus relating to the ABS offering, and the prospectus for the ABS offering includes disclosure that the prospectus for the offering of the underlying securities will be delivered with it or is combined with it;
• The prospectus for the ABS offering identifies the issuing entity, depositor, sponsor and each underwriter for the ABS offering as an underwriter for the offering of the underlying securities;
• Neither prospectus disclaims or limits responsibility by the issuing entity, sponsor, depositor, trustee or any underwriter for information regarding the underlying securities; and
• If the ABS offering and the underlying securities offering are not made on a firm commitment basis, the issuing entity or the underwriters for the ABS offering must distribute a preliminary prospectus for both the underlying securities offering and the ABS offering that identifies the issuer of the underlying securities and the expected amount of the issuer's underlying securities that is to be included in the asset pool to any person who is expected to receive a confirmation of sale of the ABS at least 48 hours prior to sending such confirmation.
Some ABS transactions are structured such that the asset pool consists of one or more financial assets that represent an interest in or the right to the payments or cash flows of another asset pool solely in order to facilitate the asset-backed issuance and not in order to re-securitize other securities. For example, some older credit card master trust structures have added an “issuance trust” structure to provide additional flexibility in the types of ABS that may be offered. An issuance trust generally receives a collateral certificate from the master trust representing an interest in the master trust asset pool. The master trust often may have issued its own ABS backed by the same pool. The issuance trust then issues its own ABS backed by the collateral certificate, and hence indirectly by the whole master trust pool.
Similarly, in some auto lease transactions, the auto leases and car titles often are originated in the name of a separate trust, sometimes called an “origination” or “titling” trust, to avoid administrative expenses in retitling the physical property underlying the leases. The origination trust will issue to the issuing entity for the ABS a certificate, often called a “special unit of beneficial interest” or SUBI, representing a beneficial interest in a pool of leases and automobiles in the origination trust which is to constitute the asset pool. The ABS issuing entity will issue ABS backed by the SUBI certificate, and hence indirectly by the assets underlying the SUBI.
In each instance, these structures are solely designed to facilitate the ABS transaction. The ABS will be primarily serviced by cash flows from the
While these certificates do trigger additional registration obligations, they do not raise the same issues discussed above regarding the resecuritization of other underlying securities because they are merely facilitating structural devices.
• Both the issuing entity for the asset-backed securities and the entity issuing the underlying financial asset were established under the direction of the same sponsor or depositor;
• The financial asset was created solely to satisfy legal requirements or otherwise facilitate the structuring of the ABS transaction;
• The financial asset was not part of a scheme to avoid registration or our resecuritization proposals; and
• The financial asset was held by the issuing entity and was a part of the asset pool for the asset-backed securities.
• We request comment on the list of conditions that clarify when the distribution of underlying securities in the asset pool needs to be separately registered. Are any modifications or clarifications necessary? Should we address further examples?
• We also request comment on the proposed conditions codifying the manner of registration of the underlying securities distribution. Are any modifications or clarifications necessary? Should any of these conditions no longer be required? Should any additional conditions be added?
• Should transactions that involve features such as issuance trusts or SUBIs be excluded from the proposed disclosure and delivery conditions? Should we specify more particularly the manner in which they should be registered? Does our proposed list of conditions adequately identify the relevant structures while excluding the resecuritization of other underlying securities? Are any other exceptions necessary?
No disclosure items currently exist that are specifically tailored to asset-backed securities. While some disclosure items in Regulation S-K are relevant, such as a description of the security, most items do not elicit the most useful disclosure for ABS investors. There is generally no business or management to describe; rather, information about the pool assets, servicing, transaction structure, flow of funds and enhancements is more relevant. Analysis regarding the characteristics of the pool assets is necessary to determine the timing and amount of expected payments on the assets and thus payments on the ABS. In addition, the legal and often complex flow of funds of the transaction and the impact of any credit enhancement or other support must be analyzed. Through the staff comment process and industry practice, informal disclosure practices have developed. These practices, however, may not be fully transparent to issuers and investors.
We propose a new principles-based set of disclosure items in one central location in a subpart of Regulation S-K, called Regulation AB.
We believe a principles-based approach would provide the best framework for disclosure in the context of asset-backed securities. In addition, due to differences between asset classes, we believe it would be impractical to provide an exhaustive list of disclosure items required for each asset class. Not only do we believe this approach would be impractical due to the many existing asset classes that are securitized today, it would not provide any effective guidance with respect to new asset classes that may be securitized in the future. Due to the dynamic nature of the ABS market, any such list would likely become outdated.
Under our proposed principles-based approach, we identify the disclosure concept or objective required and provide one or more illustrative examples. Application of the particular concept or objective would need to be tailored in preparing and presenting the disclosure to the information material to the particular transaction and asset-type involved. The balance we strive to achieve through this approach is to provide enough clarity so that the disclosure concept or objective is understood and can be applied on a consistent basis, while not providing too much detail that could obscure or override the concept or objective. Of course, in some instances we believe we must and therefore do propose certain disclosure items with greater specificity. Further, we propose to codify several existing percentage tests that provide guidance as to when particular disclosure is required, particularly regarding concentrated obligors or significant credit enhancement or other support. We believe these proposed breakpoints provide consistency, comparability and clarity.
The structure of Regulation AB would be as follows:
• Item 1100 would set forth items of general applicability for the whole subpart, such as guidance regarding the presentation of delinquency and loss information when it is required, alternative methods for presenting third party financial information (discussed further in Section III.B.9.) and guidance regarding disclosures related to foreign ABS (previously discussed in Section III.A.4.).
• Item 1101 would set forth definitions applicable to asset-backed securities.
• Items 1102—1118 would constitute the basic disclosure required for Securities Act registration statements for ABS offerings. In addition, several of the items would be required on an ongoing basis in Exchange Act reports, such as updated financial information regarding certain third parties and disclosure regarding legal proceedings.
• Item 1119 would form the basis for disclosure required in distribution reports on proposed Form 10-D regarding cash flows and performance of the asset pool and the allocation of cash flows and distribution of payments on the ABS. This item is discussed more fully in Section III.D.4.
• Items 1120 and 1121 would address two long-standing requirements for the Form 10-K report based on market practice and the modified reporting system. Item 1120 would specify the form of the proposed report on compliance with servicing criteria based on an assessment by the depositor or servicer. It also would require filing of the registered public accounting firm's attestation report on
Many of our proposed disclosure items are based on the market-driven disclosures that appear in filings today. In addition, our consideration of the proposed disclosure items was informed by the staff review process as well as the staff's participation in the 2003 MBS Disclosure Report. However, we are concerned that disclosure practice without a previously defined set of universal disclosure standards has resulted in the inclusion of undue boilerplate language in ABS filings, particularly prospectuses and registration statements, and a disproportionate emphasis on legal recitations of transaction terms. Further, as disclosure practice may have been driven primarily by the staff review process and by observing and conforming to filings for other transactions, disclosures may have been included from other filings or retained from prior filings without necessarily considering their applicability or continued applicability with respect to the transaction in question.
However, the cumulative effect of these practices is to diminish in some cases the usefulness of the document through the accumulation of unnecessary detail, duplicative or uninformative disclosure that obscures material information and legalistic recitations of transaction terms. Efforts to revise disclosure documents in response to our “plain English” initiative have certainly helped by demonstrating that even the most complex structures can be described clearly and accurately without resorting to overly legalistic presentations.
Therefore, in connection with our proposed codification of a universal set of disclosure items, we seek a reevaluation by transaction participants of the manner and content of presented disclosure, including the elimination of unnecessary boilerplate and immaterial legal recitations of terms. Transaction participants should view this rulemaking initiative as an opportunity to evaluate whether there is information that has been included in registration statements and prospectuses that is not required, not material and not useful to investors, and therefore should be reduced or omitted. Transaction participants should similarly consider whether disclosure should be revised so that its relevance to the transaction in question is more apparent and is presented in a manner that is more focused on providing clear and understandable disclosure for investors. Transaction participants also should continue to be mindful of the plain English disclosure principles to avoid legalistic or overly complex presentations and recitations that make the substance of the disclosure difficult to understand. Transaction participants should continue to focus on the use of tabular presentations, flow charts and other design elements that aid understanding and analysis.
In addition to the manner and presentation of disclosures, we also are concerned that existing disclosure standards may not adequately capture certain categories of information that may be material to an asset-backed securities transaction, such as the background, experience, performance and roles of various transaction parties, including the sponsor, the servicer and the trustee. While asset-backed securities are not intended to be direct obligations of these entities, it seems apparent from recent market events that their roles often can be as important to the performance of an ABS transaction as the transaction structure or its governing documents.
Consistent with current practice, we do not propose to require audited financial statements for the issuing entity in either Securities Act or Exchange Act filings. It does not appear that audited financial statements prepared in accordance with generally accepted accounting principles would provide material information to investors.
• We request comment on our proposed principles-based approach for Regulation AB. Should we provide detailed disclosure guides by asset type instead? In evaluating the proposed items in Regulation AB, do the items provide sufficient clarity in identifying the disclosure concept? Should we be more specific (or less specific) regarding any particular items?
• We also request comment on methods to improve the usefulness of disclosure documents. What additional actions can we take to encourage focus on clear and understandable material disclosures?
• Is additional disclosure regarding the background, experience, performance and role of transaction parties needed? In evaluating the proposed disclosure items relating to these parties, should we be more specific on particular aspects that should be disclosed?
• Should audited financial statements be required to be filed for issuing entities? If so, for what periods? What would be the costs and benefits of such a requirement? Should they be required in some filings (
◦ Are one or more of the basic audited financial statements (balance sheet, statement of income, retained earnings, or cash flows) more relevant for issuing entities than the
◦ Should a statement of cash flows using the direct method be required?
◦ What additional disclosures would be relevant if only one or more basic financial statements, rather than full audited financial statements, are provided (for example, disclosures about the fair value of financial instruments pursuant to FASB Statement 107)?
◦ Instead of GAAP financial statements, should financial statements be required that are prepared on another basis, such as on the basis of cash receipts and cash disbursements?
Existing Items 501-503 of Regulation S-K would still provide the basic disclosure requirements for the forepart of Securities Act registration statements and registration statement prospectuses, which cover items such as the cover page of the prospectus, the prospectus summary and risk factors. Proposed Items 1102 and 1103 of Regulation AB would amplify those requirements by providing guidance on preparing those sections for ABS offerings consistent with current practice. In particular, they would clarify information that is to appear on the cover page of the prospectus, as well as inform the type and manner of presentation for ABS-specific disclosure items for the prospectus summary.
As with prospectuses for all registered offerings, disclosure on the cover page is to be limited and brief. For example, credit enhancement disclosure for the cover page should consist of only brief identifying statements, such as bond insurance provided by the particular named insurer.
Consistent with common ABS-specific items such as a summary of the flow of funds and credit enhancement, disclosure specified for the summary would include disclosure of the classes offered by the prospectus and classes issued in the same transaction or residual or equity interests in the transaction not being offered by the prospectus.
We do not propose to identify a representative list of risk factors that may be common to many ABS transactions. We are concerned that any such list would result in boilerplate and generic disclosures in all prospectuses even if not applicable to the particular transaction. Registrants should take care in analyzing the most significant factors that make the ABS offering speculative and risky, and explain briefly yet particularly how those risks affect investors. We do propose to clarify that in identifying risk factors, registrants are to identify any risks that may be different for investors in any offered class of asset-backed securities (such as subordinated classes or principal-weighted or interest-weighted classes), and if so, identify such classes and describe such differences.
• Are any modifications needed to the proposed list of items? Should we be more specific (or less specific) regarding any items?
• Should we provide a list of representative risk factors? How could we address our concern that any such list would become boilerplate disclosure in all filings?
We propose to define the “sponsor” as the person who organizes and initiates an asset-backed securities transaction by selling or transferring assets, either directly or indirectly, including through an affiliate, to the issuing entity. As discussed above, in addition to basic identifying information about the sponsor, we propose to require a description of the sponsor's securitization program. The purpose of the description would be to provide context within which to analyze the characteristics and quality of the asset pool.
Such a description would consist of both a general discussion of the sponsor's experience in securitizing assets of any type, as well as a more detailed discussion of the sponsor's experience in and overall procedures for originating or acquiring and securitizing assets of the type to be included in the current transaction. Information should be included, to the extent material, regarding the size, composition and growth of the sponsor's portfolio of assets of the type to be securitized and information or factors related to the sponsor that may be materially relevant to an analysis of the origination or performance of the pool assets. For instance, this could include whether any prior securitizations organized by the sponsor have defaulted or experienced an early amortization or other performance triggering event, or if any action was taken outside the ordinary performance of the transaction to prevent such an occurrence.
Other relevant information, to the extent material, would include the sponsor's credit-granting or underwriting criteria for the asset types being securitized (and the extent to which they have changed), the extent to which the sponsor outsources to third parties any of its origination or purchasing functions and the extent to which the sponsor relies on securitization as a funding source. A description of the sponsor's roles and responsibilities in its securitization program and the sponsor's participation in structuring the transaction also would be required, including whether the sponsor or an affiliate is responsible for the selection of the pool assets.
In addition to this information, an increasingly valuable tool to analyze performance is the use of static pool
For example, while presentation of a delinquency or loss statistic at the pool level, such as an overall charge-off rate, may be useful, it does not indicate the amount and timing of charge-offs over time. Static pool analysis may indicate that more recent originations are experiencing higher delinquencies at each point in their life cycle than older originations, which could suggest a declining quality in the obligor pool or a possible relaxation of credit standards. In that case, as more seasoned originations with a lower delinquency profile matured and exited the asset pool, the pool would increasingly be left with more recent originations with a higher delinquency profile, which may begin to affect performance. However, the overall delinquency statistic presented at the beginning of the transaction would be a blending of all originations and thus may not indicate the potential performance change. Without static pool data, an investor might have no means to identify a material potential increase in delinquency rates that would be indicated by these data.
Static pool data for several different data groups may be material for the current offering. For example, static pool data for the sponsor's overall portfolio can indicate origination trends relevant to how a currently offered pool can be expected to perform, particularly if the offered pool is unseasoned. Static pool data on a pool level basis with respect to prior securitized pools of the sponsor also can provide valuable information on both the quality and experience of pool selection as well as additional insight into asset performance. Finally, if the offered pool is seasoned, static pool data based on originations in the pool itself may reveal trends that may not be evident by aggregate pool-level statistics.
We have previously received requests that disclosure of such data should be received because investors view static pool data regarding delinquency and loss experience as important information in evaluating an investment in asset-backed securities.
If material, static pool data also would be required on a pool level basis with respect to prior securitized pools involving the same asset type established by the sponsor during the period. Static pool data, whether with respect to the sponsor's portfolio, prior pools or the pool itself, should be presented separately, to the extent material, according to factors relevant to the pool involved, such as by asset term, asset type, yield, geography or ranges of credit scores or other applicable measures of obligor credit quality. Selection of factors should result in disclosure of material information. How and according to which factors static pool information is presented, if at all, will depend on the particular asset class, the sponsor's history and the asset pool and transaction involved. Our proposals would not require preparation or disclosure of static pool data for data groups or factors that are immaterial.
In providing static pool data that is material to the transaction, registrants are encouraged to provide accompanying explanatory information about the data to place it in context for the current pool, such as how the composition of the offered pool may differ from the static pool data provided. In instances where the particular assets selected for the pool differ materially from the data provided regarding the overall portfolio or prior transactions, such additional information may be required.
We propose to define the “depositor” as the person who receives or purchases and transfers or sells the pool assets to the issuing entity. For asset-backed securities transactions where there is not an intermediate transfer of assets from the sponsor to the issuing entity, the sponsor would be deemed to be the depositor.
If the depositor was not the same entity as the sponsor, separate identifying information about the depositor would be required, including information on the ownership structure of the depositor and the general character of any activities of the depositor other than securitizing assets. In addition, if materially different from the sponsor, information similar to that discussed above regarding the depositor's securitization program and its experience would be required. Finally, disclosure would be required regarding any continuing duties of the depositor after issuance of the asset-backed securities with respect to the asset-backed securities or the pool assets.
The nature of the issuing entity and the transfer of the pool assets is elemental to the concept of securitization. We propose to define the “issuing entity” to mean the trust or other entity created at the direction of the sponsor or depositor that owns or holds the pool assets and in whose name the asset-backed securities supported or serviced by the pool assets are issued.
Consistent with existing practice, disclosure would be required regarding both the nature of the issuing entity and the sale or transfer of the pool assets. Information about the issuing entity
In addition to a material narrative description of the sale or transfer of the pool assets, such information also should be provided graphically or in a flow chart if it will aid understanding. The discussion also must describe the creation (and perfection and priority status) of any security interests for the benefit of the transaction. Information would be required on the amount paid or to be paid for the pool assets, including the principles followed in determining such amounts, as well as information on any expenses incurred in connection with the selection and acquisition of the pool to be payable from offering proceeds.
Disclosure would be required to the extent material regarding any provisions or arrangements included to address any one or more of the following issues:
• Whether any security interests granted in connection with the transaction are perfected, maintained and enforced;
• Whether a declaration of bankruptcy, receivership or similar proceeding with respect to the issuing entity can occur;
• Whether in the event of a bankruptcy, receivership or similar proceeding with respect to the sponsor, originator, depositor or other seller of the pool assets, the issuing entity's assets will become part of the bankruptcy estate or subject to the bankruptcy control of a third party; and
• Whether in the event of a bankruptcy, receivership or similar proceeding with respect to the issuing entity, the issuing entity's assets will become subject to the bankruptcy control of a third party.
Of course, any material risks related to the above must be discussed in the risk factors section of the prospectus.
The role of the servicer is often not limited to administration and collection of the pool assets. The servicer also often is the primary party responsible for calculating the flow of funds for the transaction, preparing distribution reports and disbursing funds to the trustee who in turn uses the allocations provided by the servicer to distribute funds to security holders. Our proposed definition of “servicer” is designed to capture this entire spectrum of activity to include both collection and asset maintenance activities as well as cash flow allocation and distribution functions for the ABS. We propose to define “servicer” as any person responsible for the management or collection of the pool assets or making allocations or distributions to holders of the asset-backed securities. This would include parties often referred to as “administrators.” Also, given that some of these functions may be performed by the trustee in certain transactions, the definition would clarify that the term “servicer” does not include a trustee for the issuing entity or the asset-backed securities that makes allocations or distributions to holders of the asset-backed securities, if the trustee receives such allocations or distributions from a servicer and the trustee does not otherwise perform the functions of a servicer.
Given the increasing realization of the importance of the role of the servicer in ABS transactions, our proposed disclosure requirement regarding servicers is designed to elicit additional information regarding their function, experience and servicing practices.
Our proposed disclosure requirements would require information regarding the entire servicing function, including a clear description of the roles, responsibilities and oversight requirements of the entire servicing process and the parties involved. In addition, separate information would be required regarding certain sub-servicers. In particular, where servicing of the pool assets utilizes multiple servicers, separate information would be required for the master servicer, each affiliated servicer, each unaffiliated servicer (such as primary servicers) that services 10% or more of the pool assets and any other servicer, such as a special servicer, that performs work-outs, foreclosures or other material aspect of the servicing of the pool assets upon which the performance of the pool assets or the asset-backed securities is materially dependent. The 10% threshold we propose for unaffiliated servicers is consistent with our proposed thresholds for disclosure regarding other parties to the ABS transaction, such as third party originators, concentrated obligors and providers of enhancement or other support. We believe this breakpoint provides consistency and clarity in determining a triggering event for disclosure, and is consistent with many other longstanding standards used for our existing disclosure requirements.
For servicers where disclosure is required, the information to be provided can be categorized into three general
Other information that may be material could include whether any prior securitizations involving the servicer have defaulted or experienced an early amortization or other performance triggering event because of servicing, the extent of outsourcing the servicer utilizes or if there has been previous disclosure of material noncompliance with servicing criteria with respect to other securitizations involving the servicer. Disclosure would be required of any material changes to the servicer's policies or procedures in servicing assets of the same type during the past three years in order to demonstrate recent trends involving the servicer. Finally, information regarding the servicer's financial condition would be required where it could have a material impact on one or more aspects of servicing of the pool assets and where those aspects could materially impact pool performance on the asset-backed securities. General financial information would not be required. We are seeking particular information that could have a material impact as described.
The material terms of the servicing agreement and the servicer's duties regarding the asset-backed securities transaction would need to be described, and the servicing agreement would be required to be filed as an exhibit. A description of the servicer's servicing practices also would be required, which would include such commonly disclosed items as:
• The manner in which collections on the pool assets will be collected and maintained, including the extent of commingling of funds.
• Terms or arrangements regarding advances of funds regarding cash flows, including interest or other fees charged and terms of recovery. Statistical information regarding past advance activity would be required, if material.
• The servicer's process for handling delinquencies and losses.
• Any material ability to waive or modify any terms, fees, penalties or payments on the pool assets.
• Custodial requirements regarding the pool assets.
• Any material minimum criteria the servicer is required to meet not specified in our proposed list of servicing criteria discussed in Section III.D.7.
As the ABS market has matured, another aspect of such transactions that has increased in importance is the role of servicer transition arrangements, or back-up servicing.
As a result, the scrutiny of back-up servicing arrangements has increased, including the level of arrangements with a particular back-up servicer, often referred to in market practice as how “warm” the back-up servicer is. We propose to require disclosure regarding any terms regarding a servicer's removal, replacement, resignation or transfer, including arrangements regarding, and any qualifications required for, a successor servicer. Material information on the process for transferring servicing would need to be described, as well as any provisions for the payment of expenses associated with a servicing transfer or any additional fees that may be charged by a successor servicer.
An ABS transaction may involve one or more trustees. For example, there may be a separate trustee for the issuing entity and for the ABS indenture. In addition to basic identifying information about any such trustee, disclosure would be required regarding the general character of the trustee's business, the trustee's prior experience in similar ABS transactions, indemnification provisions, limitations on liability and removal or replacement provisions.
Recently, there has been debate in the market on the nature and role of the trustee in ABS transactions, in particular the trustee's level of oversight regarding the transaction.
Some ABS transactions involve pool assets that were not originated by the sponsor. The sponsor may have acquired the pool assets from a separate originator or through one or more intermediaries in the secondary market before securitizing them. If the pool
Accordingly, we propose to require disclosure regarding any originator apart from the sponsor that has originated, or is expected to originate, 10% or more of the pool assets. As noted above with respect to disclosure regarding unaffiliated servicers, a 10% threshold is consistent with our proposed thresholds for disclosure regarding other parties to the transaction, such as concentrated obligors and providers of enhancement or other support. For any originator that meets the 10% threshold, the originator's origination program would need to be described, to the extent material, including the size and composition of the originator's portfolio, as well as other information material to an analysis of the performance of the pool assets, such as the originator's credit-granting or underwriting criteria.
ABS transactions may involve additional or intermediate parties other than the typical ones identified above, such as intermediate transferors. We propose to clarify in the general applicability section of Regulation AB that if the ABS transaction involves such a party, information is required to the extent material regarding that party and its role, function and experience in relation to the asset-backed securities and the asset pool.
In addition, as noted in Section III.A.6., some ABS transactions arestructured such that the asset pool consists of one or more financial assets that represent an interest in or the right to the payments or cash flows of another asset pool, such as in the case of an origination trust in an automobile lease transaction. In many cases, such structures are established under the direction of the same sponsor and depositor and are designed solely to facilitate the ABS transaction. The actual source of the cash flows that are to be used to service the asset-backed securities is the asset pool underlying the intermediate financial asset. Consistent with current practice, we propose to clarify that in such an instance, references to the asset pool and the pool assets of the issuing entity also include the other asset pool.
• We request comment on the proposed disclosure regarding transaction parties. We also request comment on our proposed definitions. Are there additional parties not mentioned that should be specifically referenced? For each particular disclosure item, are there any modifications that should be made to the list of items to be disclosed? For example, should information regarding personnel or management of the sponsor, servicer or other party, including any recent turnover in personnel or management, be listed as an additional item for disclosure, if material? Should any of the examples of disclosure be added explicitly to the proposed items? Would information about the depositor's securitization program ever materially differ from the sponsor's? Several rating agencies provide ratings for servicers. Should these be required to be disclosed?
• Should specific financial information be required regarding any of the transaction parties? If so, for which parties should information be required? What information should be required (
• We request comment on the proposed requirement to include static pool data for the sponsor's portfolio and for prior securitized pools by the sponsor. Is such data material? Is such data available? Is additional clarity needed regarding the scope of the requirement? For what period should such data be presented? How should variations in what may be relevant for each asset type or asset pool be considered? Are there particular statistics that should be specifically identified for presentation on a static pool basis? If data on a static pool basis are required, should any updates to the data be required on an ongoing basis? If so, what data should be updated, how often and where should they appear? Should we require explanatory information about static pool data?
• Is additional specificity required for disclosure of the transfer of the pool assets? For example, should there be any modifications to the disclosure regarding bankruptcy separation, bankruptcy remoteness and the creation of security interests? In the case of sponsors that acquire pool assets for securitization from other originators or issuers, should there be disclosure of the difference between the acquisition price and the price paid by the issuing entity?
• Should any statement or opinion, such as an opinion of counsel, regarding any bankruptcy separation or bankruptcy remoteness issues be required to be filed? Should they only be required if they are required by the underlying transaction documents? Should there be disclosure if such opinions are not provided?
• We request comment on requiring more disclosure regarding sub-servicers. What are the ramifications of including additional disclosure regarding sub-servicers, including the material terms of the agreements with such sub-servicers? Is such disclosure important to investors? Are there instances where this information should not be required?
• Is a 10% breakpoint appropriate for triggering disclosure regarding unaffiliated servicers and significant originators? Should the percentage be higher (
• Should the proposed disclosure regarding the trustee include more explicit examples of activities that the trustee does and does not do? Should there be disclosure of any other entity that would perform such activities if the trustee does not? Is the same disclosure needed for both the trustee for the issuing entity and the trustee for the ABS indenture?
• Should any information regarding third party originators be required other than what is provided today? If so, is it practical to obtain such information? Should material static pool data regarding such originators be required?
• We request comment on the clarification regarding the application of our proposals to the asset pool underlying a financial asset that represents an interest in or the right to the payments or cash flows of that asset pool. Does our proposed list of conditions adequately identify the relevant structures?
Information about the composition and characteristics of the asset pool is a cornerstone of the disclosure necessary to make an informed investment decision regarding an asset-backed security. As noted above, we do not propose detailed industry guides for each asset type to be securitized. However, while the material characteristics will vary depending on the nature of the pool assets, there are certain broad categories of disclosure and examples of common characteristics that can be identified as representative of the material disclosure that is to be provided. The actual disclosure to be provided would need to be tailored to the asset type and asset pool involved for the particular offering, just as it is today.
Under our proposal, certain general information regarding the asset pool would be required, including a brief description of the asset type to be securitized and a general description of the material terms of the pool assets. In addition, the solicitation, credit-granting or underwriting criteria used to originate or purchase the pool assets would need to be described. The selection criteria for the asset pool also would need to be described, as well as the cut-off date or similar date for establishing pool composition. Finally, the effects of any legal or regulatory provisions would need to be described, such as any bankruptcy, consumer protection, predatory lending, privacy, property rights or foreclosure laws or regulations, to the extent they may materially affect pool asset performance or payments or expected payments on the asset-backed securities.
As information about the asset pool necessarily includes statistical information, the need for clear and material presentations is important. Appropriate introductory and explanatory information should be provided to introduce characteristics and any terms or abbreviations used. As is the case today, statistical information should be presented in tabular or graphical format, if it would aid understanding. Statistical information also should be presented in appropriate distributional groups or incremental ranges material to an analysis of the information, in addition to presenting appropriate overall pool totals, averages and weighted averages.
Currently, statistical disclosures by distribution groups or ranges often present just the number, amount and percentage of pool assets for each group or range. If material, registrants also should provide statistical information for each group or range by other material variables, such as, among others, average balance, weighted average coupon, average age and remaining term, average loan-to-value or similar ratio, and weighted average credit score or other applicable measure of obligor credit quality. Similarly, when presenting averages on an aggregate basis and within each group or range, registrants should consider providing minimums and maximums underlying the averages. As is often the case today, historical data on pool assets is to be provided, as appropriate, such as the lesser of three years or the time such assets have existed, to allow a material evaluation of the pool data.
Examples of material characteristics specified in the proposed disclosure item that may be common for many asset types and representative of disclosures currently provided include:
• Number of each type of pool assets.
• Asset size, such as original balance and outstanding balance as of a designated cut-off date.
• Interest rate or rate of return, including type of interest rate if the pool includes different types, such as fixed and floating rates, and annual percentage rate.
• Capitalized or uncapitalized accrued interest.
• Age, maturity, remaining term, average life (based on different prepayment assumptions), current payment/prepayment speeds and pool factors, as applicable.
• Servicer, if different servicers service different pool assets.
• If a loan or similar receivable: amortization period; loan purpose; loan status; loan-to-value (LTV) ratios and debt service coverage ratios (DSCR); type and/or use of underlying property, product or collateral; and number of points or other origination charges paid on the pool assets.
• If a receivable or other financial asset with a revolving balance, such as a credit card receivable: monthly payment rate; maximum credit lines; average account balance; yield percentages; type of receivable account; finance charges, fees and other income earned; gross and net purchases and returns granted; and percentage of full-balance and minimum payments made.
• Whether the pool asset is secured or unsecured, and if secured, the type(s) of collateral.
• Ranges of standardized credit scores of obligors and other information regarding obligor credit quality.
• Billing and payment procedures, including frequency of payment, payment options, fees, charges and origination or payment incentives.
• Information about the origination channel and origination process for the pool assets, such as originator information (and how acquired) and level of origination documentation required, as applicable.
• Geographic distribution, such as by state or other material geographic region.
• If material, other concentrations material to the asset type (
In addition to the above and consistent with existing practice, delinquency and loss information for the pool would be required. A proposed item of general applicability for Regulation AB would provide guidance regarding the presentation of such information.
As discussed in Section III.B.3.a., we also propose to require static pool data for the asset pool regarding delinquency and losses, to the extent material. As with static pool data at the sponsor level, additional explanatory disclosure regarding the static pool data could be included, and in some cases could be required.
In a commercial mortgage-backed securitization, given the importance of the underlying properties, our sample list of proposed disclosure items for these assets is consistent with similar disclosure required by existing Form S-11 for the registration of offerings of securities for certain real estate
• Net cash flow information from the pool assets and the components of net cash flow.
• Location and general character of all materially important real properties.
• Nature and amount of other material mortgages, liens or encumbrances.
• Proposed renovation, improvement or development programs.
• Competitive conditions.
• Management of the properties, occupancy rates and property uses.
• Material tenants and lease terms.
In some ABS transactions, cash flows to support the asset-backed securities come from more than one source, such as in lease-backed transactions that include separate cash flows from lease payments and from the sale of the residual asset at the termination of the lease. In such instances, disclosure would be required, consistent with what is provided today, of the specific sources of funds and their uses, including, if applicable, the relative amount and percentage of funds that are to be derived from each source. Any assumptions, data, models and methodology used to derive such amounts also would need to be described.
As discussed in Section III.A.2.d., we propose additional specific disclosures if the asset pool includes leases or other assets where a portion of the cash flow is anticipated to come from the residual value of an underlying physical asset. Such disclosure would include information on how residual values are estimated and derived, statistical information regarding estimated residual values and historical statistics on turn-in rates and residual value realization rates. Information also would be required regarding the manner and process in which residual values are to be realized, including disclosure of the entity that will convert the residual values into cash and the experience of such entity. Finally, disclosure would be required of the effects if not enough cash flow was received from the realization of residual values, whether there existed any provisions to address such a contingency, as well as how any cash flow greater than that necessary to repay security holders would be allocated.
As discussed in Section III.A.2.e., we are proposing more detailed disclosures on when and how the composition of an asset pool may change, such as through a prefunding or revolving period. Such disclosure would include:
• The term or duration of any prefunding or revolving period.
• Aggregate amounts and percentages involved in the prefunding or revolving period.
• Triggers that would terminate limits or terminate such periods.
• When and how new pool assets may be added, removed or substituted, and the acquisition or underwriting criteria for additional pool assets, and the party that makes determinations on such changes.
• Any minimum requirements to add or remove pool assets.
• Temporary investment of funds pending use.
• How investors will be notified of any changes to the asset pool.
When pool assets are transferred to the issuing entity, the sponsor, transferor or other party often makes certain representations and warranties concerning the pool assets, such as to their principal balance and status at the time of transfer. If an asset fails to meet the requirements of those representations or warranties, there may be obligations for the depositor to repurchase or substitute that asset for assets that do comply with the representations and warranties. Consistent with current practice, disclosure of these rights and remedies would be required. Similarly, disclosure would be required regarding any material direct or contingent claims that parties other than the holders of the asset-backed securities have on any pool assets, such as prior mortgages, liens or encumbrances.
• We request comment on the proposed disclosure regarding the asset pool. Are there any modifications that should be made to the list of representative items to be disclosed? For example, is additional specificity needed regarding when and how the asset pool may change? Is the disclosure regarding rights and claims regarding the pool assets appropriate?
• Is the proposed disclosure regarding lease-backed ABS appropriate? Is additional specificity needed regarding residual value disclosures or how residual values are to be realized?
• Should additional guidance be provided on the methods to present statistical disclosure so that it is presented in a clear and understandable format?
• Similar to our proposals for the sponsor, we request comment on the proposed requirement to include static pool data for the asset pool. Is such data material to an investment decision? Is it readily available for presentation? Is additional clarity needed regarding the scope of the requirement? Should any updates to the data be required on an ongoing basis? If so, what data should be updated, how often should they be updated, and where should they appear?
Existing Item 202 of Regulation S-K would continue to provide the core disclosure requirements for describing the securities being offered. Proposed Item 1112 of Regulation AB would provide additional guidance consistent with existing practice for preparing this disclosure for asset-backed securities. For example, the item would clarify that an explanation is to be given of the types or categories of securities that may be offered, such as interest-weighted or principal-weighted classes or planned amortization or companion classes, as well has how principal and interest on each class of securities is calculated and payable. Other specified items would include amortization, performance or similar triggers or events (and their effects on the transaction if triggered), overcollateralization or undercollateralization information, cross-default or cross-collateralization provisions, voting requirements to amend the transaction documents and any minimum standards, restrictions or suitability requirements regarding ownership of the securities.
A clear description of the flow of funds for the transaction would be required. Such a description would include payment allocations, rights and distribution priorities among all classes of the issuing entity's securities, and within each class, with respect to cash flows, credit enhancement and any other structural features in the transaction. Any requirements directing cash flows would need to be described, such as to reserve accounts, along with a description of the purpose and operation of those requirements. In addition to an appropriate narrative description, the flow of funds should be presented graphically if doing so would aid understanding.
There has been increased emphasis in the market on the level of fees and expenses involved in an ABS transaction.
Other disclosures regarding the transaction structure would include information on the frequency of distribution dates and the collection periods for the pool assets and arrangements for cash held pending use, including identification of the parties with access to cash balances and the authority to make decisions regarding their investment and use. Information on the ownership of any residual or retained interests to the cash flows would be required, as well as the disposition of excess cash flow. Disclosure would need to be provided of any requirements to maintain a minimum amount of excess cash flow or spread from, or retained interest in, the transaction, and effects on the transaction if the requirements were not met.
As with any fixed-income security, optional or mandatory redemption or termination provisions would need to be described, including any “clean up” calls if the principal balance of the pool assets reaches a specified minimum level. Many ABS transactions include “clean up” calls whereby the securities are called and the trust terminated before its stated termination date when the administrative costs no longer justify the limited outstanding life.
We propose to require additional information if the transaction structure involves a master trust. For example, information would be required to the extent material regarding any additional securities already outstanding or that may be issued in the future that are backed by the same asset pool, including:
• The relative priority of those additional securities to the securities being offered and their respective rights to the underlying pool assets and cash flows;
• Allocations of cash flow from the asset pool and any expenses or losses among the various series or classes;
• Terms under which additional series or classes may be issued and pool assets increased or changed; and
• The terms of any security holder approval or notification of any additional issuance.
In describing generally the scope of disclosure expected in ABS registration statements, the 1992 Release specifically referenced disclosure regarding prepayment, maturity and yield considerations that may be material to ABS. In our proposed disclosure requirements, a description would be required, which is often provided today, of any material models, including material assumptions and limitations, used as a means to identify cash flow patterns with respect to the pool assets. Similarly, the disclosure would need to explain, to the extent material, the degree to which each class of securities is sensitive to changes in the rate of payment on the pool assets, and describe the specific consequences of such changing rate of payment.
• We request comment on the above proposed disclosure regarding transaction structure. Are there any modifications that should be made to the list of items? For example, is additional specificity needed regarding the information that should be provided regarding prepayment, maturity and yield considerations?
• Is a separate itemized fee and expense table useful, or would disclosure of fees and expenses as part of a flow of funds discussion be sufficient?
• If the proposal regarding an assessment of compliance with servicing criteria is modified, should additional disclosure be required regarding controls and procedures over collections and cash balances?
• Is the proposed disclosure about additional series or classes of securities in master trust structures sufficient? Should disclosure of additional information be required?
In most securitizations, the asset pool represents obligations of a large enough number of separate obligors that information on any individual obligor is not material. However, as discussed in Section III.A.6., as concentration with a particular obligor or group of related obligors increases, additional disclosures regarding that obligor or group of related obligors, including financial information, is required. Analogizing to the standards in Topic 1.I of Staff Accounting Bulletin No. 103, current staff and market practice is to require additional disclosures regarding a particular obligor or group of related obligors when concentration reaches 10%, with more particular disclosures at 20%.
Consistent with this long-standing practice, we propose to define a “significant obligor” that would trigger additional disclosures as any of the following:
• An obligor or a group of affiliated obligors on any pool asset or group of pool assets if such pool asset or group of pool assets represents 10% or more of the asset pool;
• A single property or group of related properties securing a pool asset or a group of pool assets if such pool asset or group of pool assets represents 10% or more of the asset pool; or
• A lessee or group of affiliated lessees if the related lease or group of leases represents 10% or more of the asset pool.
Instructions to the proposed definition would clarify that if separate pool assets, or properties underlying pool assets, are cross-defaulted and/or cross-collateralized, such pool assets are to be aggregated and considered together in determining concentration levels. With respect to lessees, the concentration calculation must focus on the leases whose cash flow supports the asset-backed securities directly or indirectly, regardless of whether the asset pool contains the leases themselves, mortgages on properties
For each significant obligor, both descriptive and financial information would be required consistent with existing practice. Descriptive information would include the identity of the significant obligor, its organizational form, the general character of its business, the nature of the concentration and the material terms of the pool assets or the agreements with the obligor involving the pool assets.
Consistent with current practice, different levels of financial information would be required depending upon the level of concentration.
We propose instructions to address exceptions to the requirement to provide financial information regarding a significant obligor. For example, no financial information would be required if the obligations of the significant obligor as they relate to the pool assets are backed by the full faith and credit of the United States. Similarly, no financial information would be required if the obligations of the significant obligor as they relate to the pool assets are backed by the full faith and credit of a foreign government, if the pool assets are investment grade securities. Otherwise, information required by paragraph (5) of Schedule B of the Securities Act
• We request comment on the proposed definition of significant obligor. Are any modifications necessary? Is the test of whether the pool asset represents 10% or more of the asset pool the appropriate test? Should it instead be based on cash flows supporting the offered ABS, the principal amount of the offered asset-backed securities or a combination of any of these tests? Is the application to lessees appropriate? Should any other particular entities be included or excluded?
• Are the 10% and 20% breakpoints still appropriate for triggering when different levels of financial disclosure should be required? Should they be changed?
• We also request comment on the level of disclosure to be required, both descriptive and financial, regarding significant obligors. Are there alternative disclosures that should be required or permitted? For example, in the case of an insurance company or other regulated entity that is not subject to Exchange Act reporting requirements and does not otherwise provide GAAP financial statements, should financial statements prepared under the entities' regulatory accounting principles be acceptable as a substitute?
• Should there be any additional exclusions to when financial information would be required? Are the proposed instructions regarding governments and asset-backed securities appropriate?
The definition of asset-backed security contemplates the inclusion of “rights or other assets designed to assure the servicing or timely distribution of proceeds to security holders.” Credit enhancement or other support for asset-backed securities can be provided in a variety of ways, including features internally structured into the transaction to provide support as well as externally provided enhancement. Disclosure would be required of all such methods of enhancement, to the extent material, including any of the following:
• Any external credit enhancement designed to ensure that the asset-backed securities or pool assets will pay in accordance with their terms, such as bond insurance, letters of credit or guarantees;
• Any mechanisms to ensure that payments on the asset-backed securities are timely, such as liquidity facilities, lending facilities, guaranteed investment contracts and minimum principal payment agreements;
• Any derivatives that are used to reduce or alter risk resulting from financial assets in the asset pool and that provide payments in return for payments on such assets, such as interest rate or currency swaps, or that are used to provide credit enhancement related to assets in the pool;
• Any internal credit enhancement structured into the transaction to increase the likelihood that one or more classes of asset-backed securities will pay in accordance with their terms, such as subordination provisions, overcollateralization, reserve accounts, cash collateral accounts or spread accounts.
Similar to significant obligors, enhancement or other support by a particular entity or group of affiliated entities may reach a certain level of concentration such that additional disclosures, including financial disclosures, would be appropriate. Consistent with current practice, we propose that if an entity or group of affiliated entities providing enhancement or other support for the asset-backed securities is liable or contingently liable to provide payments representing 10% or more of the cash flow supporting any offered class of asset-backed securities, additional information, both descriptive and financial, would be required. The descriptive information would include the name of the enhancement provider, its organizational form and the general character of its business.
Also consistent with current practice and our proposals for significant obligors, we propose to use 10% and 20% thresholds in determining the level of financial information that would be required regarding an enhancement provider. In particular, if any entity or group of affiliated entities that provided enhancement or other support for the asset-backed securities was liable or contingently liable to provide payments representing 10% or more, but less than 20%, of the cash flow supporting any class of the asset-backed securities, selected financial data required by Item 301 of Regulation S-K would need to be provided. If the entity or group of affiliated entities was liable or contingently liable to provide payments representing 20% or more of the cash flow supporting any class of the asset-backed securities, audited financial statements meeting the requirements of Regulation S-X would be required. As with financial disclosure regarding significant obligors, Section III.B.9. discusses a proposal for an alternative method that may be available to incorporate the information by reference. We also propose similar instructions if the obligations of the enhancement provider are backed by the full faith and credit of the United States or certain foreign governments.
These disclosure requirements would apply to all providers of external credit or liquidity enhancement, insurance or guarantees, counterparties to swap or hedging arrangements, interest rate exchange arrangements, interest rate cap or floor arrangements, currency exchange arrangements or similar arrangements, and any other parties providing external credit enhancement or other support for payments on the asset-backed securities. Enhancement may support payment on the pool assets or payments on the asset-backed securities themselves.
Unlike current practice, our proposals would base the triggering event for disclosure on payments that the enhancement provider is liable or contingently liable to provide. Valuation of the enhancement, such as for swaps or other derivatives, would not be the relevant test. Even if a swap, such as an interest rate swap, was currently “out of the money” and no payments were required, if the swap provider was contingently liable for more than 10% of the cash flow supporting a class (for example, if interest rates changed), disclosure would be required on the same basis as any other form of enhancement, such as a guarantee, even though probability of payment on the guarantee likewise could be remote due to a high quality asset pool.
• We request comment on our proposals for disclosure regarding credit enhancement and other forms of support for an ABS transaction. Are any modifications necessary? Are there any additional examples we should provide?
• Is the test of whether the enhancement provider is liable or contingently liable for payments representing 10% or more of the cash flows to any class of the asset-backed securities the appropriate test? If not, why? What alternatives should be used? Should different tests be used for different forms of enhancement? What would be the rationale for different tests?
• Are the 10% and 20% breakpoints still appropriate for triggering when different levels of financial disclosure should be required? Should they be changed?
• We also request comment on the level of disclosure to be required, both descriptive and financial. Are there alternative disclosures that should be required or permitted? For example, in the case of an insurance company or other regulated entity that is not subject to Exchange Act reporting requirements and does not otherwise provide GAAP financial statements, should financial statements prepared under the entities' regulatory accounting principles be acceptable as a substitute?
• Should there be any additional exclusions as to when financial information would be required? Are the proposed instructions regarding U.S. and foreign government-backed obligations appropriate?
Consistent with existing practice, the registration statement would need to include a brief, clear and understandable summary of:
• The tax treatment of the asset-backed securities transaction under federal income tax laws.
• The material federal income tax consequences of purchasing, owning and selling the asset-backed securities. In addition, if any of the material federal income tax consequences are not expected to be the same for investors in all classes offered by the registration statement, the material differences would need to be described.
• The substance of counsel's tax opinion, including identification of the material consequences upon which counsel has not been asked, or is unable, to opine.
The filing and disclosure of tax opinions is a frequent topic of staff comment. The requirements with respect to tax opinions in ABS transactions are generally consistent with the requirements for non-ABS transactions.
In lieu of Item 103 of Regulation S-K, we propose a more tailored disclosure item for material legal proceedings with respect to asset-backed securities. For example, under the proposed disclosure item, a brief description would be required regarding any legal proceedings pending or known to be threatened against the sponsor, depositor, trustee, issuing entity, any servicer or any enhancement provider, or of which any property of the foregoing is the subject, that is material to security holders. Similar information would be required as to any such proceedings known to be contemplated by governmental authorities.
There often can be several affiliations between parties in an ABS transaction. For example, the servicer often is an affiliate of the sponsor. We propose to require a description of whether, and if so, how, the sponsor, depositor or issuing entity is an affiliate of any of the following parties: servicer, trustee, originator of at least 10% of the pool assets, significant obligor, significant enhancement provider, underwriter or other material party identified with respect to the transaction. Disclosure also would be required, to the extent known, of any affiliate relationships among any of the parties listed above. An “affiliate” of, or a person “affiliated” with, a specified person, is defined in Commission rules to mean “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.”
We also propose disclosure regarding whether there is, and if so, the general character of, any business relationship, agreement, arrangement, transaction or understanding entered into outside the ordinary course of business or on terms other than would be obtained in an arm's length transaction with an unrelated third party, apart from the asset-backed securities transaction, between the sponsor, depositor or issuing entity and any of the above referenced parties that either currently exists or that existed during the past two years that is material to an investor's understanding of the asset-backed securities. An instruction to the proposed item would clarify that what would be required is information material to an investor's understanding of the asset-backed securities. A detailed description or
We propose to codify current industry practice by requiring disclosure of whether the issuance or sale of any class of the offered securities is conditioned on the assignment of a rating by one or more rating agencies, whether or not NRSROs.
Post-issuance reporting of information regarding an ABS transaction is important to an understanding of transaction performance and, hence, investment decisions, including whether existing holders should sell their securities and whether prospective buyers should purchase them. Such disclosures in the ABS context generally involve both updated information about pool performance as well as information on allocations and distributions of cash flows to holders of the securities and other third parties according to the flow of funds. Investors necessarily consider the availability and quality of transaction reporting in determining whether, and at what level, to invest in such securities.
In addition to disclosure regarding reports to be filed with the Commission, we propose to require disclosure, which is often provided today, of the reporting investors can expect to receive and be able to access. This disclosure would need to include a description of the reports or other documents required under the transaction agreements, including the information to be included in the reports, the schedule and manner of their distribution or availability and who will prepare the reports.
We also propose to require disclosure of whether website access will be provided to Commission and transaction reports.
• Whether other reports to security holders or information about the asset-backed securities will be made available in this manner;
• If filings will be made available in this manner, the Web site address where such filings may be found; and
• If filings and other reports will not be made available in this manner, the reasons why they will not and whether an identified transaction party voluntarily will provide electronic or paper copies of those filings free of charge upon request.
The guidance provided in the Commission's release adopting similar disclosure for accelerated filers, such as how the Web site access can be provided, would be equally applicable to this disclosure.
• We request comment on these other basic disclosure items. Are there any modifications that should be made to these items? For example, is additional specificity needed regarding the tax consequences that should be described?
• What should be the proper scope for disclosure of affiliations and relationships between transaction parties? Should any modifications be made to the proposed disclosure item? Are all of the proposed related party transaction disclosures useful, or should the disclosure be limited from what is proposed? Should disclosure be required regarding any relationships at an individual level, such as with an executive officer or director of the sponsor, depositor or issuing entity, if applicable, that exists in connection with or apart from the asset-backed securities transaction?
• Should additional disclosure regarding ratings or the rating process be required? For example, should disclosure of fees paid to rating agencies be required? Should we require an explanation of what an NRSRO rating addresses and the characteristics the rating does not address?
• With regard to the content of reports that will be provided to investors, should a copy of the form of the report to be used be included with the registration statement or filed as an exhibit?
• We request comment on the proposed disclosure regarding Web site access to reports. Should disclosure also be required on an ongoing basis in the Form 10-K or in distribution reports? Is additional guidance necessary in how to comply with the proposal? Should alternative methods be considered in promoting the availability of transaction reporting to investors and market participants?
• Are there additional areas of disclosure that should be separately identified? For example, should there be a separate disclosure item for legal investment considerations, such as ERISA qualifications?
As discussed in Sections III.B.6. and 7., there are instances both today and under our proposals when additional financial information regarding third parties would be required in ABS filings, including financial information about significant obligors and significant providers of enhancement or other support. Over time, through several no-action letters and interpretations, the staff has permitted alternative methods to present or refer to this information if it exists in other Commission filings of the third party. The first alternative allows incorporation by reference of the third party's financial information into the ABS filing. The second alternative, available only with respect to significant obligors, allows an ABS filing to reference the significant obligor's Exchange Act reports on file with the Commission in lieu of providing the information.
We propose to codify both of these alternatives and clarify the conditions
The first alternative is derived from several staff no-action letters that permit the incorporation by reference of financial information regarding certain bond insurers from their or their affiliated entities' Exchange Act reports.
• The third party or entity that consolidates the third party in its financial statements is subject to the Exchange Act reporting requirements and is current with its reporting for the past twelve months (or such shorter period that it has been required to file reports);
• The reports to be incorporated by reference include (or properly incorporate by reference) the financial statements of the third party or such information is consolidated into the financial statements of the entity that consolidates the third party;
• The filing incorporating the information by reference describes any and all material changes to the incorporated information which have occurred subsequent to the filing of the incorporated information; and
• If included in a prospectus or registration statement, the prospectus also states that all documents subsequently filed by such third party, or the entity that consolidates the third party, prior to the termination of the offering also will be deemed to be incorporated by reference into the prospectus.
As we propose to expand the basic definition of asset-backed security to registered offerings on Form S-1, we also are proposing to permit incorporation by reference of third party financial information for ABS offerings registered on that form. In addition, several amendments to our existing incorporation by reference and updating rules are necessary to reflect incorporation by reference of information of third party filings in Securities Act registration statements.
We also propose to add three instructions that would remind registrants of our other existing incorporation by reference and updating requirements. The first instruction would remind ABS issuers that in addition to the proposed conditions above, any information incorporated by reference must comply with any other applicable Commission rules pertaining to incorporation by reference.
• We request comment on the alternative that permits incorporation by reference of required third party financial information. Should any of the conditions to the proposal be modified? Should the proposal be allowed for all significant obligors and enhancement providers that meet the proposed conditions?
• Is it appropriate to extend incorporation by reference for third parties to registered ABS offerings on Form S-1? Would it be appropriate to extend it to all parties?
• We also request comment on our proposed amendments to the incorporation by reference and updating rules to accommodate the proposal. In particular, we request comment on the proposed undertaking for incorporation by reference of third party information. Is additional guidance necessary regarding updating requirements?
The second alternative to presenting third party financial information is derived from several staff no-action letters and interpretive positions that permit reference to the Exchange Act reports of a significant obligor in lieu of inclusion of the obligor's financial information in the filing or incorporating them by reference.
Under our proposal, an ABS filing may include a reference to a significant obligor's Exchange Act reports (which would include a statement of how those reports may be accessed, including the third party's name and Commission reporting number) in lieu of providing the required financial information in the
• Neither the significant obligor nor any of its affiliates has had a direct or indirect agreement, arrangement, relationship or understanding, written or otherwise, relating to the asset-backed securities transaction, and neither the third party nor any of its affiliates is an affiliate of the sponsor, depositor, issuing entity or underwriter of the asset-backed securities transaction;
• The significant obligor meets at least one of the eligibility categories discussed below; and
• An undertaking is included that if the significant obligor ceases to meet any of the eligibility conditions, either the required information will be provided or the transaction, or that portion of the transaction, will terminate.
The first condition would clarify that the significant obligor must be unaffiliated and otherwise not involved with the ABS transaction. If the obligor was affiliated or involved with or participating in the ABS transaction, the policy argument to permit reference to the third party's reports in lieu of presenting the information or incorporating it by reference because of the potential impracticality in obtaining it is not present. As a result, the proposed reference alternative would not be available for financial information regarding a significant enhancement provider due to its involvement in the transaction and the information would have to be included in the filing or, if the conditions in Section III.B.9.a. are met, incorporated by reference.
The second condition refers to the categories of significant obligors that would be eligible for the reference alternative. Consistent with existing staff positions and market practice, the proposed eligible categories relate to the existing Form S-3 eligibility of the significant obligor. For example, the first category would be a significant obligor eligible to use Form S-3 or F-3 for a primary offering of non-investment grade securities pursuant to General Instruction I.B.1 of such forms, which requires a $75 million public float.
A fifth category would relate to significant obligors that are U.S. government-sponsored enterprises. Several GSE's historically have not been subject to Exchange Act reporting requirements. The staff has made accommodations for several of these entities so long as they have outstanding securities held by non-affiliates with a market value of $75 million or more and publicly make available audited financial statements prepared in accordance with generally accepted accounting principles and extensive business information. Our proposal would clarify the meaning of this requirement by permitting reference if the GSE had $75 million outstanding of securities held by non-affiliates and the GSE makes information publicly available on an annual and quarterly basis, including audited financial statements prepared in accordance with generally accepted accounting principles covering the same periods that would be required for audited financial statements under Regulation S-X and non-financial information consistent with that required by Regulation S-K.
A final category relates to significant obligors where the pool assets in question are themselves asset-backed securities. We would permit reference in this instance if the significant obligor was filing Exchange Act reports and was current in such reporting for at least twelve calendar months and any portion of a month immediately preceding the filing referencing the obligor's reports (or such shorter period that the obligor was required to file such materials). We do not propose to include an additional existing staff condition that the significant obligor has outstanding securities in excess of $75 million because we do not believe a market capitalization condition is relevant in the context of underlying ABS.
Because of the possibility that corporate debt issuers could suspend their reporting requirements, the staff has permitted ABS issuers securitizing such debt to include a provision that, if a significant obligor's financial information is not available, the transaction, or a portion of the transaction, would terminate, such as by distributing the pool assets to investors or selling the pool assets and liquidating the asset-backed securities. This option to terminate the transaction has developed through market practice where it is believed that the alternative of including the information in the ABS filing might become impractical or impossible. Our proposal addresses this problem and allows termination as an option. However, if the termination option was elected, the transaction, or that portion of the transaction, must terminate before updated information regarding the third party would be required. Provisions that the transaction would terminate “in a reasonable time” or after a given period of time would not be an alternative to providing information regarding a third party that otherwise would be required.
• We request comment on the alternative that permits reference to a third party's Exchange Act reports on file with the Commission in lieu of providing that information. Should any of the conditions to the proposal be modified? Should a termination option be recognized? We also request comment on the limitation of the proposal to only unaffiliated and uninvolved significant obligors. What are the reasons that would justify reference to reports by affiliated obligors, others involved in the transaction or an enhancement provider even though that entity is involved with the ABS transaction?
• We request comment on the proposed codification of the eligible categories of significant obligors for which reference information would be permitted. Given the size of most ABS transactions, would a $75 million requirement for outstanding securities add value for the ABS category?
The Securities Act restricts the types of offering communications that a registrant or those acting on its behalf (such as an underwriter) may use during a registered public offering.
The structuring of various classes of ABS can be quite complex involving a detailed analysis of the asset pool and a complicated allocation of pool asset cash flows. Given the important focus on tranching and pool characteristics, including potential cash flow patterns, sponsors or underwriters often wish to provide to potential investors computational materials and term sheets identifying the structure and underlying assets prior to finalizing the deal structure and printing the final prospectus. These materials may help investors understand the proposed transaction and analyze prepayment assumptions and other issues affecting yield and flow of funds. This information, which often includes detailed statistical and tabular data, would be impractical to provide orally. Historically, few investors have had the computer resources to prepare these analytics themselves.
Following a series of staff no-action letters from the mid-1990's, ABS issuers are permitted to use term sheets and computational material after the effectiveness of a registration statement but before availability and delivery of a final Section 10(a) prospectus.
The existing staff no-action letters contain filing requirements for the use of these materials, and provide that no confirmations of sale can be sent until the filing requirements are met. The filing requirements vary depending upon the type of material used and how it is used. Subject to various conditions, any collateral term sheet used before the final prospectus is delivered that represents a substantive change from a prior collateral term sheet must be filed on Form 8-K within two business days of first use and incorporated by reference into the registration statement for the offering.
Under slightly more complex conditions, structural term sheets and computational materials used before the final prospectus is available must be filed on Form 8-K prior to or with the filing of the final prospectus and incorporated by reference into the registration statement. If the materials are provided after the final prospectus is available but before it is delivered, they must be filed as soon as possible but not later than two business days of first use. Materials that relate to abandoned structures or that are furnished before the structure of the entire issue is finalized to investors which have not indicated their intention to purchase the ABS need not be filed.
We understand that where they are used, term sheets and computational material often represent the primary, if not the only, written materials that are used to offer asset-backed securities. We also understand that advances in technology over the ten years since the first no-action action letter was issued have raised several interpretive issues regarding the scope and application of the letters. For example, an increasing number of investors possess or have access to the analytical capacity to perform their own models and scenarios on pool data and therefore may request data at the individual pool asset level, or “loan level” data, instead of summarized charts and tables.
We are proposing to codify the concept in the staff no-action letters that permits the use of ABS informational and computational material after the effectiveness of a registration statement for an offering of asset-backed securities registered on Form S-3 but before delivery of the final Section 10(a) prospectus. Recognizing the current use of these materials in providing an increased flow of information to investors, the flexibility to tailor materials to specifically identified investor needs, and the liability for false and misleading statements or omissions, we believe permitting the use of ABS informational and computational material for Form S-3 ABS after effectiveness of the registration statement would be appropriate in the public interest and consistent with the protection of investors under the proposed conditions discussed below, including the proposed filing conditions. Accordingly, we propose to exempt from Section 5(b)(1) of the Securities Act the use of these materials during that period if certain specified conditions are met, including filing requirements.
The proposed exemption only would be available with respect to registered offerings of investment grade asset-backed securities that meet the requirements of General Instruction I.B.5 of Form S-3. We believe this is consistent with the intent of the existing staff no-action letters. We also believe offerings of asset-backed securities meeting the additional requirements for Form S-3 registration represent the appropriate categories of offerings that should be permitted to use ABS informational and computational material outside of the registration statement prospectus. The proposed rule, like the existing staff no-action letters, would not be available to offerings that meet the definition of asset-backed security but are registered on Form S-1.
Similar to requests we have received regarding non-ABS offerings, the Commission and the staff have received requests over the past several years with respect to ABS to liberalize the use of communications in and around the registered offering process beyond those allowed by the existing staff no-action letters and our proposed exemptive rule.
• We request comment on the proposed exemptive rule. What is the use of these materials in today's market? Is the proposed exemption consistent with the use of these materials? Does the use of these materials provide investors with enough time and information to make informed investment decisions?
• We do not propose to limit eligibility for the exemption on any variables such as transaction size or asset type. However, under the existing no-action letters we see few filings related to the use of term sheets or computational material outside of MBS. Should we limit eligibility by size, asset type or other variable? Is the use of these materials not necessary for other asset classes? Is there a reason why more of these materials are not filed?
• Should the exemption not be available to ABS targeted to non-institutional investors? For example, should the exemption not be available to ABS expected to have low minimum investment denominations (
• Is the proposed limitation to registered offerings on Form S-3 still appropriate? If not, under what circumstances should the proposal be extended to offerings on Form S-1? The existing letters and our proposals require filing of material on Form 8-K that is incorporated by reference into the registration statement. They also only apply to the use of materials after the effective date of the registration statement (
• Are any clarifying amendments necessary for ABS with respect to Securities Act Rule 134?
In the existing no-action letters, there is an overlap between the descriptions of structural term sheets, collateral term sheets and computational materials. There also are differences regarding which and how materials are to be filed depending on the type of materials used. These differences can create uncertainty as to when material needs to be filed given the overlapping descriptions. We propose to consolidate the descriptions of the materials that may be used under a single definition of “ABS informational and computational material.” ABS informational and computational material would be defined as a written communication consisting solely of one or some combination of the following:
• A brief summary of the structure of an offering of asset-backed securities that sets forth the name of the issuer, the size of the offering and the structure of the offering (such as the number of classes, seniority and priority and other terms of payment);
• Descriptive factual information regarding the pool assets underlying an offering of asset-backed securities, typically including data regarding the contractual and related characteristics of the underlying pool assets, such as weighted average coupon, weighted average maturity and other factual information regarding the type of assets comprising the pool;
• Static pool data, as discussed previously, for the sponsor's portfolio, prior transactions or the asset pool itself; or
• Statistical information displaying for a particular class of asset-backed securities the yield, average life, expected maturity, interest rate sensitivity, cash flow characteristics, total rate of return, option adjusted spread or other financial or statistical information relating to the class or classes under specified prepayment, interest rate, loss or other hypothetical scenarios. Examples of such information under the definition would include:
◦Statistical results of interest rate sensitivity analyses regarding the impact on yield or other financial characteristics of a class of securities from changes in interest rates at one or more assumed prepayment speeds;
◦Statistical information showing the cash flows that would be associated with a particular class of asset-backed securities at a specified prepayment speed; and
◦Statistical information reflecting the financial impact of losses based on a variety of loss or default experience, prepayment, interest rate and related assumptions.
These proposed items are intended to include existing structural term sheets, collateral term sheets and computational materials and also to clarify that static pool data would be permitted. Consistent with our proposal discussed below for one unified filing
While we do not intend to change the general scope of the materials that may be used, we do wish to clarify several interpretive issues regarding the no-action letters. First, and as noted above, some have been concerned whether the existing no-action letters would permit “loan level” information to be provided. We believe providing data at the individual pool asset level is permitted under the no-action letters and would continue to be permitted under our proposal. In providing such detail, however, issuers and underwriters should be mindful of any privacy, consumer protection or other regulatory requirements regarding the disclosure of individual information, such as including Social Security Numbers, especially given that in most cases the data must be publicly filed with the Commission.
Second, questions have arisen over what information should be considered ABS informational and computational material and filed with the Commission under the no-action letters, and by extension our proposal, regarding investor analytics or other third party services that allow issuers and underwriters to import into a system or otherwise provide data regarding structure or underlying assets that investors can then use to conduct their own analytics and computations. In the case of third party services, a particular relationship with the individual third party service may affect the analysis, such as whether the issuer or the underwriter are affiliates with the service provider or how the compensation is structured with the third party. Otherwise, if the investor analytics or third party service simply allow an investor to perform its own calculations based on collateral and structural inputs and models provided by the issuer or underwriter, only the inputs, models and other information provided by the issuer or underwriter would constitute ABS informational and computational material for purposes of the existing no-action letters and our proposal.
Some also have questioned the format in which the material must be filed, as the third party service may employ a unique file format for the data inputs. Consistent with an allowance already in the no-action letters and in our proposed filing rule discussed below, issuers and underwriters may aggregate data presented in ABS informational and computational material that are to be filed and file such data in consolidated form, so long as any such aggregation does not result in the omission of any information that should have been filed or makes the information misleading. Presentation of the information should be in an understandable form. While the preference is to file material using the same presentation used for investors, just as with other documents that contain computer instructions or formatting code, executable code used by a program to read the information is not to be filed.
• We request comment on the proposed definition of ABS informational and computational material, including the proposed addition of static pool data to the types of materials that may be used. Does the definition reflect the scope of materials that are used under the existing no-action letters?
• Consistent with the no-action letters, we do not propose content restrictions for the material so long as it meets the definition of ABS informational and computational material. Is this still an appropriate approach? Of course, even without content restrictions, the antifraud rules and other liability provisions applicable to the material would continue to apply.
• Are additional interpretive clarifications necessary regarding loan level detail or third party analytics providers? Is any additional clarification needed regarding other uses of ABS informational and computational material?
Under our proposed rule, two conditions would be required for ABS informational and computational material:
• The communications would need to be filed to the extent required under our proposed filing rule (discussed in Section III.C.1.e.);
• The communication must include prominently on the cover page:
◦The issuing entity's name and depositor's name;
◦ The Commission file number for the related registration statement;
◦ A statement that the communication is ABS informational and computational material used in reliance on our proposed rule; and
◦ A legend that urges investors to read the relevant documents filed or to be filed with the Commission because they contain important information. The legend also must explain to investors that they can get the documents for free at the Commission's website and describe which documents are available free from the issuer or an underwriter.
These proposed conditions are consistent with the requirements of the existing staff no-action letters. We do not propose to require additional legends from the no-action letters that the information contained in the material supercedes all prior ABS informational and computational material for the offering or will be superseded by the description of the offering contained in the Section 10(a) prospectus.
While the existing no-action letters require, and our proposal would require, a limited legend, we understand that today issuers or other users of these materials sometimes include additional legends or disclaimers in the materials. Several of these additional legends or disclaimers are inappropriate. As discussed more fully below, the materials are considered prospectuses and in many instances also must be
Examples of inappropriate legends or disclaimers include disclaimers regarding accuracy or completeness and statements requiring investors to read or acknowledge that they have read any disclaimers or legends or the registration statement.
Consistent with a similar provision in our communications exemptions for business combination transactions,
However, we do not propose another provision that currently exists in the communications exemptions for business combination transactions that a good faith immaterial or unintentional failure to file or delay in meeting the filing requirements would not result in a loss of protection under the exemption, primarily because an analogous provision does not exist in the current staff no-action letters for ABS term sheets and computational materials.
• We request comment on our proposed conditions to the exemption, including whether any additional conditions would be appropriate. For example, we request comment on the basic information and legend we propose to require for the materials. Should any additional information be required? Is any of the proposed information not necessary? Is any additional clarification about inappropriate disclaimers or legends necessary?
• Is the proposed clarification that the exemption also is applicable to any other party to the asset-backed securities transaction and any persons authorized to act on their behalf appropriate? Is any additional clarification needed?
• While the ABS market has operated under the no-action letters for nearly a decade without it, should the rule include an exception for a good faith immaterial or unintentional failure to file or delay in meeting the filing requirements? Has the absence of this exception chilled communications? Why would such an exception be appropriate now?
As noted above, under the staff no-action letters, there are currently multiple filing requirements depending on the type of materials used and the circumstances in which they are used. We propose to streamline these requirements into a unified filing rule that would apply regardless of the type of materials used. We believe this proposal will result in a more consistent approach and ease compliance without a significant drop in investor protection.
Under our proposal, the following ABS informational and computational material would need to be filed:
• For each prospective investor that had indicated to the underwriter that it would purchase all or a portion of the class of asset-backed securities to which such materials relate, all materials relating to such class that were provided to such prospective investor;
• For any other prospective investor, all materials provided to that prospective investor after the final terms have been established for all classes of the offering.
If the materials met the conditions above, they would need to be filed on Form 8-K (under proposed Item 6.01 of that Form), and thereby incorporated by reference into the registration statement, by the later of the due date for filing the final prospectus or two business days of first use.
The cover page of Form 8-K would need to disclose the Commission file number of the related registration statement for the asset-backed securities. Consistent with the no-action letters, ABS informational and computational material that relate to abandoned structures or that are furnished to a prospective investor prior to the time the final terms have been established for all classes of the offering where such prospective investor has not indicated to the underwriter its intention to purchase the asset-backed securities need not be filed.
The proposed rule clarifies, as do the letters, that ABS informational and computational material that does not contain new or different information from that which was previously filed need not be filed. In addition, the issuer may aggregate data presented in ABS informational and computational material that are to be filed and file such data in consolidated form, so long as any such aggregation does not result in the omission of any information that should have been filed or makes the information misleading. Finally, the filing rule clarifies that certain communications allowed under other Commission rules, though they may technically fall into the definition of ABS informational and computational material, need not be filed under this filing rule, such as limited notices of the offering meeting the requirements of Securities Act Rules 134, 135 and 135c,
Under the existing no-action letters and our proposal, multiple ABS informational and computational material for an offering may need to be filed. For example, if an underwriter provides a set of materials to an investor, and the investor then asks for and the underwriter provides an additional set of materials with the same pool and structure but with different modeling assumptions (
Consistent with the no-action letters, ABS informational and computational material would not be excluded from the definition of “offer,” “offer to sell,” “offer for sale” or “prospectus” under the Securities Act.
The staff no-action letters were issued when electronic filing on EDGAR was still in its relative infancy. At that time, EDGAR only accepted submissions in ASCII format. Participants argued that data included in computational material, which could be extensive, were in formats that were impractical to convert into ASCII format for electronic filing. In response, we amended our EDGAR filing rules to exempt computational materials filed as an exhibit to Form 8-K from electronic filing.
There have been several advances to EDGAR since the original staff no-action letters. In particular, EDGAR now accepts HTML documents in addition to ASCII documents and also accepts filings made over the Internet. Even non-ABS registrants now routinely include detailed statistical and tabular data in their EDGAR filings. We no longer believe that the filing of ABS informational and computational material needs an electronic filing exemption. Filing in paper form is of little practical use to investors as the material cannot be retrieved electronically.
Accordingly, we propose to eliminate the electronic filing exemption for these materials.
• We believe our proposed unified filing rule will result in better administration and compliance with the filing requirements. However, it is possible that under the proposal some collateral term sheets that are required to be filed today under the no-action letters would no longer be filed. For example, the current no-action letters require all collateral term sheets to be filed. However, the existing letters use overlapping definitions and it is thus difficult to distinguish what truly is a “collateral term sheet” versus what is acceptable “background information” that can be included in computational material, which is not always required to be filed. We also understand that current practice is to call such materials “computational material.” We are thus proposing to codify current practice and treat all ABS informational and computational material the same. However, is it common practice to prepare multiple collateral term sheets separate from computational materials? Would the lack of filing each collateral term sheet result in substantial harm due to a reduction in materials filed?
• Under the no-action letters and our proposals, not all materials need be filed. Should all material related to the offering be filed? Are the conditions for the material that is to be filed appropriate? Should filing requirements distinguish between material provided or containing information provided by the issuer, on the one hand, and materials provided by underwriters or dealers not containing such issuer information, on the other? If so, why, and how should the two be differentiated?
• The filing requirement does not require filing until the later of the filing of the final prospectus or two business days of first use. Should there be an earlier filing requirement, such as always two business days of first use, even if the deadline is before filing of the final prospectus? Conversely, while the proposed deadlines are consistent with the no-action letters, is there any reason to shorten or extend the deadlines, and if so, to what period?
• Are any additional clarifications or modifications needed on when or how such materials need to be filed?
• We request comment on liability requirements for ABS informational and computational material. While the existing liability framework does not appear to have chilled the use of such materials, is there any reason to re-evaluate the liability framework for them? If so, how and why?
• Should we not remove the EDGAR filing exemption for ABS informational and computational material? Are there particular difficulties or unreasonable expenses that would be associated with electronic filing of such material that would still exist under EDGAR? If so, please explain and quantify any such expenses in relation to other electronic filings.
The publication or distribution by a broker or dealer of information, opinions or recommendations with respect to an issuer or its securities around the time of a registered offering can present issues under the communications restrictions of the Securities Act, especially if the broker is or will be a participant in the distribution of the securities.
To recognize the potential benefits of research reports while limiting their potential misuse to promote a securities offering, the Commission has previously issued Securities Act Rules 137, 138 and 139. These rules create safe harbors that describe circumstances under which brokers or dealers may publish or distribute research reports in and around a registered offering without fear of violating Section 5 of the Securities Act through making an illegal offer or using a non-conforming prospectus. The existing rules look to the broker's participation in an offering, differences between the securities offered and those covered in the research report and the size and reporting history of the issuer.
However, the conditions in those rules do not correspond well to ABS offerings. For example, several of the requirements in the research rules, particularly Rule 139 (the applicable rule where the broker also is participating in the registered offering), require issuer size and reporting history requirements, neither of which are applicable to most asset-backed securities.
In response, the staff of the Division of Corporation Finance issued a no-action letter in 1997 to provide a separate safe harbor for the publication of research reports by brokers or dealers in and around offerings of asset-backed securities registered or to be registered on Form S-3.
As with the existing no-action letter, the proposed safe harbor would be available only with respect to ABS offerings registered on Form S-3. That is, it would only be available with respect to offerings of investment grade asset-backed securities that meet the requirements of General Instruction I.B.5 of Form S-3. Similar to our proposals for ABS informational and computational material and existing Rule 139, we believe offerings of securities meeting the additional requirements for Form S-3 registration represent the appropriate categories of offerings for the safe harbor.
Under our proposal, the publication or distribution by a broker or dealer of a research report with respect to investment grade asset-backed securities meeting the criteria of General Instruction I.B.5 of Form S-3 will not be deemed to constitute an offer for sale or offer to sell such asset-backed securities registered or proposed to be registered, even if the broker or dealer is or will be a participant in the registered offering, if the following conditions are met:
• The broker or dealer must have previously published or distributed with reasonable regularity information, opinions or recommendations relating to Form S-3 ABS backed directly (or, with respect to securitizations of other securities, indirectly) by substantially similar collateral as that directly or indirectly backing Form S-3 ABS that is the subject of the information, opinion or recommendation that is proposed to be published or distributed.
• If the securities for the registered offering are proposed to be offered, offered or part of an unsold allotment or subscription, the information, opinion or recommendation must not:
◦ Identify those securities;
◦ Give greater prominence to specific structural or collateral-related attributes of those securities than it gives to the same attributes of other ABS that it mentions;
◦ Contain any ABS informational and computational material relating to those securities.
• If the material identifies specific ABS of a specific issuer and specifically recommends that such ABS be purchased, sold or held by persons receiving such material, then a recommendation as favorable or more favorable as to such ABS must have been published by the broker or dealer in the last publication of such broker or dealer addressing such ABS prior to the commencement of its participation in the distribution of the securities whose offering is being registered.
• Sufficient information is available from one or more public sources to provide a reasonable basis for the view expressed by the broker or dealer with respect to the ABS that are the subject of the information, opinion or recommendation.
• If the material published by the broker or dealer identifies other ABS backed directly or indirectly by substantially similar collateral as that directly or indirectly backing the securities whose offering is being registered and specifically recommends that such ABS be preferred over other ABS backed by different types of collateral, then the material must explain in reasonable detail the reasons for such preference.
Not included in the above list of proposed conditions is a condition in the existing no-action letter that the research material must refer as required by law or applicable rules to any relationship that may exist between the issuer of the information, opinion or recommendation and any participant of the offering. A footnote in the incoming request for the no-action letter stated that the condition “contemplates statutory provisions such as Section 17(b) of the [Securities] Act or relevant SRO standards requiring disclosure of possible sources of bias.” Because the types of disclosures contemplated already are themselves separate regulatory requirements, we do not believe this additional condition is necessary for the safe harbor. Further, no similar condition exists in Rules 137, 138 or 139 even though the situation is analogous. However, our decision not to propose this condition here does not otherwise affect any requirement that would require disclosure of such relationships.
As with our proposal for the use of ABS informational and computational material, the staff has received several requests to liberalize the ABS research report safe harbor beyond the staff no-action letter.
• We request comment on the proposed safe harbor. We have reorganized and reordered the conditions from the staff no-action letter and altered the wording slightly to make them easier to read and consistent with terms used in our other proposals. We otherwise did not mean to change the intent or scope of the original no-action letter. Are any additional revisions necessary or would any additional clarifications be appropriate?
• We also request comment on the continued applicability of any of the conditions or whether any additional conditions are necessary. For example, should the condition regarding disclosures of additional relationships be retained?
• Our proposal, like the 1997 no-action letter, does not contain any instructions. Are any instructions or clarifications necessary for a codification of the ABS research report safe harbor?
• Is the limitation to offerings on Form S-3 still appropriate? If not, under what circumstances should the proposal be extended to offerings on Form S-1? In particular, are there any additional conditions that should be required for extending the safe harbor to Form S-1 offerings?
As discussed previously, post-issuance reporting regarding an asset-backed security is important to monitoring and understanding the performance of both the asset pool and transaction parties.
As most asset-backed securities are not presently listed and are held by less than three hundred record holders, most publicly offered asset-backed securities cease reporting with the Commission once they qualify for the automatic suspension. In the context of shelf registration statements where a new issuing entity is used for the issuance of each separate series of securities, a new reporting obligation is incurred with respect to those securities. Reporting regarding the asset-backed securities by that issuing entity may stop if those securities subsequently meet the suspension requirements of Section 15(d) of the Exchange Act (
Regardless of an ability to suspend reporting under the Exchange Act, ABS transaction agreements often require continued reporting of information to security holders. More and more issuers also are making such information available through their websites. Third party services continue to evolve to provide post-issuance performance data, although coverage may not be uniform.
Even though asset-backed securities are subject to an Exchange Act reporting obligation, the type and frequency of disclosure required under the Exchange Act with respect to operating companies generally is not relevant with respect to asset-backed securities. As a result, issuers of asset-backed securities have requested and received, first through Commission exemptive orders under the Exchange Act and later through scores of staff no-action letters, permission to modify the reports they may file to fulfill their reporting obligation.
Under the modified reporting system, in lieu of quarterly reports on Form 10-Q, reports on Form 8-K typically are filed based on the frequency of distributions on the asset-backed securities (predominantly monthly), which in turn generally match the payment frequency of the underlying pool assets. These filings include a copy of the servicing or distribution report required by the ABS transaction agreements that contains unaudited information about the performance of the assets, payments on the asset-backed securities and any other material developments that affect the transaction. Disclosure that otherwise would be required by certain items of Form 10-Q, such as legal proceedings, material uncured defaults and matters submitted to a vote of security holders, also are required for the Form 8-K distribution report for the period in which such events occurred.
In addition to these “periodic” filings on Form 8-K, current reports on Form 8-K also are required, but only for a narrow list of events. Insider reporting under Section 16 also is generally not required.
An annual report on Form 10-K is still required, but the information required is reduced and modified. Audited financial statements for the issuing entity are not generally required. In lieu of audited financial statements, the ABS issuer must file as exhibits to the Form 10-K a servicer compliance statement and a report by an independent public accountant. The servicer compliance statement addresses compliance by the servicer with its obligations under the servicing agreement for the reporting period. The accountant's report generally relates to the report required under the transaction agreements from an independent public accountant attesting to an assertion of compliance regarding particular servicing criteria.
As a result of implementation of the Sarbanes-Oxley Act, and in
We propose to codify the basic modified reporting system for asset-backed securities, including the forms to use and how they are to be prepared. As noted in Section III.A.4., we do not propose a separate Exchange Act reporting system for foreign ABS. Foreign ABS would report on Forms 10-K, 10-D and 8-K, the same as domestic ABS.
First we propose to clarify the definition of “issuer” with respect to the reporting obligation and the nature and operation of the Section 15(d) reporting obligation with respect to asset-backed securities. The relevant aspects of the definition of “issuer” under the Exchange Act are identical to the Securities Act definition.
Similar to our proposal for the Securities Act, we propose to clarify that the depositor for the asset-backed securities, acting solely in its capacity as depositor to the issuing entity, is the “issuer” for purposes of the asset-backed securities of that issuing entity.
This approach addresses the reality of ABS offerings by different issuing entities registered on the same shelf registration statement are not related. Furthermore, it places responsibility for Exchange Act reporting with the party most able to oversee the reporting requirements. Finally, this approach differentiates reporting with respect to each issuing entity, and thus each ABS transaction, and does not require continuous reporting with respect to transactions that would otherwise be able to suspend reporting.
Consistent with this proposal, we propose to identify who must sign Exchange Act reports. The particular requirements we propose are presented along with our other proposals for each report discussed below. The principle is that the depositor would be required to sign Exchange Act reports, although we would permit an authorized representative of the servicer to sign on behalf of the issuing entity as an alternative.
As discussed in more detail in the next section, a takedown of asset-backed securities by a new issuing entity triggers a new reporting obligation under Exchange Act Section 15(d). Separate EDGAR filing codes need to be established for the new issuing entity created at the time of each takedown to ensure that Exchange Act reports related to these ABS are filed under a separate file number from other ABS or from the depositor's or sponsor's own securities. Issuers should not “combine” reporting regarding multiple transactions in one report or with a report for the depositor's or sponsor's own securities.
In addition to clarifying who is the “issuer,” we propose to clarify several interpretive positions regarding the operation of the Section 15(d) reporting obligation with respect to asset-backed securities.
We also propose to codify the current position that the starting and suspension dates for any reporting obligation with respect to a takedown of asset-backed securities is determined separately for each takedown.
Finally, we propose a separate rule to address the separate Section 15(d) reporting obligation that may be involved in ABS transactions where the issuing entity holds a pool asset that represents the interest in or the right to the payments or cash flows of another asset pool.
Recognizing that these structures are designed solely to facilitate the structuring of the transaction, separate reports regarding the intermediate financial asset would provide no additional information to investors. Accordingly, we propose that no separate annual and other reports need be filed with respect to the intermediate financial asset's reporting obligation, if the following conditions were met:
• Both the issuing entity for the asset-backed securities and the entity that issued the financial asset were established under the direction of the same sponsor or depositor;
• The financial asset was created solely to satisfy legal requirements or otherwise facilitate the structuring of the ABS transaction;
• The financial asset is not part of a scheme to avoid registration or reporting requirements of the Act;
• The financial asset is held by the issuing entity and is a part of the asset pool for the asset-backed securities; and
• The offering of the asset-backed securities and the offering of the financial asset were both registered under the Securities Act.
The proposed rule would not affect any reporting obligation applicable with respect to the asset-backed securities, nor would it affect any obligation to provide information regarding the financial asset or the underlying asset pool in the ABS reports.
• We request comment on our proposed rule clarifying the “issuer” of asset-backed securities for purposes of the Exchange Act. In addition to or in lieu of the depositor, should another entity be considered the “issuer,” such as the sponsor, the servicer, the trustee or the issuing entity? What would be the bases for requiring the servicer to be the reporting entity?
• Should the ability to suspend reporting under Section 15(d) be revisited? For example, should it be a condition or required undertaking for registration statement form eligibility or for any of our other proposals that Exchange Act reporting will continue for the life of the asset-backed security? What would be the relative costs and benefits of such a requirement?
• We request comment on our proposed interpretive rules regarding the operation of the Section 15(d) reporting obligation. Should any of these positions be revised? Are additional interpretations or accommodations necessary?
• Should there be an accommodation for separate Section 15(d) reporting obligations that may exist as a result of the registration of an intermediate financial asset, such as in an issuance trust/SUBI structure? Does our proposed list of conditions adequately identify the relevant structures?
We do not propose to change how documents regarding asset-backed securities are to be filed on EDGAR. However, there have been inconsistencies by ABS issuers with respect to the filing of registration statements and annual and periodic reports on EDGAR, thus making it difficult and time-consuming for investors and others to locate documents related to particular asset-backed securities. As such, we are providing the following guidance on how to submit documents on EDGAR that will enable investors and others to locate material information about particular asset-backed securities more efficiently. This guidance clarifies existing practice regarding how documents are to be submitted on EDGAR.
Registration statements and annual and other periodic reports are filed in electronic format on EDGAR. Each entity that makes an EDGAR submission is assigned a Central Index Key code, or “CIK” code. For submissions to appear under the correct entity, the correct CIK code must be included in the EDGAR submission header.
Because typically no issuing entity exists at the time of filing, the depositor initially submits the registration statement registering the offering of an aggregate amount of asset-backed securities on EDGAR under its own CIK code. With each takedown of asset-backed securities by a new entity off the registration statement, a new reporting obligation under Exchange Act Section 15(d) is created. The EDGAR system will automatically generate a new CIK code and an Exchange Act reporting file number for the new entity when the depositor includes a “serial” tag in the header of the prospectus filed under Securities Act Rule 424(b) to report the takedown.
We are considering programming changes to the EDGAR system to permit the generation of a new CIK code and an Exchange Act reporting file number for a new issuing entity before the Securities Act Rule 424(b) prospectus is filed. Until these programming changes are made, such materials should be filed under the CIK code for which the Securities Act registration statement was filed, which is usually the depositor's CIK code. Note that if a new CIK code and Exchange Act reporting file number for the new issuing entity had been previously generated (
When these procedures are followed, the Rule 424(b) prospectus will appear under both the depositor's and the new issuing entity's CIK codes. The issuer in its capacity as depositor for newly created entities should prepare separate annual, periodic and other reports for each issuing entity and file such reports under the separate CIK code for each issuing entity.
The creation of new issuing entities by identifying the serial tag in the Rule 424 filing header effectively separates the reporting obligation of the depositor from that of the new entities. Filing separate annual, periodic and other reports for each issuing entity provides easier access to information on a particular issuing entity and its asset-backed securities, which will increase transparency of such information for investors as well as the market for these securities. Also, submitting separate Exchange Act reports under the issuing entity's CIK code will facilitate tracking of the respective issuing entity's reporting obligation, as well as when such reporting obligation may be suspended under Section 15(d) of the Exchange Act, if applicable.
Conversely, we do not believe providing required information for multiple issuing entities in a “combined” annual or periodic report containing information regarding multiple issuing entities of a single sponsor or depositor is consistent with these objectives.
• We request comment on any additional ways to make reporting on EDGAR less time-consuming or costly for ABS issuers while still providing an efficient and usable retrieval system for investors and the marketplace. For example, under the current system a filer must affirmatively indicate through a serial tag that a new issuing entity is being created when a prospectus is filed pursuant to Rule 424(b) to generate the new issuing entity's separate CIK code. Would it be more effective to require a mandatory serial tag for such filings or establish an “opt-out” system for the serial tag (in lieu of the current “opt-in” system)?
Under the modified reporting system, periodic distribution and pool performance information is generally filed on Form 8-K in lieu of filing quarterly reports on Form 10-Q. However, investors are not able to easily distinguish these Form 8-K reports from other reporting on Form 8-K, such as the reporting of extraordinary events or the filing of transaction agreements.
Form 8-K is not designed to be a report filed on a periodic basis. Accordingly, we propose one new form type for asset-backed securities, Form 10-D, to act as the report for the periodic distribution and pool performance information.
It is our understanding that in most ABS transactions, the trustee is the recipient and not necessarily the preparer of this information, and the depositor or the servicer is thus in a better position with respect to possession, responsibility and awareness of the information that would need to be reported. Our proposed
Consistent with the modified reporting system, the proposed disclosure content for Form 10-D would consist of the distribution and pool performance information for the distribution period as well as certain non-financial disclosures, similar to those required by Part II of Form 10-Q, that occurred during the period. The proposed menu of disclosure items for Form 10-D is presented in the following table:
The requirement with respect to distribution and pool performance information would require the registrant to provide the information required by proposed Item 1119 of Regulation AB and to attach as an exhibit to the Form 10-D the distribution report delivered to the trustee or security holders, as the case may be, pursuant to the transaction agreements for the related distribution date. Recognizing that the distribution report specified under the transaction agreements will likely contain most, if not all, of the disclosures about the distribution and pool performance that would be required by proposed Item 1119 of Regulation AB, any information required by that Item that was included in the attached distribution report would not need to be repeated in the Form 10-D. As a result, and as is typically the case today with distribution reports filed under Form 8-K, no additional information may be required in the Form 10-D with respect to distribution or pool performance if all of the required information was included in the attached distribution report. However, taken together, the attached distribution report and the information provided in the Form 10-D would need to contain all of the information required by Item 1119 of Regulation AB.
Proposed Item 1119 of Regulation AB would require a description of the distribution and the performance of the asset pool during the distribution period. Recognizing the variety of asset types that can be securitized and the variety of transaction structures that can be used, we do not propose a standardized format for the presentation of either the information required by Item 1119 of Regulation AB or the distribution report prepared under the transaction agreements. However, while the material characteristics will vary depending on the nature of the transaction, we believe there are certain broad categories of disclosure and examples of common characteristics that can be identified as representative of the material disclosure that should be provided and that is often provided today. Proposed Item 1119 of Regulation AB would set forth examples of such information based on the disclosures currently provided under the modified reporting system. The actual disclosure to be provided would need to be tailored to the asset pool and transaction involved. In addition, appropriate introductory and explanatory information should be provided to introduce material terms, parties and abbreviations used, and statistical information should be presented in tabular and graphical formats, if such presentations will aid understanding.
Examples of material characteristics in proposed Item 1119 of Regulation AB, which are based upon disclosures commonly provided today, include:
• Applicable record dates, accrual dates, determination dates and distribution dates.
• Cash flows received and their sources (including portfolio yield, if applicable).
• Calculated amounts and distribution of the flow of funds for the period itemized by type and priority of payment, including fees and expenses, payments with respect to enhancement, distributions to security holders and excess cash flow.
• Beginning and ending principal balances of the asset backed securities.
• Beginning and ending balances of transaction accounts, such as reserve accounts, and account activity during the period.
• Amounts drawn on any credit enhancement or other support and amounts still available.
• Updated pool composition information for the period, such as the number and amount of pool assets at the beginning and ending of each period, weighted average coupon, weighted average life, weighted average remaining term, pool factors, prepayment amounts, current payment/prepayment speeds and other prepayment or interest rate sensitivity information.
• Delinquency and loss information for the period.
• The amount, terms and purpose of any advances made or reimbursed during the period.
• Material modifications, extensions or waivers to pool asset terms, fees, penalties or payments.
• Breaches of material pool asset representations or warranties or transaction covenants.
• Information on ratio, coverage or other tests used for determining any early amortization, liquidation or other performance trigger and whether the trigger was met.
Because we are proposing to expand the availability of prefunding periods, revolving periods and master trusts, we also propose to expand the related periodic disclosure regarding these structures to include information regarding any new issuance of asset-backed securities backed by the same asset pool and any pool asset additions, removals, substitutions and repurchases, such as through a prefunding or revolving period. Such information would include any material changes in solicitation, credit-granting, underwriting, origination, acquisition or pool selection procedures.
Further, if the addition, removal or substitution of pool assets had materially changed the composition of the asset pool as a whole, updated pool composition information would be required to the extent such information had not been provided previously. Such information would include information required by proposed Items 1107, 1109, 1110 and 1111 of Regulation AB applied
Regarding the other proposed disclosure items for Form 10-D, the information regarding legal proceedings, sales of securities, use of proceeds, submission of matters to a vote of security holders, defaults on senior securities and other information is consistent with the non-financial disclosures in Form 10-Q that are required under the modified reporting system.
Proposed Items 6 and 7 of Form 10-D would require updated financial information about significant obligors and providers of enhancement, to the extent updated information was required. Such information only would need to be included in the first distribution report filed after updated financial information regarding the third party would be required under Regulation S-X. Reports for periods in which updated information would not be required would reference the previous filing that included the most recent information. As discussed in Section III.B.9., alternative methods may be available, subject to conditions, to present information regarding the third party, such as through incorporation by reference or by including a reference to the third party's Commission filings.
Similar to recent revisions to Form 10-Q, we propose to provide that if any event occurs that required the filing of a Form 8-K during the period covered by the particular distribution report, but was not disclosed on Form 8-K, the Form 10-D must include the disclosure prescribed by the relevant Form 8-K item for the period during which that event occurred. Like Form 10-Q, this would apply to all Form 8-K items, including those covered by the recently enacted Form 8-K safe harbor from liability under Exchange Act Section 10(b) or Rule 10b-5 for failure to timely file certain Form 8-K reports.
• We request comment on proposed Form 10-D. Would a separate form type for distribution reports be beneficial? Should additional parties be permitted to sign the report? Is there any additional identifying information that should be provided on the cover page?
• What should be the appropriate deadline for Form 10-D reports? Given that the Form 10-D will in most cases consist only of the distribution report and also given advancements in technology, should the proposed 15-day deadline be shorter (
• As an alternative to the current system, should it be required (
• Should the frequency of the Form 10-D report be based on the payment or collection frequency of the underlying pool assets, regardless of the distribution frequency of the asset-backed securities, so that updated pool performance information is included? How often do payments on the asset-backed securities not match payments on the underlying pool assets?
• The modified reporting system did not clearly contemplate any filing extensions for distribution information, such as those available under Exchange Act Rule 12b-25.
• We request comment on the manner of presenting distribution and pool performance information. Should the distribution report required by the transaction agreements still serve as the primary method for presentation of this information? Are there better alternatives to our proposal regarding the interaction between Form 10-D and that report? Should the presentation of any information be standardized?
• Are there any modifications that should be made to the list of representative items that should be disclosed regarding the distribution or asset performance? In particular, are there additional items that should be added or should any proposed items be deleted? For example, what amount of detail regarding updated pool composition information should be specified? Should there be a requirement to update all or some part of the information required by proposed Item 1110 of Regulation AB? Should any of the representative items be specifically mandated for disclosure and not just as examples of representative material disclosure?
• Our proposed disclosure regarding changes to the asset pool, such as those that involve a master trust or a prefunding or revolving period, could result in additional disclosures from those that are currently provided today, particularly regarding material changes to the composition of the asset pool. Are these disclosures desirable? Are there alternatives to provide this information to investors? Should some or all of this information instead be filed on a more current basis on Form 8-K? Is the exception for providing this information if it is provided in a Rule 424 prospectus filed under the same CIK code appropriate? Should disclosures only be required if the pool differs materially by a certain percentage from the original pool? Should there instead be an express limitation in the definition of asset-backed security that pool changes may not materially alter the characteristics of the asset pool or alter the characteristics by some set percentage (
• If a previous filing, including the registration statement or ABS informational and computational material, included the
• We also request comment regarding the proposed other disclosure items for Form 10-D. Should any additional disclosures be required (
Similar to our proposed general instructions for Forms S-1 and S-3, we propose a separate general instruction for Form 10-K to specify how that form is to be used for an annual report with respect to asset-backed securities.
The proposed instruction would clarify who is to sign the Form 10-K. Consistent with the existing requirements for who must sign the Sarbanes-Oxley Section 302 certification, the report would need to be signed either on behalf of the depositor by the senior officer in charge of securitization of the depositor, or on behalf of the issuing entity by the senior officer in charge of the servicing function of the servicer. If a servicer was to sign the report on behalf of the issuing entity and multiple servicers were involved in the servicing of the pool assets, the senior officer in charge of the servicing function of the master servicer (or entity performing the equivalent functions) would sign. For the same reasons as the Form 10-D, we do not propose to permit the trustee to sign the report as an alternative to the depositor or the servicer.
The proposed general instruction would identify the existing items in the form that may be omitted as well as substitute items from proposed Regulation AB that would be required. Any other applicable items specified in Form 10-K would continue to be required.
As noted in the table above, security ownership information required by Item 403(a) of Regulation S-K would be required. In addition, if the issuing entity had its own executive officers, board of directors or persons performing similar functions, all of Item 403 of Regulation S-K, as well as Items 401, 402 and 404 of Regulation S-K, would be required. As discussed in Section III.B.1., we do not propose to require audited financial statements for the issuing entity, nor do we propose to add reporting requirements regarding internal control over financial reporting.
Regarding the proposed items to be included from Regulation AB, information about legal proceedings
We propose to codify the requirement in the modified reporting system that a servicer compliance statement must be filed as an exhibit to the Form 10-K.
Like the existing requirement under the modified reporting system, the proposed servicer compliance statement would be a statement, signed by an authorized officer of the servicer, to the effect that a review of the activities of the servicer and its performance under the servicing agreement had been made under the officer's supervision, and that to the best of the officer's knowledge and except as otherwise disclosed, the servicer has fulfilled its obligations under the agreement in all material respects throughout the reporting period. If multiple servicers were involved in servicing the pool assets, a separate compliance statement would be required from each servicer that meets the criteria in proposed Item 1107(a) of Regulation AB (
• We request comment on the proposed general instruction to Form 10-K. Should additional or different parties be permitted to sign the report? Should the designated person to sign be someone else, such as the entity's principal executive officer?
• Is the proposed menu of disclosure items appropriate? Should any additional items be included or omitted? Is the proposed presentation of this menu clear? Are there any additional instructions that should be included for ABS offerings?
• Should updated pool composition information be required for the Form 10-K? For example, several modified reporting no-action letters require aggregate distribution and pool performance information for the reporting period. Should such disclosure be required for the Form 10-K? Should there be a requirement to update and restate all or some part of the information required by proposed Item 1110 of Regulation AB, such as static pool information?
• Should specific financial information be required regarding any transaction parties, such as the sponsor, servicer or issuing entity? If so, for which parties should information be required? What information should be required (
• We request comment on the proposed servicer compliance statement. Would such a statement still be beneficial? In particular, would this compliance statement still be necessary given the Sarbanes-Oxley Section 302 certification and the proposed assessment of compliance with servicing criteria?
• If multiple servicers are involved, should additional statements be required by servicers other than the master servicer? Is the proposal to require each Item 1107(a) servicer to submit a compliance statement appropriate? Should compliance statements be limited to only the master servicer? Should servicer compliance statements be required for Form 10-D's as well?
In June, 2003, the Commission adopted amendments to its general rules relating to certifications required by the Sarbanes-Oxley Act, including providing the form of the Section 302 certification in the exhibit requirements in Item 601 of Regulation S-K.
In specifying the form of the ABS Section 302 certification, we propose several amendments to the form provided in the revised staff statement to reflect our other substantive Exchange Act proposals.
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of [identify the issuing entity];
2. Based on my knowledge, the information in these reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in those reports;
4. [I am responsible for reviewing the activities performed by the servicer(s) and based on my knowledge and the compliance review conducted in preparing the servicer compliance statement required in this report under Item 1121 of Regulation AB, and
[Based on my knowledge and the servicer compliance statement required in this report under Item 1121 of Regulation AB, and except as disclosed in the reports, the servicer has fulfilled its obligations under the servicing agreement; and]
5. This report discloses all material instances of noncompliance with the servicing criteria as provided in Item 1120 of Regulation AB based on an assessment of compliance with such criteria.
[In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties [name of servicer, sub-servicer, co-servicer, depositor or trustee].]
Compared to the revised staff statement, paragraphs 1 and 3 would be revised to reflect the addition of proposed Form 10-D and the fact that the certification covers the information filed in those distribution reports rather than Form 8-K. Paragraph 4 would refer to the servicer compliance statement that would be explicitly required by our rules. In addition and consistent with the revised staff statement, two alternatives would be provided for paragraph 4 depending on who was signing the Form 10-K report. The first version would be used when the servicer was signing the report on behalf of the issuing entity. The second version would be used when the depositor was signing the report. Paragraph 5 of the certification would be revised to refer specifically to our proposed assessment of compliance with servicing criteria. Consistent with the nature of that proposal and consistent with our recent amendments to our certification requirements,
Because asset-backed issuers do not typically have a principal executive officer or principal financial officer, the signature requirements for the ABS certifications differ from other issuers. Consistent with the revised staff statement, our proposed amendments would specify who must sign the certification. We propose that the certification must be signed by either the senior officer in charge of securitization of the depositor if the depositor is signing the Form 10-K report, or the senior officer in charge of the servicing function of the servicer if the servicer is signing the Form 10-K report on behalf of the issuing entity.
These signature requirements are consistent with our proposal for who must sign the Form 10-K and who must make the assessment of compliance with servicing criteria. The same person that signs the Form 10-K must sign the Section 302 certification. As we are not proposing to permit the trustee to sign the annual report, we do not propose the third alternative in the revised staff statement of allowing a representative of the trustee to sign the Section 302 certification.
Consistent with the revised staff statement, we propose to include an instruction to the certification to clarify that because the signer of the certification must rely in certain circumstances on information provided by unaffiliated parties outside of the signer's control, the signer in such situation may reasonably rely on information that unaffiliated trustees, depositors, servicers, sub-servicers or co-servicers have provided. As is the case today, if the signer does so, it would need to provide an additional statement in the certification identifying the unaffiliated parties on which the signer reasonably relied. Like the revised staff statement, we do not propose to specify the manner in which reasonable reliance may be established. The reasonable reliance instruction for the Section 302 certification would not be applicable with respect to affiliated parties, nor would it be applicable with respect to information from the registered public accounting firm performing the attestation on the assessment of compliance with servicing criteria.
• We request comment on the certification requirements for ABS filings. Are any modifications needed to the form of certification? For example, is paragraph 5 necessary if the proposed assessment of compliance with servicing criteria is adopted? Are any modifications necessary for particular types of ABS transactions?
• Should additional or different persons be permitted to sign the proposed certification? For example, should we permit the trustee to sign the certification? Should both the depositor and the servicer sign a certification? Should the designated person to sign for an entity be someone else, such as the entity's principal executive officer?
• Because they would be filing Form10-D distribution reports, ABS issuers would be exempt from filing Form 10-Q quarterly reports. Should each Form 10-D be certified directly rather than at the end of the fiscal period?
• Is the reasonable reliance instruction necessary?
As noted above, the modified reporting system does not require audited financial statements for the issuing entity in the annual report on Form 10-K, but instead requires a report by an independent public accountant regarding servicing. This framework was developed based on the recognition that one of the most important elements affecting an investor's assessment of a particular asset-backed security is the performance of the servicer and that an independent third party checking some aspect of the servicing function provides a certain level of assurance and transparency regarding the servicer's performance.
The form of reporting and accountant involvement varies based on the no-action letter relied upon in preparing the Form 10-K. The most common example involves an assessment and assertion by the servicer of compliance with standard servicing criteria and an examination-level attestation of the servicer's assertion by an independent public accountant. This disclosure-based system identifies for investors those aspects of the standard servicing criteria with which the transaction is in material compliance.
Another form of reporting that is used more rarely to fulfill the modified reporting requirement involves the performance of certain detailed agreed-upon procedures by an independent public accountant.
Most assertions on and disclosure regarding compliance with servicing criteria are based on criteria set forth in the Uniform Single Attestation Program for Mortgage Bankers, or USAP, developed by the Mortgage Bankers Association of America (MBA).
A task force of the MBA created the USAP during the early stages of development of securitization as a mortgage financing technique to provide uniform minimum criteria against which the servicing of mortgage-backed securities could be assessed. It was created at a time when most securitizations consisted of either simple pass-through or pay-through structures of simple pools of residential mortgages. As new, more-complex ABS transactions were introduced into the marketplace and additional asset types were securitized, the USAP, in the absence of any other well-recognized criteria, continued to be used as the default criteria for assessment and disclosure of servicer performance.
The USAP describes uniform minimum servicing criteria against which a servicing entity is to assess material compliance. In general, the servicer's management will make a written assertion about compliance with the USAP minimum criteria for a particular period (usually a year). The accountant engaged to perform the examination engagement will evaluate the servicer's assertion regarding compliance with the minimum servicing criteria.
In an examination of an assertion on compliance with the USAP's minimum servicing criteria, an accountant seeks to obtain reasonable assurance regarding the assertion that there has been compliance, in all material respects, with those minimum criteria. Unlike an agreed-upon procedures engagement, specific findings (or exceptions) are not reported under a USAP Report unless the accountant concludes that the assertion is not fairly stated in all material respects.
While the USAP has by default become the dominant criteria to assess servicing compliance for purposes of fulfilling the accountant report requirement of the modified reporting system, it has significant limitations in the context of ABS reporting. The USAP was originally written to address compliance criteria related to residential mortgage loan servicing. Over time, it has been extended to other ABS transactions, such as those involving auto loans. However, the USAP's minimum servicing criteria may not adequately capture the needs of investors in ABS transactions other than mortgage-backed securities. Some of the USAP criteria may not be applicable to these other asset types (
Another difficulty with the current criteria is that they do not clearly address the totality of activities and parties involved in servicing an ABS transaction, even for mortgage-backed securities. The USAP does not completely address the full spectrum of servicing functions, including allocation and distribution functions, that are important in an ABS transaction, particularly as the complexity of flow of funds calculations has increased. In addition, the current system does not contemplate the fact that multiple unaffiliated parties may be involved in servicing an asset-backed security. Accordingly, the current system does not place responsibility for assessing compliance for all aspects of the servicing function with a single party to help assure that they are addressed, which is especially important if multiple parties are involved. As a result, the current system potentially leaves gaps in servicing compliance reporting.
We have previously noted the need to focus attention on the role of the servicer in the performance of an ABS transaction.
Similarly, we believe a meaningful assessment and assertion of compliance with a single set of transparent and comprehensive servicing criteria, attested to by an independent third party under recognized professional standards, would provide material information to investors in monitoring the transaction and thus their investments. Investors will be better able to evaluate servicing responsibilities and performance and the reliability of the information they receive. Additionally, the assessment should help to identify potential weaknesses that may adversely affect security holders. We believe that an assessment and attestation regarding servicing compliance achieves these objectives more directly and efficiently than an audit of financial statements or reporting on internal control over financial reporting.
The current modified reporting system does not provide complete transparency as to what is expected of issuers, servicers, accountants and other parties. While the varying no-action letters on this subject need uniform codification, the principal weakness in the current system is the lack of suitable servicing criteria on which reporting can be based. The result has been vast inconsistencies in the type of reporting provided, diminishing its usefulness, relevance and comparability.
As a result, we are proposing to enhance the current framework for reporting on compliance with servicing criteria. Specifically, we are proposing to require an assertion by a “responsible party,” which we define in Section III.D.7.b.ii. to be the same entity whose officer signs the report on Form 10-K and makes the Section 302 certification, on compliance with specified servicing criteria in a report filed as an exhibit to the ABS issuer's report on Form 10-K. Further, this proposal contemplates that a registered public accounting firm will issue a report on the responsible party's assertion of compliance with the servicing criteria, and such report will be filed along with the responsible party's assertion as an exhibit to the report on Form 10-K.
As discussed in Section III.D.7.b.vi., we are initially proposing to put forward a single set of servicing criteria for the responsible party and the registered public accounting firm to use in assessing and reporting on servicing compliance, although we request comment on alternative approaches. In particular, as discussed below, we are interested in whether there could be other sources of suitable servicing criteria that could be developed with appropriately objective inputs and appropriate due process that could be alternatives to our proposal. Our proposed disclosure-based criteria are designed to be incrementally broader than the servicing criteria that are generally used today for reporting on servicing compliance, such as those contained in the USAP. We propose that this reporting framework would apply to all ABS issuers. Accordingly, ABS transactions that have historically used other forms of reporting to fulfill the accountant's report requirement pursuant to no-action letters, such as those that use USAP Reports or engage an accountant to perform certain agreed-upon procedures, would use the proposed disclosure-based criteria to satisfy Exchange Act reporting requirements.
If a material instance of noncompliance exists, the proposal would provide investors with information of that fact to assist them in making their investment decisions. We do not propose that material instances of noncompliance with the proposed criteria would have regulatory restrictions on market access, such as an effect on continued form eligibility under the Securities Act for additional ABS transactions.
We propose Item 1120 of Regulation AB to require as an exhibit to the Form 10-K report a report of the responsible party on an assessment of compliance with the proposed servicing criteria, discussed more fully in Section III.D.7.b.vi.
• A statement of the responsible party's responsibility for assessing compliance with the servicing criteria.
• A statement that the responsible party used the servicing criteria to assess compliance with the servicing criteria.
• The responsible party's assessment of compliance with the servicing criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K report. The report must include disclosure of any material instance of noncompliance identified by the responsible party.
• A statement that a registered public accounting firm has issued an attestation report on the responsible party's assessment of compliance with the servicing criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K report.
New Exchange Act Rules 13a-18 and 15d-18 would require that a “responsible party” must perform an assessment of compliance with the servicing criteria.
The report contemplated by this proposal would include an assessment of the servicing function for a full fiscal period, rather than just at a point in time. This approach is consistent with the current requirements set forth in the USAP and in other attestation examinations filed with the Commission following the modified reporting system.
Under the modified reporting no-action letters, different practices have developed regarding the type and scope of the assessment of compliance with servicing criteria. While an assessment of compliance on a transaction-by-transaction basis would provide the most particularized information, current practice appears to lean towards assessment of a given servicer's compliance with servicing criteria in respect of the “platform” through which it carries out its servicing activities for all transactions (or all transactions involving a particular asset class). In light of current practice and servicers' focus on overall compliance with standards at the platform level, we are proposing to accept a “platform” level assessment for purposes of this requirement.
As such, the proposal contemplates an assessment of compliance with respect to all asset-backed securities transactions involving the responsible party that are backed by assets of the type backing the asset-backed securities covered by the Form 10-K report. This “platform” level assessment would permit a single assessment and assertion regarding compliance as compared to requiring separate assessments for each individual transaction involving the responsible party, which would be more costly and might be administratively burdensome. The responsible party, as well as the registered public accounting firm with respect to the attestation engagement, would need to determine the amount of work that would need to be performed to be able to assess compliance with the servicing criteria for the responsible party's servicing of ABS transactions for the same asset class taken as a whole.
We do not propose to specify how a responsible party should determine whether there is a material instance of noncompliance with the servicing criteria. In particular, we do not propose to specify the particular controls, policies or procedures that would be required in order to assert that material compliance with the servicing criteria had been achieved. We believe that each responsible party should be afforded the flexibility to design controls, policies and procedures to fit its particular circumstances.
As discussed in Section III.B.2., the servicing of an asset-backed security consists of many functions, including collecting principal, interest and other payments from obligors; paying taxes and insurance from escrowed funds; monitoring and accounting for delinquencies; executing foreclosure if necessary; temporarily investing funds pending distribution; remitting fees and payments to enhancement providers, trustees and others providing services; and allocating and remitting distributions to security holders. Each of these functions can represent a material element of ABS performance.
In addition, the servicing function may be performed by a single party or by multiple parties (
To address this issue, we propose that the responsible party would assess material compliance with all of the servicing criteria. The responsible party would be required to use reasonable means to assess whether the parties performing the servicing functions that are material to the servicing function as a whole (
Like the responsible party's own assessment, the information from the unaffiliated party also could be at a “platform” level of assessment with respect to ABS or pool assets serviced by that party, thereby facilitating a single assessment and report or other information that could be delivered to multiple responsible parties for purposes of their assessments. For example, if a trustee is responsible for disbursing cash to investors, the trustee could assess compliance with the appropriate servicing criteria and then send a single examination report as to its material compliance with those criteria to multiple responsible parties. Those responsible parties could reasonably rely on such report to assess and assert material compliance as to those criteria with respect to the responsible party's own platform level assessment.
Currently, the only generally used criteria for assessing and reporting on servicing compliance is the USAP. However, as previously discussed, the USAP was not designed for the breadth of asset classes included in ABS offerings. It also does not address aspects of the servicing function that may be important in servicing asset-backed securities.
The Commission staff is not aware of another framework currently available for use in the ABS market. However, we believe an assessment of and reporting regarding compliance with a single set of transparent and comprehensive servicing criteria and the involvement of an independent third party to attest to
If other suitable criteria were to be developed for use in assessing servicing compliance, we would consider such criteria for purposes of the proposed requirement. A suitable framework would need to: Be established by a group or body that has followed due process procedures; be free from bias; permit reasonably consistent qualitative and quantitative measurements; be sufficiently complete so that relevant factors that would alter a conclusion about the subject matter were not omitted; and be relevant to the subject matter.
We invite comment on whether suitable criteria could be developed by others to meet the objectives of our proposal. Who would develop such criteria? What would be the process in developing such criteria? What would be the timeframe to develop such criteria? Should we provide flexibility in any final requirement that would allow for substitution of alternate suitable criteria that meet certain requirements? What requirements would be appropriate?
The disclosure-based servicing criteria we propose are designed to be incremental to the current criteria in the USAP. Accordingly, many of the proposed servicing criteria are not new. Criteria noting specific timeframes, such as two business days, mirror for the most part the current criteria in the USAP. Those servicing criteria that are incremental to the USAP criteria were developed based on staff study and experience with ABS transactions, including experience gained through the filing review process and the 2003 MBS Disclosure Report.
The servicing criteria we propose consist of four broad categories: General servicing considerations; cash collection and administration; investor remittances and reporting; and pool asset administration. These categories describe major components of the servicing function. Each category contains servicing criteria that have been designed to have general applicability to the servicing of all asset-backed securities. The complete criteria are set forth in the text of paragraph (d) of proposed Item 1120 of Regulation AB. We are seeking comment on the specific criteria set out in the proposed regulatory text. As noted above, some servicing criteria may be more or less applicable depending on the type of asset underlying the ABS transactions. Further, certain servicing criteria have been designed to rely upon the transaction agreements to set forth how certain aspects of the servicing function should operate. As such, the servicing criteria do not necessarily set forth specific details of the servicing function that must exist (
The proposed servicing criteria are summarized as follows:
• Maintaining specified collateral;
• Administering changes to the asset pool;
• Posting payments and other changes regarding pool assets;
• Instituting loss mitigation or recovery actions;
• Administering funds held in trust for an obligor, if required for the pool assets; and
• Maintaining external credit enhancement or other support.
Because of the unique and fluid nature of the ABS market, our proposal provides discretion to the responsible party to exclude those servicing criteria that are inapplicable to the servicing of a particular asset class. If certain servicing criteria are not applicable in the context of the asset class backing the asset-backed securities, the inapplicability of the criteria would need to be disclosed in the responsible party's and the registered public accounting firm's reports. This flexibility should not be used to voluntarily exclude otherwise applicable criteria from an assessment of compliance.
If the responsible party's report on compliance with servicing criteria identified any material instance of noncompliance with the criteria, disclosure would be required in the Form 10-K report of any material impacts or effects that have affected or that may reasonably be likely to affect pool asset performance, servicing of the pool assets or payments or expected payments on the asset-backed securities. As noted above, the period to be covered by the report is consistent with the current practices of assessing compliance as of and for the period ending on a particular date. This is different from reporting regarding internal control over financial reporting under Section 404 of the Sarbanes-Oxley Act, which speaks as of a particular date only. Thus, under our proposal and consistent with general practice today, disclosure would be required of material instances of noncompliance during the reporting period, even if such noncompliance was subsequently corrected in the period. We believe this approach is consistent with our proposal not to require interim evaluations and reporting of compliance or disclosures of changes in reports (
Under the proposal, a registered public accounting firm would be required to attest to, and report on, the assessment of compliance made by the responsible party through performance of an examination engagement.
As noted above, the registered public accounting firm's report would need to be filed as an exhibit to the report on Form 10-K.
We are proposing conforming amendments to Regulation S-X to reflect the attestation report that will be prepared by a registered public accounting firm and to require an ABS issuer to file the attestation report with the report on Form 10-K. Under these proposed amendments, a new “Attestation report on assessment of compliance with servicing criteria for asset-backed securities” would be defined as a report in which a registered public accounting firm expresses an opinion, or states that an opinion cannot be expressed, concerning the proposed assessment of compliance by a responsible party with servicing criteria, in accordance with standards on attestation engagements.
This proposal contemplates that the report issued by the registered public accounting firm will be available for general use and will not contain restricted use language. We believe that the proposed servicing criteria would be suitable criteria, as that term is defined in SSAE No. 10, and are available to enable a registered public accounting firm to issue a report on the responsible party's assertion without restricted use language.
• We request comment on our proposal. Should the Commission specify the form of reporting required in ABS annual reports? For instance, should certain ABS transactions be allowed to use a form of agreed-upon procedures to fulfill the accountant report requirement of the modified reporting system? If so, why? If any additional reporting by an accountant is required by the transaction agreements, should we allow or require it to be filed as an exhibit to the Form 10-K or otherwise described?
• Would audited financial statements of the ABS issuer or servicer be more useful to an ABS investor than a report on servicing compliance and related attestation report by a registered public accounting firm?
• Should there be any revisions to the proposed requirements for the responsible party's report or the accountant's report?
• We request comment on our proposed definition of “responsible party.” Should any other entities ever be the “responsible party” (
• In lieu of a single assessment of compliance at the servicing “platform” level, should separate assessments of compliance be required with respect to each transaction? Does a “platform” level assessment provide adequate assurance even if no testing was performed at the individual trust level for the particular Form 10-K report? What would be the relative costs of a “transaction” level requirement in relation to the incremental benefits?
• How should unaffiliated parties be treated with respect to the assessment of compliance? Is the proposed approach of having a single responsible party assess material compliance with all of the servicing criteria, regardless of the actual party that performs the criteria, appropriate? Is it appropriate to allow the responsible party to reasonably rely on information from unaffiliated parties to make its own assessment? Is more guidance necessary on
• What alternative approaches would be preferable to the proposed single party approach and why? For example, should separate reports be required for all parties that perform the respective criteria? If so, how will an investor have confidence that all criteria have been assessed? Instead, should the responsible party only assess compliance against the criteria it or an affiliate performs and assess compliance with an additional criterion that it has received reports from unaffiliated parties that perform the other criteria? How should exceptions noted in the unaffiliated parties' reports or the inability to obtain reports be treated? Should the Commission specify the type of reporting that unaffiliated parties must use?
• Is reporting by the accountant on the responsible party's assertion of compliance that covers the entire servicing function feasible? Should an approach be considered that would enable an accountant to make reference to the attestation or other procedures performed by another accountant performing procedures on parts of the servicing function, similar to the approach considered by AU § 543, “Part of Audit Performed by Other Independent Auditors?” Would additional guidance be required to make such an approach operational outside the context of a financial statement audit? Do other analogous instances of such reporting already exist?
• Should material instances of noncompliance have regulatory ramifications, such as on Securities Act form eligibility?
• Is the period to be covered by the report appropriate? Should disclosure be required of material instances of noncompliance during the period, even if subsequently cured? Should there be a requirement to make an assessment and report on compliance regarding any interim periods?
• Has the Commission considered all of the servicing criteria in its proposed framework that are important to ABS servicing? If not, what additional criteria should be included in the framework? Answers should provide specific language relating to specific criteria.
• Are some of the servicing criteria included in the Commission's proposed framework more costly than the benefit they provide to investors? Should any of the criteria be modified? Any suggested modifications should provide specific language. We request particular comment on quantification of the costs that would be involved in the proposal.
• Are any of the servicing criteria not subject to objective evaluation for purposes of the responsible party's assertion regarding compliance and the registered public accounting firm's attestation on the assertion regarding compliance? If so, how could they be revised?
• Are there some asset classes or transaction structures where the proposal would not be operational? What alternatives would be appropriate?
• Should additional guidance be given regarding how a responsible party is to determine whether there is a material instance of noncompliance?
• Should disclosure regarding the effects of material instances of noncompliance be required in the Form 10-K report? Should we specify a particular place where this disclosure should appear? Is there any additional information that would be material? For example, should there be disclosure of any identified instances of noncompliance that would be material to the transaction but were not material to the responsible party's overall “platform” such that the instances of noncompliance were not noted in the responsible party's overall assertion?
• Should the attestation report be required to be by a registered public accounting firm? What alternatives would be appropriate? Should a non-accountant be permitted to perform the attestation? If so, what would be the professional standards such an entity would use to attest to the assertion of compliance?
As discussed in Section III.D.7.b.vii., under our proposal a responsible party may determine that a servicing criterion is inapplicable in the context of servicing a particular ABS transaction and exclude that servicing criterion from its assessment. Otherwise, there would not be flexibility to voluntarily exclude servicing criteria from the assessment. However, we do seek comment on an alternative approach that would permit a responsible party to voluntarily determine which specific servicing criteria to exclude from its assessment (even if they were otherwise applicable to the particular asset class), so long as any excluded criteria were disclosed and the reason for their exclusion was also disclosed. Under this alternate approach, it would be up to the market to decide the weight to attach to any particular criterion in evaluating a transaction where that criterion was excluded.
• In exploring such an approach, we seek comment on whether such an approach would be operational and result in useful information to investors.
• Should disclosure of the reasons for the exclusion be required? How could we avoid boilerplate disclosures?
• How should the list of excluded items be presented? Would a list of what was included be better? Should a table or checklist be required clearly indicating what was included or excluded?
• Should it be a requirement that the original registration statement or base or preliminary prospectus for the particular offering identifies the particular servicing criteria that will be excluded?
On March 11, 2004, the Commission adopted amendments to expand the number of events that are reportable on Form 8-K.
Similar to Form 10-K, we propose a general instruction to Form 8-K to specify how the form is to be used with respect to asset-backed securities. Like the Form 10-D, the proposed instruction would permit either the depositor or the servicer to sign Form 8-K reports. The depositor's name and sponsor's name would need to be listed on the cover page of the Form 8-K. The instruction also would identify which of the existing items may be omitted. Any other applicable items specified in Form 8-K would continue to be applicable under existing reporting deadlines. We also propose several ABS-specific items under Section 6 of Form 8-K, discussed below. The resulting application of the Form 8-K items for ABS is presented in the following table:
We propose several clarifying instructions to the existing items that would remain applicable for ABS. For example, we propose to clarify that a reportable event under Items 1.01 and 1.02 also would include the entry into, modification of or termination of a material transaction agreement, even if the issuing entity was not a party to the transaction, such as a servicing agreement. A proposed instruction to Item 1.03 would clarify that disclosure also would be required under that item if the depositor (or servicer if the servicer signs the report on Form 10-K on behalf of the issuing entity) becomes aware of the entry of bankruptcy or receivership of the sponsor, depositor, servicer, trustee, significant obligor, significant enhancement provider or other material party involved in the ABS transaction. A proposed instruction to Item 2.02 would reference that disclosure made in a distribution report filed with the Commission on proposed Form 10-D would not trigger disclosure under that item. A proposed instruction to Item 2.04 would clarify that a reportable event also would include the occurrence of an early amortization, performance trigger or other event, including an event of default, that would materially alter the payment priority or distribution of cash flows regarding the asset-backed securities or the amortization schedule for the asset-backed securities. We would clarify that the applicable accountant to which Item 4.01 relates would be the accountant engaged to provide the attestation report on assessment of compliance with servicing criteria. Finally, for Item 5.03 regarding amendments to governing documents, an instruction would clarify that regardless of the basis of reporting (Section 13 or 15(d)), any amendment to the governing documents of the issuing entity of the asset-backed securities would trigger disclosure under that Item.
We propose to add several new ABS-specific reportable events to Form 8-K. These new items would be grouped under Section 6 to the Form. As with the existing Form 8-K items, we believe that, with the exception of the proposed Item regarding ABS informational and computational material, which is designed to facilitate the categorization of Form 8-K disclosures, these proposed items represent events that unquestionably or presumptively have such significance that timely disclosure should be required. All of the proposed items, except for proposed Item 6.01, would have a four business day reporting deadline similar to other Form 8-K reportable events. Filing deadlines with respect to proposed Item 6.01 would be pursuant to our proposals for filing ABS informational and computational material discussed in Section III.C.1.
The following is a discussion of the proposed new items.
This proposed Item would set forth a Form 8-K item to report any ABS informational and computational material filed in connection with our
If a servicer that met the proposed thresholds for disclosure in Item 1107 of Regulation AB or a trustee had resigned or had been removed, replaced or substituted, or if a new servicer or trustee had been appointed, disclosure would be required of the date the event occurred and the circumstances surrounding the change. In addition, information relating to the transition, such as that required by proposed Item 1107(c) of Regulation AB, would be required. If a new servicer or trustee had been appointed, a description required by the applicable item of Regulation AB relating to that party would be required.
This item would require disclosure of the loss, addition or material modification of any material credit enhancement or other support provided by a third party.
If a required distribution to holders of the asset-backed securities was not made as of the required distribution date under the transaction documents, disclosure would be required of the failure and the nature of the failure. Accelerated disclosure under this item would not replace the requirement to file a report on proposed Form 10-D with respect to the related distribution period (
In lieu of Items 2.03 and 3.02 of Form 8-K, this new item would require disclosure of the information specified in paragraphs (a) through (e) of Item 701
The last proposed Item is intended to address instances where the composition of the actual asset pool at the time of issuance of the asset-backed securities differs from the composition of the pool described in the final prospectus for the offering. Reflecting a current staff position, if, with respect to a takedown off of a shelf registration statement on Form S-3, the composition of the asset pool at the time of issuance of the asset-backed securities differed by 5% or more from the description of the asset pool in the final prospectus filed for the takedown pursuant to Securities Act Rule 424, disclosure about the actual asset pool would be required, including disclosure regarding any new significant obligors, servicers or significant originators.
In the March amendments, the Commission addressed concerns raised by commenters over the effect of failure to file Form 8-K reports on liability under Exchange Act Section 10(b) and Exchange Act Rule 10b-5. The Commission adopted a limited safe harbor for a defined subset of Form 8-K items that provides that no failure to file a Form 8-K that is required to be filed solely by reason of the provisions of the Form shall be deemed to be a violation of Section 10(b) and Rule 10b-5.
Given the nature of the proposed ABS-specific reportable events, we preliminarily propose to extend the safe harbor to proposed Item 6.03, Change in Credit Enhancement or Other External Support. This Item appears to meet the criteria of the existing subset of Form 8-K items to which the safe harbor applies. As discussed in Section III.D.4., because we propose that asset-backed securities would be excluded from quarterly reporting on Form 10-Q, we propose to provide in Form 10-D that disclosure prescribed by a required but not filed item of Form 8-K would need to be included in the Form 10-D report for the period during which that event occurred. Consistent with similar requirements in Forms 10-K and 10-Q, failure to make such disclosure in the Form 10-D report would subject a company to potential liability under Section 10(b) and Rule 10b-5 regarding any of the covered items in the safe harbor, in addition to potential liability under Section 13(a) or 15(d).
In the March amendments, the Commission also addressed concerns over the effect of failure to file Form 8-K reports with respect to Form S-3 eligibility.
• We request comment on our proposed amendments to Form 8-K for asset-backed securities. Should additional or different parties be permitted to sign the report?
• Should any additional reportable events be included or omitted? For example, current Item 3.01 with regard to delistings is limited only to common equity securities and thus may be omitted for most ABS issuers. Should the Item be made applicable with respect to any listing with respect to a class of asset-backed securities? Should Item 4.02 regarding non-reliance on a previously issued audit report apply with respect to the proposed attestation report on an assessment of compliance with servicing criteria? Should Item 5.02 apply if the issuing entity has executive officers or directors?
• Are any other clarifying instructions needed regarding Items that would remain applicable? Are the proposed new Items sufficiently clear and detailed? Are any modifications necessary? For example, should we clarify how differences in pool composition in proposed Item 6.06 should be measured? Should disclosure of additional issuances of securities be required on Form 8-K even if disclosed in an effective registration statement or Rule 424 prospectus?
• Given that most ABS transactions report distributions monthly, should any Form 8-K items be reported in the Form 10-D instead? Would this create too long of a delay? Should such an approach not be permitted for transactions that report distributions quarterly or semi-annually? Would differences between the reporting requirements for different ABS transactions be confusing? Should any of the items be revised in the case of a master trust?
• Which Form 8-K items for asset-backed securities should be included in the safe harbor? Should the safe harbor extend only until the next required Form 10-D? Are there any additional accommodations that should be made with respect to Form 8-K reporting with respect to ABS transactions?
As noted above, we propose to codify the requirement to file reports tied to distributions on asset-backed securities in lieu of quarterly reporting on Form 10-Q. The non-financial items that are in Form 10-Q would be required in proposed Form 10-D. As with our proposals for Form 10-K, we do not believe that the financial item requirements of Form 10-Q would be meaningful with respect to issuing entities. Accordingly, we are proposing to exclude asset-backed securities from quarterly reporting on Form 10-Q.
Under the modified reporting system, issuers of asset-backed securities are not subject to the disclosure requirements under Section 16(a) of the Exchange Act to report transactions and holdings of directors, officers and principal shareholders. In arguing for no-action relief, incoming requests to the staff indicated that the issuing entity often does not have directors and officers. In addition, the requesters advocate that any holders of asset-backed securities representing more than a ten percent interest in the issuing entity would not have access to more information concerning the trust than any other certificate holder, which would alleviate any risk of short-term profits based on inside information proscribed by Section 16.
We are proposing to exempt asset-backed securities from Section 16 in its entirety.
Current Exchange Act Rules 13a-10 and 15d-10 set forth reporting requirements that may be applicable when an issuer changes its fiscal year end. Transition reports are required to assure a continuous flow of information to investors and the marketplace. Although financial and business information normally required in transition reports may not be relevant to ABS transactions, information on the performance of the asset pool during the transition period is relevant to investors of asset-backed securities.
We are proposing amendments to our transition report rules that would clarify their application to asset-backed issuers.
• Should we codify the exclusion from quarterly reporting on Form 10-Q for asset-backed issuers? Should we exempt asset-backed securities from Section 16? Should the non-reporting provisions of Section 16 remain applicable with respect to asset-backed issuers or other participants in an ABS transaction? Should the result be different if the issuing entity has officers or directors?
• Should all of the applicable Form 10-K items be required for a transition report? For example, are there any item requirements under proposed General Instruction J. of Form 10-K that would not be important to investors with respect to the transition period? Should we require a separate report even if the transition period is one month or less?
In addition to our more substantive proposals, we also are proposing several minor and technical amendments to our rules and forms to address the regulatory treatment of ABS. These proposals include:
• Updating references to reflect proposed new definitions and references;
• Removing instructions and references that would no longer be applicable;
• Including cross-references for certain disclosure items in Regulation S-K to items in proposed Regulation AB that clarify their application for asset-backed securities;
• Clarifying that an ABS issuer could not be eligible for the disclosure system for “small business issuers” because that disclosure system, like most of the basic Regulation S-K disclosure system, is not applicable to asset-backed securities;
• Clarifying that Regulation BTR
• We request comment on these proposed changes. Are any additional clarifying amendments needed to reflect our proposals?
• We request comment on the proposed exclusion of ABS issuers from the definition of “small business issuer.” Is there anything analogous to a “small business issuer” in the ABS context, and if so, is there a need to create different regulatory requirements for ABS by smaller issuers? If so, what accommodations should be made and why? By what level should a “small ABS issuer” be determined (
• We request comment on any additional areas that should be addressed regarding the registration, disclosure or reporting requirements for asset-backed securities under the Securities Act or the Exchange Act.
While most of our proposals codify existing staff and market practice, we also are proposing several changes that may require implementation time. We are considering appropriate timing for implementation of the proposals, if adopted, and how best to allow for an orderly transition as a result of the new requirements imposed by the proposals. We are initially considering compliance with the proposals for new registration statements or takedowns off of shelf registration statements beginning three months after the effective date. This would include both the Securities Act and Exchange Act proposals with respect to such newly offered ABS. For outstanding ABS, we are initially considering compliance with the Exchange Act proposals beginning with fiscal years ending six months after the effective date. Of course, registrants could voluntarily comply with any adopted proposals before the compliance dates.
• Should we provide a transition period with respect to the implementation of all or some portion of our proposals? If so, what proposals should be subject to any transition period and would be an appropriate length for any transition period (
• Should there be different transition periods for different proposals? In particular, should there be an extended transition period for the proposed assessment and attestation of compliance with servicing criteria?
• Are there special considerations we should take into account in providing a transition period with respect to certain issuers, such as foreign ABS, certain asset classes or existing transactions? Should transactions before a certain point be “grandfathered” from the proposals? How should any remaining capacity under existing shelf registration statements be treated?
We request and encourage any interested person to submit comments regarding:
• The proposals that are the subject of this release;
• Specific interpretive guidance under the Investment Company Act concerning issues that may arise in connection with asset-backed issuers' compliance with the proposals set forth in this release;
• Additional or different changes regarding asset-backed securities; or
• Other matters that may have an effect on the proposals contained in this release.
We request comment from the point of view of investors in asset-backed securities on their views of the proposals and any possible changes to the proposals. We also request comment from the point of view of issuers that would be subject to the requirements that would result from the proposals. We request comment from the view of underwriters or other participants in asset-backed securities transactions. With regard to any comments, we note that such comments are of greatest assistance to our rulemaking initiative if accompanied by supporting data and analysis of the issues addressed in those comments.
Our proposals contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The regulations and forms listed as Items (1)-(6) were adopted pursuant to the Securities Act and the Exchange Act and set forth the disclosure requirements for registration statements, periodic reports and current reports filed with respect to asset-backed securities and other types of securities to ensure that investors are informed. Form 10-D, if adopted, would represent a new form type for distribution reports currently filed under cover of Form 8-K under the modified reporting system for asset-backed securities, or ABS. The hours and costs associated with preparing, filing and sending these forms constitute reporting and cost burdens imposed by each collection of information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
We are proposing to address comprehensively the registration, disclosure and reporting requirements for asset-backed securities under the Securities Act and the Exchange Act. This includes providing tailored disclosure requirements and guidance for Securities Act and Exchange Act filings involving asset-backed securities. This information is needed so that security holders can make informed investment decisions regarding asset-backed securities. ABS issuers and ABS differ from operating companies and their securities. Many of the Commission's existing disclosure and reporting requirements applicable to operating companies generally do not elicit information that is relevant for ABS transactions. Through the staff filing review process and, where necessary, through staff no-action letters and interpretive statements, an informal disclosure and reporting scheme has developed taking into account evolving industry practices.
With some exceptions noted below, our proposals consolidate and codify current staff positions and industry practice. We propose a new principles-based set of disclosure items, “Regulation AB,” as a sub-part of Regulation S-K that would form the basis for disclosure in both Securities Act registration statements and Exchange Act reports. Amendments to the forms referenced above (other than Form S-11) would specify the menu of disclosure items that apply to asset-backed securities, including items contained in new Regulation AB and a limited number of pre-existing disclosure requirements identified in the forms.
These disclosure changes are designed to establish a tailored disclosure system for asset-backed securities offerings. Compliance with the revised disclosure requirements would be mandatory. There would be no mandatory retention period for the information disclosed, and responses to the disclosure requirements would not be kept confidential.
Our existing PRA burden estimates for each of the affected collections of information are based on an average of the time and cost incurred by all types of public companies, not just ABS issuers, to prepare a particular information collection. As noted above, however, the existing disclosure and reporting system with respect to ABS that we propose to codify recognizes that information relevant to ABS differs substantially from that relevant to other securities. For each information collection discussed below, we first estimate the average number of hours that an ABS issuer currently spends to complete one of the listed forms. We then estimate the incremental burden change that would result if the Commission adopted the proposed changes. The staff estimated the average number of hours each ABS issuer currently spends completing the form by contacting a number of issuers and other persons regularly involved in completing the forms.
Each entity that files reports with the Commission is assigned a Standard Industrial Classification (SIC) code to indicate the entity's type of business. SIC Code 6189 is used with respect to asset-backed securities. Entities assigned this SIC Code were used as a proxy for estimating the number of responses with respect to ABS issuers. In addition, unless otherwise specified below, all estimates of the number of responses are based on filings made during the Commission's 2003 fiscal year: October 1, 2002 through September 30, 2003.
Our current PRA burden estimate for Form S-3 is 398 hours per response. This estimate is based on the assumption that most disclosure regarding the issuer is incorporated by reference from separately required Exchange Act reports. However, because an Exchange Act reporting history is not an ABS condition for Form S-3 eligibility, ABS issuers using Form S-3 often must present all of their disclosure in the registration statement in lieu of incorporating it by reference. As a result, our burden estimate for ABS issuers using Form S-3 under existing requirements is similar to our Form S-1 burden estimate for asset-backed securities, given that all Form S-1 disclosure also must be provided in the form itself.
During our 2003 fiscal year, we received 168 Form S-3 filings related to asset-backed securities compared to 1,695 Form S-3 filings overall. We estimate that currently it takes an ABS issuer an average of 1,000 hours to prepare a Form S-3 for an ABS offering. We estimate that 25% of the burden is borne by the ABS issuer and that 75% of the burden is borne by outside professionals retained by the issuer at an average cost of $300 per hour.
We propose to add a separate general instruction to Form S-3 to specify the disclosure to be provided with respect to ABS offerings. Our proposed disclosure requirements are based to a large extent on the disclosures that appear in ABS Form S-3 filings today. We do, however, propose to require a few additional items that may not appear in all ABS Form S-3 filings today. We preliminarily believe this information already should be readily available to issuers even if not currently disclosed, although some information would require additional attention and diligence before its use in a registration statement. For example, we propose to require delinquency and loss information to be provided on a static pool basis. While the information is, we believe, available, additional time and expense will be involved in including it in registration statements. Our proposals also are designed to elicit more disclosure regarding the background, experience, performance and roles of various transaction parties, including the sponsor, the servicer and the trustee. Other examples of disclosure that may be incremental include:
• How delinquencies and charge-offs are defined and determined;
• The use of prefunding periods, revolving periods and master trust structures;
• The realization of residual values in lease-backed ABS;
• The impact of differing legal and regulatory requirements in foreign ABS; and
• Fees and expenses, including a fee and expense table.
We estimate that completing and filing a Form S-3 if the new disclosure requirements are adopted would result in an average increase of approximately 25% to our estimate of the current Form S-3 reporting burden imposed on ABS issuers. As a result, we estimate that, on average, completing and filing a Form S-3 to register ABS if the new disclosure requirements were adopted would result in a burden of 1,250 hours, an increase of 250 hours per response over the current burden. Using our estimates of the percentages of the burden prepared by the issuer and outside professionals, we thus estimate that the proposals would result in an added annual burden of 10,500 hours (168 filings × 250 additional hours × .25) and an added annual cost of $9,450,000 (168 filings x 250 additional hours × .75 × $300 per hour).
Our current PRA burden estimate for Form S-1 is 1,749 hours per response. Unlike Form S-3, this estimate is based on the assumption that all required disclosure is presented in the form. However, as noted above, like Form S-3, the disclosure provided with respect to a registered ABS offering currently differs from that provided with respect to operating companies.
During our 2003 fiscal year, we received 7 Form S-1 filings related to asset-backed securities compared to 247 Form S-1 filings overall. In addition, we received 18 filings on Form S-11 related to asset-backed securities. We are proposing to move all Securities Act registrations of ABS offerings to Form S-1 or Form S-3. Assuming that the filings on Form S-11 could not otherwise be conducted on Form S-3, we estimate that these filings would instead be made on Form S-1. Thus, we estimate that there would be 25 ABS offerings registered on Form S-1. We are correspondingly reducing our estimate of responses on Form S-11 by 18 responses.
For ABS filings on Form S-1, we are using the same estimate as for ABS filings on Form S-3, given that the disclosures in both filings are substantially similar.
As with Form S-3, we propose to add a separate general instruction to Form S-1 to specify the disclosure to be provided with respect to ABS offerings. These disclosures would be substantially similar to those required for Form S-3 filings. As a result, we estimate that completing and filing a Form S-1 if the new disclosure requirements were adopted would result in an increase of approximately 25% over the amount of time currently spent by ABS issuers to complete and file the form. This results in a revised estimate of 1,250 hours per response, an increase of 250 hours per response over the current reporting burden. Using our estimates of the percentages of the burden prepared by the issuer and outside professionals, we thus estimate that the proposals would result in an added annual burden of 1,563 hours (25 filings × 250 additional hours × .25) and an added annual cost of $1,406,250 (25 filings × 250 additional hours × .75 × $300 per hour).
Our current PRA burden estimate for Form 10-K is 2,196 hours per response. Similar to Securities Act registration statements, however, the ongoing periodic and current reporting requirements applicable to operating companies under the Exchange Act differ substantially from the reporting that is most relevant to investors in asset-backed securities. The Commission staff has developed a system of modified Exchange Act reporting for ABS issuers. This includes a modified annual report on Form 10-K involving a reduced amount of disclosure than for operating companies. In addition to a limited menu of Form 10-K disclosure items, the ABS issuer must file as exhibits to the Form 10-K a servicer compliance statement and a report by an independent public accountant. Asset-backed issuers are required to include a certification required by Section 302 of the Sarbanes-Oxley Act in their Form 10-K reports. The staff has provided a tailored form of certification for use with ABS annual reports that we now propose to codify, with minor revisions.
Based on filings in our 2003 fiscal year, we estimate 1,200 Form 10-K filings related to asset-backed securities.
We propose to add a separate general instruction to Form 10-K to specify the disclosure to be provided with respect to ABS offerings. As with Securities Act registration statements, our proposed disclosure requirements are based on the disclosures that appear in ABS Form 10-K filings today. While the proposed disclosures are generally consistent with the disclosures provided today, the most significant difference between our proposed disclosure requirements and the average disclosure that appears today is with respect to the assessment of compliance with servicing criteria. The most common compliance framework being used today is the Mortgage Bankers Association of America's Uniform Single Attestation Program, or USAP. Our proposed criteria are intended to be incrementally broader than the USAP criteria to cover the full spectrum of servicing activities. Our proposals also would require additional disclosure in the Form 10-K report if any material instances of noncompliance were identified.
Under these assumptions, we estimate that completing and filing a Form 10-K if the new disclosure requirements were adopted would result in an average increase of approximately 33% over the amount of time currently spent by entities completing the form. In deriving this estimate, we believe that many issuers will experience costs in excess of this average in the first year of compliance with the proposals. We believe that costs will decrease in subsequent years. This burden also will vary among issuers based on the complexity of the ABS transaction, the
As a result, we estimate that, on average, completing and filing a Form 10-K if the new disclosure requirements are adopted would impose a reporting burden on ABS issuers of 120 hours, an increase of 30 hours over the current Form 10-K reporting burden for ABS issuers. Using our estimates of the percentages of the burden prepared by the issuer and outside professionals, we thus estimate that the proposals would result in an added annual burden of 9,000 hours (1,200 filings × 30 additional hours × .25) and an added annual cost of $8,100,000 (1,200 filings × 30 additional hours × .75 × $300 per hour).
We do not believe that the proposed amendments with respect to the Section 302 certification result in a need to alter the burden estimates. These amendments merely reflect conforming amendments already incorporated in the OMB burden estimates (
Our current PRA burden estimate for Form 8-K is 5 hours per response. This is based on the use of that report to disclose the occurrence of certain defined reportable events, some of which are applicable to asset-backed securities. However, under the existing modified reporting system, ABS issuers also use Form 8-K to file periodic distribution and pool performance information. To separate this reporting from the disclosure of current events, we propose one new form type for asset-backed securities, Form 10-D, to act as the report for the periodic distribution and pool performance information. Form 8-K would continue to prescribe certain reportable events that would require current disclosure by ABS issuers. Form 8-K also would continue to be available to report any events that an ABS issuer deems to be of importance to security holders.
During our 2003 fiscal year, we received 12,633 Form 8-K filings related to asset-backed securities compared to 58,421 Form 8-K filings overall. Based on filings in our 2003 fiscal year, we estimate 9,500 filings that would include distribution and pool performance information that would instead appear in Form 10-D under our proposals.
We estimate that the time it takes to prepare a Form 8-K for a reportable event does not vary between an ABS and a non-ABS issuer. Thus, we estimate that an ABS issuer spends, on average, approximately 5 hours completing the form. As with our estimates for non-ABS issuers, we estimate that 75% of the burden is borne by the ABS issuer and that 25% of the burden is borne by outside professionals retained by the issuer at an average cost of $300 per hour.
We propose to add a separate general instruction to Form 8-K to specify the events that would require disclosure under that form. Several reportable events would be excluded with respect to ABS issuers, and a few additional events specific to asset-backed securities would be added. We also propose clarifying amendments to several existing reportable events to identify how they should apply to asset-backed securities.
We estimate that, on average, completing and filing a Form 8-K if the proposals were adopted would require the same amount of time currently spent by entities to complete the form-approximately 5 hours. We do estimate that the number of reportable events on Form 8-K would increase with respect to asset-backed securities as a result of the proposals. For purposes of the PRA, we estimate that the proposals would cause, on average, an increase of two reports on Form 8-K per ABS issuer per year. Based on our estimate of 1,200 ABS issuers, we estimate an increase of 2,400 Form 8-K filings per year. Using our estimates of the percentages of the burden prepared by the issuer and outside professionals, we thus estimate that the proposals would result in an added annual burden of 9,000 hours (2,400 filings x 5 hours x .75) and an added annual cost of $900,000 (2,400 filings x 5 hours x .25 x $300 per hour).
As discussed above, proposed Form 10-D would be the new form type under which ABS issuers would file their periodic distribution and pool performance information. As discussed above, we estimate that there would be 9,500 Form 10-D filings per year. The proposed disclosure content for Form 10-D would consist of the distribution and pool performance information for the distribution period as well as certain non-financial disclosures, similar to those required by Part II of Form 10-Q, that occurred during the period. The requirement with respect to distribution and pool performance information would require the registrant to provide the information required by proposed Item 1119 of Regulation AB and to attach as an exhibit to the Form 10-D the distribution report delivered to the trustee or security holders, as the case may be, pursuant to the transaction agreements for the related distribution date. However, any information required by Item 1119 of Regulation AB that was included in the attached distribution report would not need to be repeated in the Form 10-D. As a result, and as is typically the case today with distribution reports filed under Form 8-K, we estimate that on average no additional information is likely to be required in the Form 10-D with respect to distribution or pool performance.
Accordingly, we are not including preparation of the distribution report in our burden hour estimates for preparing Form 10-D. We do estimate that it would take approximately 6 hours to assemble the distribution report with the Form 10-D for filing. We also propose a few incremental disclosures regarding distribution and pool performance information, such as those relating to the changes to the asset pool, that may not be required in the average distribution report today. We estimate that these disclosures would result in an average of 10 hours per filing. Finally, we estimate the remaining disclosures for the Form 10-D, such as the disclosures required by Part II of Form 10-Q, would result in an average of 14 hours per filing.
As a result, we estimate that, on average, completing and filing a Form 10-D if the new proposals were adopted would impose a burden of 30 hours per filing. As with our other estimates for Exchange Act reports by non-ABS issuers, we estimate that 75% of the burden is borne by the ABS issuer and that 25% of the burden is borne by outside professionals retained by the issuer at an average cost of $300 per hour. We thus estimate that proposed Form 10-D would result in a total annual burden of 213,750 hours (9,500 filings × 30 hours × .75) and an added annual cost of $21,375,000 (9,500 filings × 30 hours × .25 × $300 per hour). It should be noted, however, that this reflection of the burden predominantly consists of codifying the already existing requirements applicable under
Regulation S-K includes the requirements that an issuer must provide in filings under both the Securities Act and the Exchange Act. Our proposed disclosure changes would include changes to items under Regulation S-K and the addition of a new subpart to Regulation S-K—Regulation AB—that would provide disclosure items particularly tailored to asset-backed securities.
We request comment in order to (a) evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (b) evaluate the accuracy of our estimates of the burden of the proposed collections of information; (c) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; (d) evaluate whether there are ways to minimize the burden of the collections of information on those who respond, including through the use of automated collection techniques or other forms of information technology; and (e) evaluate whether the proposals will have any effects on any other collections of information not previously identified in this section.
Any member of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing the burdens. Persons who desire to submit comments on the collection of information requirements should direct their comments to the OMB, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and send a copy of the comments to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, with reference to File No. S7-21-04. Requests for materials submitted to the OMB by us with regard to these collections of information should be in writing, refer to File No. S7-21-04, and be submitted to the Securities and Exchange Commission, Records Management, Office of Filings and Information Services, 450 Fifth Street, NW., Washington, DC 20549. Because the OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication, your comments are best assured of having their full effect if the OMB receives them within 30 days of publication.
The proposed rules and Regulation AB codify staff and industry practice for public offerings of asset-backed securities with incremental changes. They would provide definitive rules for these offerings registered under the Securities Act as well as ongoing reporting by asset-backed issuers under the Exchange Act. In this section, we examine the benefits and costs of our proposed rules. We request that commenters provide views along with supporting data as to the benefits and costs associated with the proposals.
The Commission's corporate offering and disclosure rules were not designed to accommodate some of the special characteristics of ABS offerings. The current offering and disclosure process for ABS has developed through no-action letters, staff comment, market practice and informal staff interpretations. This current informal regulatory regime for asset-backed offerings is sub-optimal for a well-developed market that represents a large portion of the U.S. capital markets. The accumulated informal guidance has diminished the transparency of applicable requirements, potentially decreasing efficiency and leading to uncertainty and common problems. Many issuers, investors and other market participants have requested a defined set of regulatory requirements.
In order to improve an investor's understanding of an ABS offering, we propose incremental enhancements to disclosure regarding the participants involved in the ABS transaction and of historical data regarding the performance of the assets backing the current and prior comparable asset-backed offerings, known as static pool data. We propose to improve the current framework for reporting on compliance with servicing criteria that would operate within a disclosure-based framework and cover the entire spectrum of the servicing function in an ABS transaction. An independent public accountant would attest under recognized professional standards for attestation to the responsible party's assertion of compliance with the servicing criteria. We also propose incremental changes to current staff and industry practice to allow certain lease-backed and other ABS immediate access to shelf registration through Form S-3 eligibility, along with incremental disclosure to address the different nature of these offerings. In addition, we are proposing to allow additional asset types to be securitized through master trusts or through transactions using a revolving period, again with incremental disclosure to add transparency to the use of these structures and potential changes to the asset pool over time. We are relaxing restrictions on incorporation by reference. We also are proposing to give foreign issuers access to shelf offerings and Form S-3. Finally, we are providing interpretive guidance in a number of areas in addition to proposed rule changes, such as guidance regarding the preparation of base prospectuses and prospectus supplements and EDGAR reporting, to establish more clear and uniform practices across the ABS market.
The definition of asset-backed security would no longer be limited to those issuers eligible to register securities on Form S-3 but expanded to any type of security that meets the proposed definition of an asset-backed security. This would bring all ABS transactions and issuers into an appropriate disclosure system regardless of what Securities Act form they were eligible to use.
Our proposals would codify several clarifying interpretations of existing staff positions to recognize and build upon the operational and structural distinctions between ABS and non-ABS transactions. The current staff position regarding non-performing assets and delinquent assets would be incorporated into the definition of an asset-backed security with clarifying guidance as to how these concepts are to be determined. However, in codifying staff positions, we also are proposing to expand some of them to allow additional asset types and transaction features to be included. For example, the definition of asset-backed security would be expanded so that additional lease-backed ABS would be included. The proposals would allow structures such as master trusts and revolving periods, currently allowed by the staff for only certain asset classes, to be used by all asset-backed issuers. Therefore, if the market found these structures attractive for other asset classes, asset-backed issuers could effectively utilize the structures in their ABS offerings. We propose to increase disclosure to provide greater transparency of changes to pool composition.
The proposed definition and interpretations are intended to establish parameters for the types of securities that are appropriate for our proposed alternative regulatory regime for ABS. The proposals would not mean or imply that public offerings of securities outside of these parameters may not be registered, but only that the disclosure and other requirements in the ABS regime are not designed for those securities. Such securities would need to rely on non-ABS form eligibility for registration, and additional disclosures would be required. This may mean that on the margins the proposed requirements may influence market practice. However, we have taken an expansive approach to the concept of what is an “asset-backed security” to minimize such instances and to allow flexibility in market developments.
We propose to allow domestic and foreign issuers to use either Form S-1 or Form S-3 to register an offering of asset-backed securities. Transactions backed by additional lease pools also would be allowed to use Form S-3 under the proposal. This will provide the benefit of delayed offerings to foreign issuers and some issuers of ABS backed by lease pools. We believe this will make the offering process less costly for these issuers. We propose to require additional disclosure for these two types of offerings to provide investors with a clear understanding of the unique issues these offerings raise. To remove regulatory uncertainty for issuers, we propose to codify a number of current staff positions, including clarifying and streamlining the conditions when a distribution of underlying pool assets must be concurrently registered with the distribution of ABS. We also propose to codify current staff position that the depositor should sign the registration statement and who is considered the issuer for Securities Act purposes. In very limited situations, the staff required the issuing entity to sign the registration statement. As this did not appear to provide any significant benefit to investors, and in some cases, may have added costs to issuers, we have not codified this position. We believe the proposed rules for Securities Act registration would increase transparency of the current informal regulatory regime for issuers of asset-backed securities, provide increased flexibility for additional ABS transactions and help the asset-backed securities market function more efficiently.
The proposals would revise the instructions for Form S-1 and Form S-3 for registered asset-backed offerings to clarify those items under Regulation S-K that an issuer would be required to disclose, if applicable, and list the items that an issuer would not be required to disclose due to the different nature of the ABS transactions. The instructions for Form S-1 and Form S-3 would include additional disclosure items under Regulation AB, a proposed set of principles-based disclosure requirements for ABS discussed in the next section. We believe the proposed instructions integrate disclosure items for the respective forms, which will reduce compliance costs and provide certainty about the disclosure requirements for issuers while promoting relevant disclosure for investors. We request comment on the type and amount of any potential costs the proposed rules for an asset-backed offering would place on issuers or investors.
The proposals for Form S-3 eligibility would remain essentially the same as under existing practice. We do propose codifying that reporting obligations regarding other ABS transactions established by the depositor have been complied with for the prior 12 months for continued Form S-3 eligibility for new transactions, which is consistent with existing staff policy. We propose to expand this requirement to also cover the reporting history of transactions by the sponsor. This is in order to avoid a sponsor merely setting up a new special purpose entity to obtain Form S-3 eligibility when prior transactions have not complied with Exchange Act reporting. While we believe the instances when this requirement would not be met should be rare, it could have the effect of foreclosing certain issuers from Form S-3 eligibility if they violate reporting requirements for other transactions. However, we do not believe it would be appropriate to continue to allow the benefits of shelf registration to new transactions established by the same market participants that have not complied with ongoing reporting obligations involving previous transactions.
We propose to codify an existing no-action position that broker-dealers involved in Form S-3 ABS transactions do not need to deliver a copy of the preliminary prospectus 48 hours prior to sending a confirmation of sale. The proposal would de-link this exclusion from the current requirement that the ABS transaction not include a prefunding account larger than 25% of the pool. We propose to put the 25% prefunding limitation in Form S-3 eligibility, but allow prefunding accounts up to 50% to be used in transactions registered on Form S-1, which is consistent with the treatment of revolving periods. We believe codifying this position will benefit issuers in the distribution process, but we request comment from investors as to whether this will increase their burden by significantly increasing the number of transactions that are sold within compressed timeframes. We also request comment from issuers if moving transactions with prefunding levels between 25% to 50% of the pool to Form S-1 causes any material burden.
The proposed disclosure items under Regulation AB would provide a disclosure structure tailored to the different nature of ABS. We anticipate the proposals would assist issuers and
• Confirms that financial statements of the issuing entity are not required for ABS transactions;
• Clarifies when third party financial information is required; and
• Codifies when third party financial information may be incorporated by reference or referred to in registration statements.
The proposed disclosure required under Regulation AB is largely based on current market practices and therefore the increase in costs to issuers should be measured. Recognizing that it would be impractical to provide an exhaustive list of disclosure items for each asset class, the proposed disclosure requirements are principles-based and thus provide flexibility for issuers where doing so would yield more focused and descriptive disclosure for investors and reduce the burden for issuers. We believe the proposal attempts to mitigate the possibility that immaterial information may overwhelm the disclosure by keying many disclosure items to a materiality-based standard. Thus, the proposed disclosure gives registrants, underwriters and their advisors the opportunity to balance the need for registrants to have flexibility when drafting disclosure with investors' need for more transparency. Whether they will take advantage of this opportunity is largely their decision.
The proposals attempt to increase transparency regarding roles and qualification of parties involved in the offering and on-going activities of the ABS transaction. Various market participants have indicated there has been confusion over the roles of parties in particular transactions or types of transactions. Similarly, market participants have indicated the role of the servicer and its servicing practices can materially impact an ABS transaction. In addition, investors have repeatedly requested that we require static pool data. According to these investors, this proposed disclosure would assist investors in analyzing the origination trends of the sponsor's overall portfolio, which would provide material information on both the quality and experience of pool selection and asset performance. As with many other disclosure items, we believe it would be impractical to impose standardized requirements that would be applicable and efficient for all transactions regarding disclosure of this data. Accordingly, the static pool data required would be keyed to the data material to the transaction. We understand almost all issuers already have static pool information available, although it may have to be subjected to additional procedures and diligence before it is included in disclosure documents. We nonetheless believe preliminarily that it should not present a significant burden to issuers, while it will improve transparency for investors in ways that investors have indicated is important. As noted below, we request comment on the type and magnitude of the burden these disclosure requirements would represent to issuers.
The proposed expanded disclosure would offer a greater understanding of the background, previous experience, and specific role of the sponsor, depositor, servicer and trustee. The proposed disclosure on the asset underwriting criteria of the sponsor would provide a clear understanding of the type of assets investors should expect in the asset pool. Some discussion of underwriting criteria is currently included, although it is typically minimal. We do not believe the costs to prepare the proposed disclosure should substantially increase. The proposed disclosure on servicing practices of all servicers materially involved in the maintenance of the asset pool and the existence of contractual back-up servicing is indicative of the importance of the servicer to the ongoing performance of the ABS transaction. We believe the proposals would stimulate higher quality disclosures of key aspects of the ABS transaction and its participants, which would yield more relevant information available to investors and allow them to make better-informed investment choices and potentially reduce the likelihood that pool assets or an ABS transaction will perform dramatically different than anticipated by investors.
This proposed disclosure under Regulation AB may increase the costs to issuers of asset-backed securities. The proposed disclosure is intended to enhance the utility of the disclosure in registration statements and ongoing Exchange Act reports. Issuers may need to reevaluate current disclosure from prior registration statements to determine the scope of additional information. We also encourage issuers to evaluate whether they should eliminate immaterial boilerplate disclosure that is not required under Regulation AB and that does not aid understanding, but that they currently provide. Due to the informal nature of the current requirements, issuers may be unnecessarily including information that is not relevant or helpful to investors. Issuers may need to employ additional resources, including in-house personnel and outside legal counsel, to assist in this evaluation. We anticipate that most of these costs may be short-term or one-time costs in preparing the first registration statement under the proposed codified disclosure regime.
We also estimate that issuers may need extra time to prepare the proposed information or obtain such information from the respective parties to the ABS transaction. However, we believe that parties already provide much of this information to rating agencies during the process of obtaining a rating on the offering, and thus such information should be readily available. Therefore, we do not anticipate that issuers would incur significant costs in complying with the proposed disclosure regime.
For purposes of the Paperwork Reduction Act, we estimate that the incremental burden in preparing the additional Securities Act disclosures would be on average 250 hours per registration statement. Based on our estimated costs of in-house personnel time, we estimate the incremental PRA hour-burden would translate into an approximate cost of $12,967,275.
The proposals to codify the existing ability to use written communications outside of the registration statement prospectus recognize the current beneficial information these communications provide to potential investors in an ABS offering. The proposals would simplify the definitions of the written communications that an issuer may use and incrementally expand it by allowing the use of static pool data. The proposals also clarify that the scope of the written communications permits data at the individual pool asset level. Loan level data may in some cases assist investors in better understanding the nature of the individual loans included in the pool, which in turn may increase the quality of information available to investors.
The proposals streamline the filing requirements for these communications by providing that all types of ABS informational and computational material be filed in the same timeframe, thus reducing the regulatory uncertainty for issuers as to when to file written communications. The proposals would eliminate the hardship exemption for filing these materials in paper rather than on EDGAR. Given the developments in our EDGAR system, we believe these materials can be filed easily on EDGAR. The proposals should increase the uniformity and timeliness of information received by investors as well as disseminated to the marketplace. Since all investors almost uniformly access Commission filings electronically, this proposal should significantly benefit them. We request comment on the cost to issuers of eliminating the EDGAR hardship exemption.
We do not propose to change the scope or liability requirements of the material that may be used, so our proposals should not result in incremental costs from existing requirements. Staff in the Division of Corporation Finance is developing recommendations to the Commission on additional potential reforms to the Securities Act registration process for all offerings. We plan to address the issue of whether additional accommodations to the communications restrictions would be appropriate, including for ABS offerings, in connection with any recommendations on broader reforms.
We also propose to codify an existing staff safe harbor regarding the use of research reports published or distributed by a broker or dealer involving ABS. Both the existing safe harbor and our proposal recognize the different nature of ABS by providing tailored conditions for ABS research reports. Given that the proposed safe harbor is consistent with the existing staff safe harbor, it too should not result in incremental costs.
We propose to integrate and streamline the modified reporting structure currently permitted by scores of no-action letters for issuers of asset-backed securities to meet their reporting obligations under the Exchange Act. The proposal clarifies who has the reporting obligation under the Exchange Act and who must file and sign the annual, periodic and current reports. The proposal differs from current practice of allowing trustees to sign since we believe either the depositor or the servicer is the party most able to monitor the ongoing Exchange Act reporting requirements of the ABS transaction. The proposal explains when the reporting obligation begins and may be terminated by the issuer. This should provide certainty to issuers as to when their reporting obligation is suspended.
Our proposals would outline the required disclosure in the Exchange Act reports to ensure uniform reporting by issuers while reducing the information asymmetry between issuers and investors. We propose to codify the current requirements that periodic information be disclosed based on the periodicity of distributions on the securities. We believe most of the information we propose to require is typically disclosed in the current distribution reports. We request comment on the burden of any increased disclosure. Rather than filing these reports on Form 8-K, we propose that issuers use newly proposed Form 10-D for reporting periodic distributions to assist investors and the marketplace in distinguishing such distribution reports from the reporting of significant events relevant to the ABS transaction.
We do not believe the use of Form 10-D rather than Form 8-K for filing these reports would result in additional costs beyond minimal one-time transition costs. Regarding the content of the Form 10-D, we do propose a few incremental disclosures, such as those relating to the changes to the asset pool. For purposes of the Paperwork Reduction Act, we estimate that the burden in preparing these incremental disclosures for the Form 10-D would be on average 10 hours per Form 10-D. Based on our estimated costs of in-house staff time, we estimate the incremental PRA hour-burden would translate into an approximate cost of $17,943,750.
We have reviewed our recently revised Form 8-K requirements and propose the item requirements we believe should be applicable to ABS issuers. In addition, we propose several ABS-specific reportable events for Form 8-K disclosure. The separate filing of reportable events on Form 8-K will accelerate the delivery of information to the capital markets, which should enable investors to better monitor reportable events affecting the asset-backed securities or the relevant parties involved in the ABS transaction. Issuers of asset-backed securities may incur additional costs to report these events under a shorter timeframe; however, these additional costs should be consistent with the costs incurred by corporate issuers of other securities. For purposes of the PRA, we estimate that the proposals would cause, on average, an increase of two reports on Form 8-K per ABS issuer per year. Based on our estimated costs of in-house staff time, we estimate the PRA hour-burden would translate into an approximate cost of $2,475,000.
Under the modified reporting no-action letters, ABS issuers include with their annual report on Form 10-K a report by an independent public accountant attesting to a responsible party's assertion of compliance with servicing criteria. We propose to codify this approach. Under this approach, audited financial statements of the issuing entity and reporting regarding internal control over financial reporting are not required. We also would propose to codify this practice because we believe the costs to provide audited financial statements and reporting regarding internal control over financial reporting would greatly outweigh any minimal benefits obtained from these requirements. We believe our current approach is more cost-effective and beneficial in ABS transactions.
The current modified reporting system does not provide optimal transparency as to what is expected of issuers, servicers, accountants and other parties. We propose to enhance the current framework for reporting on compliance with a single set of transparent and comprehensive servicing criteria regarding an ABS transaction. The only framework generally used today is limited to a specific asset class, covers only limited servicing functions and represents minimum standards. Therefore, we believe the market would benefit by our proposed servicing criteria. We believe that the proposed disclosure-based criteria would improve the quality of the assessment of compliance and elicit disclosure that is comparable among different issuers. We do request comment on whether alternate suitable criteria could be developed for purposes of the proposals.
We propose that the responsible party and the registered public accounting firm would use the proposed servicing criteria in assessing and reporting on servicing compliance. We have attempted to provide flexibility by proposing servicing criteria that are principles-based and thus may be tailored to the servicing operations for ABS transactions of any asset class. In addition, we propose the assessment and reporting on the servicing criteria to operate within a disclosure-based framework. For example, we would allow the responsible party to exclude the particular servicing criteria that are inapplicable to the servicing of a specific asset class provided that the inapplicability of the criteria was disclosed. In addition, the proposal would require the responsible party to disclose if a material instance of noncompliance with the proposed criteria exists to alert investors of potential problems with the servicing function. The proposal would not result in regulatory restrictions on market access such as Form S-3 eligibility. This approach attempts to balance the need for responsible parties to have flexibility when drafting disclosure on the assessment of compliance with the proposed servicing criteria with investors' needs for more transparency.
The proposed criteria cover the full spectrum of servicing asset-backed securities thereby facilitating an evaluation of the servicing activities by the responsible party regardless of whether those servicing activities are conducted by the responsible party or other parties, such as sub-servicers. We believe one of the critical components is calculation of the payments on the securities, also referred to as the “waterfall.” Our proposal attempts to cover this part of the servicing function, which is not necessarily part of the scope of the current framework. This improved assessment would enable investors, other responsible parties to the transaction and ultimately the marketplace to analyze the operational quality of the entire servicing function, which should improve investor confidence in the overall performance of the asset-backed securities.
We estimate that the proposed servicing criteria may impose new disclosure requirements on compliance assessments that do not presently utilize the current framework. Since the proposed servicing criteria are designed to evaluate servicing compliance, including compliance related to the waterfall, we estimate that the scope of compliance assessments may need to be enhanced to address these new disclosure requirements. We also understand that additional time and cost may be required to help assure that appropriate parties are accountable for reporting the applicable servicing criteria to the responsible party, which may include an internal assessment of servicing compliance or obtaining reports on servicing compliance from other parties involved in servicing. One of the benefits of a single responsible party approach would be assurance that all aspects of the servicing function have been assessed. To the extent that the responsible party and other parties involved in servicing do not maintain compliance with the proposed criteria and do not wish to publicly disclose this fact, the proposed disclosure-based criteria could lead to these parties instituting appropriate procedures to comply with the criteria and thus incur implementation costs. We request comment on the type, amount and duration of these costs.
Consistent with the modified reporting system, we believe the requirement that a registered public accounting firm attest to the responsible party's assessment of compliance with a single set of servicing criteria is an important component of the proposal. The engagement of an independent accountant improves investor confidence by establishing an independent check on the responsible party's assessment of servicing compliance. In addition, the attestation by the independent accountant may detect material instances of noncompliance with the servicing criteria that may provide early warning signals of potential losses incurred by investors. The proposed attestation of the entire servicing function would increase the costs of preparing the annual report since the accounting costs would likely increase due to the increase in the breadth of servicing function covered. These costs should be mitigated since many of the proposed servicing criteria are based on the current framework and our criteria propose only incremental changes to the current framework.
In addition to the proposed assessment of compliance with servicing criteria, we propose to continue requiring issuers to file a servicer compliance statement regarding compliance with material aspects of the servicing agreement. This codifies current practice and should not by itself result in any additional costs. We also propose to specify the form and content of the Sarbanes-Oxley Section 302 certification for ABS issuers consistent with existing staff practice. We propose minimal changes to the form to reflect our other Exchange Act proposals and to reflect the approach that the language of the certification must not be revised in providing the certification apart from the alternatives specified. Instead, any issues should be addressed through disclosure in the reports. We do not believe these revisions will result in incremental costs and should result in a more uniform and consistent certification process.
For purposes of the Paperwork Reduction Act, we estimate that the incremental burden in preparing the Form 10-K, including the proposed assessment of compliance with servicing criteria, would be on average 30 hours per response. Based on our estimated costs, we estimate the PRA hour-burden would translate into an approximate cost of $9,675,000.
We also reiterate existing staff view that the final prospectus and Exchange Act reports are to be separately filed under the CIK code and file number of the respective issuing entity on EDGAR. This facilitates access to information relevant to the particular securities involved. We anticipate that some issuers not following this existing practice may incur additional costs by preparing separate Exchange Act reports for each issuing entity because some issuers provide combined reports. However, we believe these costs will be limited since issuers are already reporting this information for a particular issuing entity, albeit in a combined report. Some of the issuers that combine reports do so for scores of issuers such that investors may have to sift through hundreds of pages that relate to securities they do not own. Further, combined reporting creates inefficiencies in the storage, retrieval and analysis of EDGAR information.
For purposes of the Small Business Regulatory Enforcement Fairness Act of
• An annual effect on the economy of $100 million or more;
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment or innovation.
Section 23(a)(2) of the Exchange Act
The proposals are intended to increase transparency by amending informal industry and staff practices into a formal regulatory regime for offerings of asset-backed securities under the Securities Act and ongoing reporting under the Exchange Act. We anticipate that these proposals would enhance capital formation by simplifying the process of registering an offering of asset-backed securities allowing parties not fully immersed in the ABS market to ascertain and understand the offering and disclosure requirements, thus promoting efficiency and competitiveness of the U.S. capital markets for asset-backed offerings.
Our specific proposals relate only to transactions that meet our proposed definition for an asset-backed security under the Securities Act. Although the definition for an asset-backed security captures most asset-backed structures, there may be transactions that are fundamentally different from the proposed definition. However, transactions that would not fit the parameters of the definition would still be able to access the capital markets. Instead, these transactions would be required to rely on non-ABS form eligibility for registration, and additional disclosures would be required.
In addition, the proposed principles-based disclosure requirements would allow great flexibility in implementation for all asset classes while enhancing the quality of disclosure for ABS transactions. Similarly, the proposed servicing criteria are intended to provide a comprehensive assessment to evaluate the overall servicing function for the ABS transaction. We anticipate these proposals should improve investors' ability to make informed investment decisions about asset-backed offerings as well as help increase investor confidence in the servicing of ABS transactions. We anticipate this would therefore lead to increased efficiency and competitiveness of the U.S. capital markets. Increased market efficiency and investor confidence also may encourage more efficient capital formation.
The proposals could have certain indirect negative effects. For example, the proposed incremental disclosures would increase transparency regarding a sponsor's or servicer's business practices. However, all such parties would be required to disclose such information equally, and the increased disclosures are designed to facilitate information to investors to improve their ability to make informed investment decisions. In addition, if transactions in the private market for ABS or foreign markets do not result in similar disclosures, issuers could, all things being equal, migrate to those markets to avoid such disclosures. However, there may be limitations on the ability to migrate to these markets given the large size of the U.S. ABS market and potential regulatory or investment restrictions on the ability of investors to purchase non-public ABS. In addition, competitors and markets not subject to the proposed requirements may suffer from decreased investor confidence if the asset-backed offerings lack the transparency of asset-backed offerings that do comply with the disclosure regime.
The proposals are designed to improve the current framework for reporting on compliance with servicing criteria that would operate within a disclosure-based framework and cover the entire spectrum of the servicing function. We believe the proposed servicing criteria will provide value to the ABS industry in establishing market-wide disclosure benchmarks and promote market efficiency by providing meaningful disclosure regarding the overall servicing function by a responsible party that is attested to by an independent public accountant. The disclosure-based framework of the servicing criteria would provide information about the entire servicing function to be publicly available for investors, as well as the marketplace, to monitor the performance of the ABS transaction. This should promote investor confidence and market efficiency by decreasing information asymmetries and promoting more efficient pricing and valuation of the securities. As a result, capital may be allocated more efficiently. In addition, the proposed servicing criteria would promote the comparability of reports of different issuers, thus promoting investor analysis as well as competition among such issuers.
We request comment on whether the proposals, if adopted, would promote efficiency, competition and capital formation or have an impact or burden competition. Commenters are requested to provide empirical data and other factual support for their views if possible.
The Commission hereby certifies pursuant to 5 U.S.C. 605(b) that the proposals contained in this release, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposals relate to the registration, disclosure and reporting requirements for asset-backed securities under the Securities Act and the Exchange Act. Securities Act Rule 157
We solicit written comments regarding this certification. We request
The proposals contained in this document are being proposed under the authority set forth in Sections 2, 6, 7, 8, 10, 17, 19 and 28 of the Securities Act,
Accountants, Accounting, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities.
Advertising, Reporting and recordkeeping requirements, Securities.
Brokers, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is proposed to be amended as follows.
1. The authority citation for part 210 continues to read as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 78c, 78j-1, 78
2. Section 210.1-02 is amended by adding paragraph (a)(3) to read as follows:
(a)(1) * * *
(3)
3. In 17 CFR Part 210, remove the phrase “as defined in § 240.13a-14(g) and § 240-15d-14(g) of this chapter” and add, in its place, the phrase “as defined in § 229.1101 of this chapter” in the following places:
a. In the introductory text of § 210.2-01(c)(7); and
b. In the introductory text of § 210.2-07(a).
4. Amend § 210.2-02 by:
a. Revising the section heading; and
b. Adding paragraph (g).
The addition and revisions read as follows:
(g)
5. The authority citation for Part 228 continues to read in part as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss, 78
6. Amend § 228.10 by revising paragraph (a)(1)(iii) to read as follows:
(a)
(1)
(iii) Is not an investment company and is not an asset-backed issuer (as defined in § 229.1101 of this chapter); and
7. Amend § 228.308 by revising the “Instructions to Item 308” to read as follows:
8. Amend § 228.401, “Instructions to Item 401(e),” by removing Instruction 4 and redesignating Instruction 5 as Instruction 4.
9. Amend § 228.406, “Instructions to Item 406,” by removing Instruction 3.
10. The authority citation for Part 229 continues to read in part as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78
11. Amend § 229.10, introductory text of paragraph (d), by revising the second sentence to read as follows:
(d)
12. Amend § 229.202 by:
a. Removing the authority citation following the section; and
b. Adding Instruction 6 to the “Instructions to Item 202”.
The addition reads as follows.
6. For asset-backed securities, see also Item 1112 of Regulation AB (§ 229.1112).
13. Amend § 229.308 by revising the “Instructions to Item 308” to read as follows:
14. Amend § 229.401 by removing the phrase “(as defined in §240.13a-14(g) and § 6240.15d-14(g) of this chapter)” from Instruction 4 of the Instructions to Item 401(h) and adding, in its place, the phrase “(as defined in § 229.1101)”.
15. Amend § 229.406, “Instructions to Item 406,” by removing Instruction 3.
16. Amend § 229.501 by adding an Instruction to the end of § 229.501 to read as follows:
17. Amend § 229.503 by adding an Instruction to the end of § 229.503 to read as follows:
18. Amend § 229.512 by:
a. Adding a paragraph after the paragraph that begins “
b. Adding paragraph (k).
The revisions read as follows:
(a) * * *
(1) * * *
(iii) * * *
(k)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 of a third party that is incorporated by reference in the registration statement in accordance with Item 1100(c)(1) of Regulation AB (17 CFR 229.1100(c)(1)) shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
19. Amend § 229.601 by: a. Revising the exhibit table; b. Redesignating the text of paragraph (b)(31) as paragraph (b)(31)(i); c. Adding paragraph (b)(31)(ii); and d. Revising paragraphs (b)(33) through (b)(98).
The revisions read as follows.
(a)
(b)
(31)(i) * * *
(ii)
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of [identify the issuing entity];
2. Based on my knowledge, the information in these reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in those reports;
4. [I am responsible for reviewing the activities performed by the servicer(s) and based on my knowledge and the compliance review conducted in preparing the servicer compliance
[Based on my knowledge and the servicer compliance statement required in this report under Item 1121 of Regulation AB, and except as disclosed in the reports, the servicer has fulfilled its obligations under the servicing agreement; and]
5. This report discloses all material instances of noncompliance with the servicing criteria as provided in Item 1120 of Regulation AB based on an assessment of compliance with such criteria.
[In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties [name of servicer, sub-servicer, co-servicer, depositor or trustee].]
(33)
(34)
(35)
(36) through (98) [Reserved]
20. Amend paragraph § 229.701(e) by revising the phrase “Form 10-KSB or Form 10-K (§§ 249.308, 249.308b, 249.308a, 249.310b or 249.310)” to read “Form 10-KSB, Form 10-K or Form 10-D (§§ 249.308, 249.308b, 249.308a, 249.310b, 249.310 or 249.312)”.
21. Add subpart 229.1100 consisting of §§ 229.1100 through 229.1121 to read as follows:
(a)
(b)
(1) Present delinquency experience in 30-day increments, beginning with assets 30-59 days delinquent, through the point that assets are written off or charged off as uncollectable. At a minimum, present such information by number of accounts and dollar amount. Present statistical information in a tabular or graphical format, if such presentation will aid understanding.
(2) Disclose the total amount of delinquent assets as a percentage of the aggregate asset pool.
(3) Present loss information, as applicable, regarding charge-offs, charge-off rate, gross losses, recoveries and net losses (with a description of how these terms are defined), the number and amount of assets experiencing a loss and the number and amount of assets with a recovery, the ratio of aggregate net losses to average portfolio balance and the average of net loss on all assets that have experienced a net loss.
(4) Categorize all delinquency and loss information by pool asset type.
(5) Describe how delinquencies, charge-offs and uncollectable accounts are defined or determined, addressing the effect of any grace period, re-aging, restructure or other practices on delinquency experience. In a registration statement under the Securities Act or the Exchange Act or otherwise if delinquency and loss information is being presented with respect to the sponsor, also provide such information with respect to the sponsor for assets of the type securitized.
(6) Describe any other material information regarding delinquencies and losses particular to the pool asset type(s), such as repossession information, foreclosure information and real estate owned (REO) or similar information.
(c)
If financial information of a third party is required in a filing by Item 1111(b) of this Regulation AB (Information regarding significant obligors) or Item 1113(b)(2) of this Regulation AB (Information regarding significant enhancement providers), such information may be provided as follows:
(1)
(i) Such third party or the entity that consolidates the third party is required to file reports with the Commission pursuant to section 13(a) or 15(d) of the Exchange Act.
(ii) Such third party or the entity that consolidates the third party has filed all reports and other materials required to be filed by such requirements during the preceding 12 months (or such shorter period that such party was required to file such reports and materials).
(iii) The reports filed by such third party, or entity that consolidates the third party, include (or properly incorporate by reference) the financial statements of such third party or such information is consolidated into the financial statements of the entity that consolidates the third party.
(iv) The filing incorporating the information by reference describes any and all material changes to the incorporated information which have occurred subsequent to the filing of the incorporated information.
(v) If included in a prospectus or registration statement, the prospectus also states that all documents subsequently filed by such third party, or the entity that consolidates the third party, pursuant to section 13(a) or 15(d) of the Exchange Act prior to the termination of the offering also shall be deemed to be incorporated by reference into the prospectus.
1. In addition to the conditions in paragraph (c)(1) of this section, any information incorporated by reference must comply with all applicable Commission rules pertaining to incorporation by reference, such as Item 10(d) of Regulation S-K (§ 229.10(d)), Rule 303 of Regulation S-T (§ 232.303 of this chapter), Rule 411 of Regulation C (§ 230.411 of this chapter), and Rules 12b-23 and 12b-32 under the Exchange Act (§§ 240.12b-23 and 240.12b-32 of this chapter).
2. In addition, any applicable requirements under the Securities Act or the rules and regulations of the Commission regarding the filing of a written consent for the use of incorporated material apply to the material incorporated by reference. See, for example, § 230.439 of this chapter.
3. Any undertakings set forth in Item 512 of Regulation S-K (§ 229.512) apply to any material incorporated by reference in a registration statement or prospectus.
(2)
(i) Neither the third party nor any of its affiliates has had a direct or indirect agreement, arrangement, relationship or understanding, written or otherwise, relating to the asset-backed securities transaction, and neither the third party nor any of its affiliates is an affiliate of the sponsor, depositor, issuing entity or underwriter of the asset-backed securities transaction.
(ii) Any of the following is true:
(A) The third party is eligible to use Form S-3 or F-3 (§§ 239.13 or 239.33 of this chapter) for a primary offering of non-investment grade securities pursuant to General Instruction I.B.1 of such forms.
(B) The third party meets the requirements of General Instruction I.A. of Form S-3 or General Instructions 1.A.1, 2, 3, 4 and 6 of Form F-3 and the pool assets relating to such third party are non-convertible investment grade securities, as described in General Instruction 1.B.2 of Form S-3 or Form F-3.
(C) If the third party does not meet the conditions of paragraphs (c)(2)(ii)(A) or (c)(2)(ii)(B) of this section and the pool assets relating to the third party are fully and unconditionally guaranteed by a direct or indirect parent of the third party, General Instruction I.C.3 of Form S-3 or General Instruction I.A.5(iii) of Form F-3 is met with respect to the pool assets relating to such third party and the requirements of Rule 3-10 of Regulation S-X (§ 210.3-10 of this chapter) are satisfied regarding the information in the reports to be referenced.
(D) If the pool assets relating to the third party are guaranteed by a wholly owned subsidiary of the third party and the subsidiary does not meet the conditions of paragraphs (c)(2)(ii)(A) or (c)(2)(ii)(B) of this section, the criteria in either paragraph (c)(2)(ii)(A) or paragraph (c)(2)(ii)(B) of this section are met with respect to the third party and the requirements of Rule 3-10 of Regulation S-X (§ 210.3-10 of this chapter) are satisfied regarding the information in the reports to be referenced.
(E) The pool assets relating to such third party are asset-backed securities and the third party is filing reports pursuant to section 12 or 15(d) of the Exchange Act (15 U.S.C. 78
(F) The third party is a U.S. government-sponsored enterprise, has outstanding securities held by non-affiliates with an aggregate market value of $75 million or more, and makes information publicly available on an annual and quarterly basis, including audited financial statements prepared in accordance with generally accepted accounting principles covering the same periods that would be required for audited financial statements under Regulation S-X (§§ 210.1-01 through 210.12-29 of this chapter) and non-financial information consistent with that required by Regulation S-K (§§ 229.10 through 229.1121).
(iii) You include an undertaking that if such third party ceases to meet the requirements of paragraphs (c)(2)(i) and (ii) of this section, you will either provide the information required by Item 1111(b) of this Regulation AB, as applicable, relating to such third party or terminate the transaction or that portion of the transaction.
(d)
(1) If the asset-backed securities transaction involves additional or intermediate parties not specifically identified in this Regulation AB, the disclosure required by this Regulation AB includes information to the extent material regarding any such party and its role, function and experience in relation to the asset-backed securities and the asset pool. Describe the material terms of any agreement with such party regarding the transaction, and file such agreement as an exhibit.
(2) If the asset pool backing the asset-backed securities includes one or more pool assets representing an interest in or the right to the payments or cash flows of another asset pool, then for purposes of this Regulation AB and §§ 240.13a-18 and 240.15d-18 of this chapter, references to the asset pool and the pool assets of the issuing entity also include the other asset pool and its pool assets if the following conditions are met:
(i) Both the issuing entity for the asset-backed securities and the entity issuing the pool asset to be included in the issuing entity's asset pool were established under the direction of the same sponsor or depositor.
(ii) The pool asset was created solely to satisfy legal requirements or otherwise facilitate the structuring of the asset-backed securities transaction.
Reference to the underlying asset pool includes, without limitation, compliance with applicable servicing criteria referenced in §§ 240.13a-18 and 240.15d-18 of this chapter and the servicer compliance statement required by Item 1121 of this Regulation AB. In addition, provide clear and concise disclosure, including by flow chart or other illustration, of the transaction and the various parties involved.
(e)
(f)
The following definitions apply to the terms used in Regulation AB (§§ 229.1100 through 229.1121), unless specified otherwise:
(a)
(1) A brief summary of the structure of an offering of asset-backed securities that sets forth the name of the issuer, the estimated size of the offering and the proposed structure of the offering (such as the number of classes, seniority and priority and other terms of payment).
(2) Descriptive factual information regarding the pool assets underlying an offering of asset-backed securities, typically including data regarding the contractual and related characteristics of the underlying pool assets, such as weighted average coupon, weighted average maturity and other factual information regarding the type of assets comprising the pool.
(3) Static pool data, as referenced in Items 1104(e) and 1110(c) of this Regulation AB.
(4) Statistical information displaying for a particular class or classes of asset-backed securities the yield, average life, expected maturity, interest rate sensitivity, cash flow characteristics, total rate of return, option adjusted spread or other financial or statistical information relating to the class or classes under specified prepayment, interest rate, loss or other hypothetical scenarios. Examples of such information include:
(i) The statistical results of interest rate sensitivity analyses containing data regarding the impact on the yield or other financial characteristics of a class of securities resulting from changes in interest rates at one or more assumed prepayment speeds.
(ii) Statistical information showing the principal and interest cash flows that would be associated with a particular class of asset-backed securities at a specified prepayment speed.
(iii) Statistical information reflecting the financial impact of losses based on a variety of loss or default experience, prepayment, interest rate and related assumptions.
(b)
(c)(1)
(2) The following additional conditions apply in order to be considered an
(i) Neither the depositor nor the issuing entity is an investment company under the Investment Company Act of 1940 (15 U.S.C. 80a-1
(ii) The activities of the issuing entity for the asset-backed securities are limited to passively owning or holding the pool of assets, issuing the asset-backed securities supported or serviced by those assets, and other activities reasonably incidental thereto.
(iii) No non-performing assets are part of the original asset pool at the time of issuance of the asset-backed securities.
(iv) Delinquent assets do not constitute 50% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities.
(v) With respect to securities that are backed by leases, the portion of the cash flow to repay the securities anticipated to come from the residual value of the physical property underlying the leases does not constitute:
(A) For automobile leases, 60% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities.
(B) For all other leases, 50% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities.
(3) Notwithstanding the requirement in paragraph (c)(1) of this section that the asset pool be a discrete pool of assets, the following are considered to be a discrete pool of assets for purposes of being considered an
(i)
(ii)
(iii)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1) An obligor or a group of affiliated obligors on any pool asset or group of pool assets if such pool asset or group of pool assets represents 10% or more of the asset pool.
(2) A single property or group of related properties securing a pool asset or a group of pool assets if such pool asset or group of pool assets represents 10% or more of the asset pool.
(3) A lessee or group of affiliated lessees if the related lease or group of leases represents 10% or more of the asset pool.
1. Regarding paragraph (k)(3) of this section, the calculation must focus on the leases whose cash flow supports the asset-backed securities directly or indirectly (including the residual value of the physical property underlying the leases if a portion of the cash flow to repay the asset-backed securities is anticipated to come from the residual value of such property), regardless of whether the asset pool contains the leases themselves, mortgages on properties that are the subject of the leases or other assets related to the leases.
2. If separate pool assets, or properties underlying pool assets, are cross-defaulted and/or cross-collateralized, such pool assets are to be aggregated and considered together in determining concentration levels.
3. If the pool asset is a mortgage or lease relating to real estate, the pool asset is non-recourse to the obligor, and the obligor does not manage the property or does not own other assets and has no other operations, then the obligor need not be considered a separate significant obligor from the real estate. Otherwise, the obligor is a separate significant obligor.
(l)
In addition to the information required by Item 501 of Regulation S-K (§ 229.501), provide the following information on the outside front cover page of the prospectus. Present information regarding multiple classes in tables if doing so will aid understanding.
(a) Identify the sponsor, the depositor and the issuing entity (if known).
(b) In identifying the title of the securities, include the series number, if applicable. If there is more than one class of securities offered, state the class designations of the securities offered.
(c) Identify the asset type(s) being securitized.
(d) Include a statement, if applicable and appropriately modified to the transaction, that the securities represent the obligations of the issuing entity only and do not represent the obligations of or interest in the sponsor, depositor or any of their affiliates.
(e) Identify the aggregate principal amount of all securities offered and the principal amount, if any, of each class of securities offered. If a class has no principal amount, disclose that fact, and, if applicable, state the notional amount, clearly identifying that the amount is a notional one. If the amounts are approximate, disclose that fact.
(f) Indicate the interest rate or specified rate of return of each class of security offered. If a class of securities does not bear interest or a specified return, disclose that fact. If the rate is based on a formula or is calculated in reference to a generally recognized interest rate index, such as a U.S. Treasury securities index, either provide the formula on the cover, or indicate that the rate is variable, indicate the index upon which the rate is based and
(g) Identify the distribution frequency, by class or series where applicable, and the first expected distribution date for the asset-backed securities.
(h) Briefly describe any credit enhancement for the transaction and identify any enhancement provider referenced in Item 1113(b) of this Regulation AB.
(a)
(1) Identify the participants in the transaction, including the sponsor, depositor, issuing entity, servicers and trustee, and their respective roles. Describe the roles briefly if they are not apparent from the title of the role. Identify any originator referenced in Item 1109 of this Regulation AB and any significant obligor.
(2) Briefly identify the pool assets and summarize briefly the size and material characteristics of the asset pool. Identify the cut-off date or similar date for establishing the composition of the asset pool, if applicable.
(3) State briefly the basic terms of each class of securities offered. In particular:
(i) Identify the classes offered by the prospectus and any classes issued in the same transaction or residual or equity interests in the transaction that are not being offered by the prospectus.
(ii) State the interest rate or rate of return on each class of securities offered, to the extent that the rates on any class of securities were not disclosed in full on the prospectus cover page.
(iii) State the expected final and final scheduled maturity or principal distribution dates, if applicable, of each class of securities offered.
(iv) Identify the denominations in which the securities may be issued.
(v) Identify the distribution frequency on the securities.
(vi) Summarize the flow of funds, payment priorities and allocations among the classes of securities offered, the classes of securities that are not offered, and fees and expenses, to the extent necessary to understand the payment characteristics of the classes that are offered by the prospectus.
(vii) Identify any events in the transaction agreements that can trigger liquidation or amortization of the asset pool or other performance triggers that would alter the transaction structure or the flow of funds.
(viii) Identify any optional or mandatory redemption or termination features.
(ix) Identify any credit enhancement or other support for the transaction, as referenced in Item 1113(a) of this Regulation AB, and briefly describe what protection or support is provided by the enhancement. Identify any enhancement provider referenced in Item 1113(b) of this Regulation AB. Summarize how losses not covered by credit enhancement will be allocated to the securities.
(4) Identify any outstanding series or classes of securities that are backed by the same asset pool or otherwise have claims on the pool assets. In addition, state if additional series or classes of securities may be issued that are backed by the same asset pool and briefly identify the circumstances under which those additional securities may be issued. Specify if security holder approval is necessary for such issuances and if security holders will receive notice of such issuances.
(5) Identify if the transaction will include prefunding or revolving periods. If so, indicate:
(i) The term or duration of the prefunding or revolving period.
(ii) For prefunding periods, the amount of proceeds to be deposited in the prefunding account.
(iii) For revolving periods, the maximum amount of additional assets that may be acquired during the revolving period.
(iv) The percentage of the asset pool and any class or series of the asset-backed securities represented by the prefunding account or the revolving period.
(v) Any limitation on the ability to add pool assets.
(vi) The requirements for assets that may be added to the pool.
(6) If pool assets can otherwise be added, removed or substituted (for example, in the event of a breach in representations or warranties regarding pool assets), summarize briefly the circumstances under which such actions can occur.
(7) Summarize the amount or formula for calculating the fee that the servicer will receive for performing its duties, and identify from what source those fees will be paid and the distribution priority of those fees.
(8) Summarize the federal income tax issues material to investors of each class of securities offered.
(9) Indicate whether the issuance or sale of any class of offered securities is conditioned on the assignment of a rating by one or more rating agencies. If so, identify each rating agency and the minimum rating that must be assigned.
(b)
Provide the following information about the sponsor:
(a) State the sponsor's name and describe the sponsor's form of organization.
(b) Describe the general character of the sponsor's business.
(c) Describe the sponsor's securitization program and state how long the sponsor has been engaged in the securitization of assets. The description must include a general discussion of the sponsor's experience in securitizing assets of any type as well as a more detailed discussion of the sponsor's experience in and overall procedures for originating or acquiring and securitizing assets of the type included in the current transaction. Information regarding the size, composition and growth of the sponsor's portfolio of assets of the type to be securitized and information or factors related to the sponsor that may be material to an analysis of the origination or performance of the pool assets, such as whether any prior securitizations organized by the sponsor have defaulted or experienced an early amortization triggering event, should be included to the extent material.
(d) Describe the sponsor's roles and responsibilities in its securitization program, including whether the sponsor or an affiliate is responsible for originating, acquiring, pooling or servicing the pool assets, and the
(e)
If the depositor is not the same entity as the sponsor, provide separately the information regarding the depositor called for by paragraphs (a) and (b) and, to the extent information would be materially different, paragraph (c) of Item 1104 of this Regulation AB. In addition, provide the following information:
(a) Describe the ownership structure of the depositor.
(b) Describe the general character of any activities the depositor is engaged in other than securitizing assets and the time period during which it has been so engaged.
(c) Describe any continuing duties of the depositor after issuance of the asset-backed securities being registered regarding the asset-backed securities or the pool assets.
Provide the following information about the issuing entity:
(a) State the issuing entity's name and describe the issuing entity's form of organization, including the State or other jurisdiction under whose laws the issuing entity is organized. File the issuing entity's governing documents as an exhibit.
(b) Describe the permissible activities or any restrictions on the activities of the issuing entity under its governing documents, including any restrictions on the ability to issue or invest in additional securities, to borrow money or to make loans to other persons. Describe any provisions in the issuing entity's governing documents providing for modification of the issuing entity's governing documents, including its permissible activities.
(c) Describe any specific discretionary activities with regard to the administration of the asset pool or the asset-backed securities, and identify the person or persons who will be authorized to exercise such discretion.
(d) Describe any assets owned or to be owned by the issuing entity, apart from the pool assets, as well as any liabilities of the issuing entity, apart from the asset-backed securities. Disclose the fiscal year end of the issuing entity.
(e) If the issuing entity has executive officers, a board of directors or persons performing similar functions, provide the information required by Items 401, 402 and 404 of Regulation S-K (§§ 229.401, 402 and 404) for the issuing entity.
(f) Describe the terms of any management or administration agreement regarding the issuing entity. File any such agreement as an exhibit.
(g) Describe the capitalization of the issuing entity and the amount or nature of any equity contribution to the issuing entity by the sponsor, depositor or other party.
(h) Describe the sale or transfer of the pool assets to the issuing entity as well as the creation (and perfection and priority status) of any security interest in favor of the issuing entity, the trustee, the asset-backed security holders or others, including the material terms of any agreement providing for such sale, transfer or creation of a security interest. File any such agreements as an exhibit. In addition to an appropriate narrative description, also provide this information graphically or in a flow chart if it will aid understanding.
(i) State the amount paid or to be paid for the pool assets, the principles followed or to be followed in determining such amount and identify the persons making the determination and their relationship, if any, with the issuing entity, the depositor, the sponsor, originator identified pursuant to Item 1109 of this Regulation AB, or any underwriter.
(j) If expenses incurred in connection with the selection and acquisition of the pool assets are to be payable from offering proceeds, disclose the amount of such expenses. If such expenses are to be paid to the sponsor, servicer, depositor, issuing entity, originator identified pursuant to Item 1109 of this Regulation AB, any underwriter or any affiliate of the foregoing, separately identify the type and amount of expenses paid to each such party.
(k) Describe to the extent material any provisions or arrangements included to address any one or more of the following issues:
(1) Whether any security interests granted in connection with the transaction are perfected, maintained and enforced.
(2) Whether declaration of bankruptcy, receivership or similar proceeding with respect to the issuing entity can occur.
(3) Whether in the event of a bankruptcy, receivership or similar proceeding with respect to the sponsor, originator, depositor or other seller of the pool assets, the issuing entity's assets will become part of the bankruptcy estate or subject to the bankruptcy control of a third party.
(4) Whether in the event of a bankruptcy, receivership or similar proceeding with respect to the issuing entity, the issuing entity's assets will become subject to the bankruptcy control of a third party.
(l) If applicable law prohibits the issuing entity from holding the pool assets directly (for example, an “eligible lender” trustee must hold student loans originated under the Federal Family Education Loan Program of the Higher Education Act of 1965 (20 U.S.C. 1001
Provide the following information for the servicer. Where servicing of the pool assets utilizes multiple servicers, such as master servicers that oversee the actions of other servicers, primary servicers that have primary contact with the obligor, or special servicers for specific servicing functions, provide the information for the master servicer, each affiliated servicer, each unaffiliated servicer that services 10% or more of the pool assets and any other servicer that performs work-outs, foreclosures or other material aspect of the servicing of the pool assets upon which the performance of the pool assets or the asset-backed securities is materially dependent. In addition, provide clear
(a)
(2) Describe the general character of the servicer's business and state how long the servicer has been servicing assets. The description must include a general discussion of the servicer's experience in servicing assets of any type as well as a more detailed discussion of the servicer's experience in, and procedures for, servicing assets of the type included in the current transaction. Information regarding the size, composition and growth of the servicer's portfolio of serviced assets of the type to be securitized and information on factors related to the servicer that may be material to an analysis of the servicing of the pool assets, such as collection processes, billing processes, computer systems and back-up systems, should be included to the extent material.
(3) Describe any material changes to the servicer's policies or procedures in servicing assets of the same type as the pool assets during the past three years.
(4) Provide information regarding the servicer's financial condition where it could have a material impact on one or more aspects of servicing of the pool assets and where those aspects could materially impact pool performance on the asset-backed securities.
(b)
(2) Describe the manner in which collections on the pool assets will be collected and maintained, such as through a segregated collection account, and the extent of commingling of funds that occurs or may occur from the pool assets with other funds, serviced assets or other assets of the servicer.
(3) Describe to the extent material any special or unique factors involved in servicing the particular type of assets included in the asset pool, such as subprime assets, and the servicer's processes and procedures designed to address such factors.
(4) Describe the terms of any arrangements whereby the servicer is required or permitted to provide advances of funds regarding collections, cash flows or distributions, including interest or other fees charged for such advances and terms of recovery by the servicer of such advances. To the extent material, provide statistical information regarding servicer advances on the pool assets and the servicer's overall servicing portfolio for the past three years.
(5) Describe the servicer's process for handling delinquencies, losses, bankruptcies and recoveries, such as through liquidation of the underlying collateral, note sale by a special servicer or borrower negotiation or workouts.
(6) Describe any ability of the servicer to waive or modify any terms, fees, penalties or payments on the pool assets and the effect of any such ability, if material, on the potential cash flows from the pool assets.
(7) If the servicer has custodial responsibility for the pool assets, describe arrangements regarding the safekeeping and preservation of the assets, such as the physical promissory notes, and procedures to reflect the segregation of the pool assets from other serviced assets. If the servicer does not have custodial responsibility for the pool assets, disclose that fact, identify the party that has such responsibility and provide the information called for by this paragraph for such party.
(8) Describe any material minimum servicing requirements the servicer must meet not specified in Item 1120(d) of this Regulation AB.
(9) Describe any limitations on the servicer's liability regarding the asset-backed securities transaction.
(c)
(1) Provisions for selection of a successor servicer and financial or other requirements that must be met by a successor servicer.
(2) The process for transferring servicing to a successor servicer.
(3) Provisions for payment of expenses associated with a servicing transfer and any additional fees charged by a successor servicer. Specify the amount of any funds set aside for a servicing transfer.
(4) Arrangements, if any, regarding a back-up servicer for the pool assets and the identity of any such back-up servicer.
Provide the following information for each trustee:
(a) State the trustee's name and describe the trustee's form of organization.
(b) Describe the general character of the trustee's business and to what extent the trustee has had prior experience serving as a trustee for asset-backed securities transactions involving similar pool assets.
(c) Describe the trustee's duties and responsibilities regarding the asset-backed securities under the governing documents and under applicable law. In addition, describe any actions required by the trustee, including whether notices are required to investors, rating agencies or other third parties, upon an event of default, potential event of default (and how defined) or other breach of a transaction covenant and any required percentage of a class or classes of asset-backed securities that is needed to require the trustee to take action.
(d) Describe any limitations on the trustee's liability regarding the asset-backed securities transaction.
(e) Describe any indemnification provisions that entitle the trustee to be indemnified from the cash flow that otherwise would be used to pay the asset-backed securities.
(f) Describe any contractual provisions or understandings regarding the trustee's removal, replacement or resignation, as well as how the expenses associated with changing from one trustee to another trustee will be paid.
Provide the following information for any originator or group of affiliated originators, apart from the sponsor, that originated, or is expected to originate, 10% or more of the pool assets:
(a) The originator's name and form of organization.
(b) To the extent material, a description of the originator's origination program and how long the originator has been engaged in originating assets. The description must include a discussion of the originator's experience in originating assets of the type included in the current transaction. In providing the description, include, if material, information regarding the size and composition of the originator's origination portfolio as well as information material to an analysis of the performance of the pool assets, such as the originator's credit-granting or underwriting criteria for the asset types being securitized.
Describe the pool assets, including the information described in this Item 1110. Present statistical information in tabular or graphical format, if such presentation will aid understanding. Present statistical information in appropriate distributional groups or incremental ranges in addition to presenting appropriate overall pool totals, averages and weighted averages, if such presentation will aid in the understanding of the data. In addition to
(a)
(1) A brief description of the type or types of pool assets to be securitized.
(2) A general description of the material terms of the pool assets.
(3) A description of the solicitation, credit-granting or underwriting criteria used to originate or purchase the pool assets, including, to the extent known, any changes in such criteria and the extent to which such policies and criteria are or could be overridden.
(4) The method and criteria by which the pool assets were selected for the transaction.
(5) The cut-off date or similar date for establishing the composition of the asset pool, if applicable.
(6) If legal or regulatory provisions (such as bankruptcy, consumer protection, predatory lending, privacy, property rights or foreclosure laws or regulations) may materially affect pool asset performance or payments or expected payments on the asset-backed securities, briefly identify these provisions and their effects on such items.
(b)
(1) Number of each type of pool assets.
(2) Asset size, such as original balance and outstanding balance as of a designated cut-off date.
(3) Interest rate or rate of return, including type of interest rate if the pool includes different types, such as fixed and floating rates, and annual percentage rate.
(4) Capitalized or uncapitalized accrued interest.
(5) Age, maturity, remaining term, average life (based on different prepayment assumptions), current payment/prepayment speeds and pool factors, as applicable.
(6) Servicer, if different servicers service different pool assets.
(7) If a loan or similar receivable:
(i) Amortization period.
(ii) Loan purpose (
(iii) Loan-to-value (LTV) ratios and debt service coverage ratios (DSCR), as applicable.
(iv) Type and/or use of underlying property, product or collateral (
(v) Number of points or other origination charges paid on the pool assets.
(8) If a receivable or other financial asset with a revolving balance, such as a credit card receivable:
(i) Monthly payment rate.
(ii) Maximum credit lines.
(iii) Average account balance.
(iv) Yield percentages.
(v) Type of receivable account.
(vi) Finance charges, fees and other income earned.
(vii) Gross and net purchases and returns granted.
(viii) Percentage of full-balance and minimum payments made.
(9) If the asset pool includes commercial mortgages, the following information, to the extent material:
(i) Net cash flow information that will be generated from the pool assets and the components of net cash flow.
(ii) The location and general character of all materially important real properties underlying the pool assets, including information as to the present or proposed use of and insurance for such properties.
(iii) The nature and amount of all other material mortgages, liens or encumbrances against such properties and their priority.
(iv) Any proposed program for the renovation, improvement or development of such properties, including the estimated cost thereof and the method of financing to be used.
(v) The general competitive conditions to which such properties are or may be subject.
(vi) Management of such properties.
(vii) Occupancy rate expressed as a percentage for each of the last five years.
(viii) Principal business, occupations and professions carried on in, or from the building.
(ix) Number of tenants occupying 10% or more of the total rentable square footage of such properties and principal nature of business of such tenant, and the principal provisions of the leases with those tenants including, but not limited to: rental per annum, expiration date, and renewal options.
(x) The average effective annual rental per square foot or unit for each of the last three years prior to the date of filing.
(xi) Schedule of the lease expirations for each of the ten years starting with the year in which the registration statement is filed, stating:
(A) The number of tenants whose leases will expire.
(B) The total area in square feet covered by such leases.
(C) The annual rental represented by such leases.
(D) The percentage of gross annual rental represented by such leases.
(10) Whether the pool asset is secured or unsecured, and if secured, the type(s) of collateral.
(11) Ranges of standardized credit scores of obligors and other information regarding obligor credit quality.
(12) Billing and payment procedures, including frequency of payment, payment options, fees, charges and origination or payment incentives.
(13) Information about the origination channel and origination process for the pool assets, such as originator information (and how acquired) and the level of origination documentation required, as applicable.
(14) Geographic distribution, such as by state or other material geographic region. If 10% or more of the pool assets are or will be located in any one state or other geographic region, provide the following information:
(i) Any economic or other factors specific to such state or region that may
(ii) If material, statistical data referred to in this Item 1110(b) for each such geographic concentration.
(15) Other concentrations material to the asset type (
(c)
(d)
(1) Disclose the specific sources of funds that will be used to make the payments and distributions on the asset-backed securities, and, if applicable, provide information on the relative amount and percentage of funds that are to be derived from each source, including a description of any assumptions, data, models and methodology used to derive such amounts. If payments on different classes or different categories of payments on or related to the asset-backed securities (
(2)
(i) How the residual values used to structure the transaction were estimated, including an explanation of any material discount rates, models or assumptions used and who selected such rates, models or assumptions.
(ii) Any material procedures or requirements incorporated to preserve residual values during the term of the lease, such as lessee responsibilities, prohibitions on subletting, indemnification or required insurance or guarantees.
(iii) The procedures by which the residual values will be realized and by whom those procedures will be carried out, including information on the experience of such party, any affiliations with a party described in Item 1117(a) of this Regulation AB and the compensation arrangements with such party.
(iv) Whether the pool assets are open-end leases (
(v) Any lessor obligations that are required under the leases, and the effect or potential effect on the asset-backed securities from failure by the lessor to perform its obligations.
(vi) Statistical information regarding estimated residual values for the pool assets.
(vii) Summary historical statistics on turn-in rates, if applicable, and residual value realization rates by the party responsible for such process over the past three years, or such longer period as is material to an evaluation of the pool assets.
(viii) The effect on security holders if not enough cash flow is received from the realization of the residual values, whether there are any provisions to address this contingency, and how any cash flow greater than that necessary to pay security holders will be allocated.
(e)
(f)
(g)
(1) The term or duration of any prefunding or revolving period.
(2) For prefunding periods, the amount of proceeds to be deposited in the prefunding account.
(3) For revolving periods, the maximum amount of additional assets that may be acquired during the revolving period.
(4) The percentage of the asset pool and any class or series of the asset-backed securities represented by the prefunding account or the revolving account.
(5) Triggers or events that would trigger limits on or terminate the prefunding or revolving period and the effects of such triggers. In particular for a revolving period, describe the operation of the revolving period and the amortization period.
(6) When and how new pool assets may be acquired during the prefunding or revolving period, and if, when and how pool assets can be removed or substituted. Describe any limits on the amount, type or speed with which pool assets may be acquired, substituted or removed.
(7) The acquisition or underwriting criteria for additional pool assets to be acquired during the prefunding or revolving period, including a description of any differences from the criteria used to select the current asset pool.
(8) Which party has the authority to add, remove or substitute assets from the asset pool or determine if such pool assets meet the acquisition or underwriting criteria for additional pool assets. In addition, disclose if there will be any independent verification of such person's exercise of authority or determinations.
(9) Any requirements to add or remove minimum amounts of pool assets and any effects of not meeting those requirements.
(10) If applicable, the procedures and standards for the temporary investment of funds in a prefunding or revolving account pending use (including the disposition of gains and losses on pending funds) and a description of the financial products or instruments eligible for such accounts.
(11) The circumstances under which funds in a prefunding or revolving account will be returned to investors or otherwise disposed of.
(12) A statement of how investors will be notified of changes to the asset pool.
(a)
(1) The name of the obligor.
(2) The organizational form and general character of the business of the obligor.
(3) The nature of the concentration of the pool assets with the obligor.
(4) The material terms of the pool assets or the agreements with the obligor involving the pool assets.
(b)
(2) If pool assets relating to a significant obligor represent 20% or more of the asset pool, provide financial statements meeting the requirements of Regulation S-X (§§ 210.1-01 through 210.12-29 of this chapter), except § 210.3-05 of this chapter and Article 11 of Regulation S-X (§§ 210.11-01 through 210.11-03 of this chapter), of the significant obligor. Financial statements of such obligor and its subsidiaries consolidated (as required by § 240.14a-3(b) of this chapter) shall be filed under this item.
1. No information need be provided pursuant to paragraph (b) of this section if the obligations of the significant obligor as they relate to the pool assets are backed by the full faith and credit of the United States.
2. No information need be provided pursuant to paragraph (b) of this section if the obligations of the significant obligor as they relate to the pool assets are backed by the full faith and credit of a foreign government (as defined in § 240.3b-4(a) of this chapter) if the pool assets are investment grade securities as defined in Item I.B.2 of Form S-3 (§ 239.13 of this chapter). If the pool assets are not investment grade securities, information required by paragraph (5) of Schedule B of the Securities Act (15 U.S.C. 77aa) regarding the foreign government may be incorporated by reference in lieu of providing the financial information required pursuant to paragraph (b) of this section.
3. If the significant obligor is an asset-backed issuer and the pool assets relating to the significant obligor are asset-backed securities, provide the information required by Items 1104 through 1113 and Item 1117 of this Regulation AB regarding such asset-backed securities in lieu of the information required by paragraph (b) of this section.
(a)
(1) The types or categories of securities that may be offered, such as interest-weighted or principal-weighted classes (including IO (interest only) or PO (principal only) securities), planned amortization or companion classes or residual or subordinated interests.
(2) The flow of funds for the transaction, including the payment allocations, rights and distribution priorities among all classes of the issuing entity's securities, and within each class, with respect to cash flows, credit enhancement or other support and any other structural features designed to enhance credit, facilitate the timely payment of monies due on the pool assets or owing to security holders, adjust the rate of return on the asset-backed securities, or preserve monies that will or might be distributed to security holders. In addition to an appropriate narrative discussion of the allocation and priority structure of pool cash flows, present the flow of funds graphically if doing so will aid understanding. In the flow of funds discussion, provide information regarding any requirements directing cash flows from the pool assets (such as to reserve accounts, cash collateral accounts or expenses) and the purpose and operation of such requirements.
(3) In describing the interest rate or rate of return on the asset-backed securities and how such amounts are payable, explain how the rate is determined and how frequently it will be determined. If the rate to be paid can be a combination of two or more rates (such as the lesser of a variable rate or the actual weighted average net coupon on the pool assets), provide sufficiently clear information regarding each rate and when each rate applies.
(4) How principal, if any, will be paid on the asset-backed securities, including maturity dates, amortization or principal distribution schedules, principal distribution dates, formulas for calculating principal distributions from the cash flows and other factors that will affect the timing or amount of principal payments for each class of securities.
(5) The denominations in which the asset-backed securities may be issued.
(6) Any specified changes to the transaction structure that would be triggered upon a default or event of default (such as a change in distribution priority among classes).
(7) Any liquidation, amortization, performance or similar triggers or events, and the rights of investors or changes to the transaction structure or flow of funds if such events were to occur.
(8) Whether the servicer or other party is required to provide periodic evidence of the absence of a default or of compliance with the terms of the transaction agreements.
(9) If applicable, the extent, expressed as a percentage, the transaction is overcollateralized or undercollateralized as measured by comparing the principal balance of the asset-backed securities to the original asset pool.
(10) Any provisions contained in other securities that could result in a cross-default or cross-collateralization.
(11) Any minimum standards, restrictions or suitability requirements regarding potential investors in purchasing the securities or any restrictions on ownership or transfer of the securities.
(12) Security holder vote required to amend the transaction documents and allocation of voting rights among security holders.
(b)
(2) Describe how cash held pending distribution or other uses is held and invested. Also describe the length of time cash will be held pending distributions to security holders. Identify the party or parties with access to cash balances and the authority to invest cash balances. Specify who determines any decisions regarding the deposit, transfer or disbursement of pool asset cash flows and whether there will be any independent verification of the transaction accounts or account activity.
(c)
(d)
(2) Disclose any requirements in the transaction agreements to maintain a minimum amount of excess cash flow or spread from, or retained interest in, the transaction and any actions that would be required or changes to the transaction structure that would occur if such requirements were not met.
(3) To the extent material to an understanding of the asset-backed securities, disclose any features or arrangements to facilitate a securitization of the excess cash flow or retained interest from the transaction, including whether any material changes to the transaction structure may be made without the consent of asset-backed security holders in connection with these securitizations.
(e)
(1) Relative priority of such additional securities to the securities being offered and rights to the underlying pool assets and their cash flows.
(2) Allocation of cash flow from the asset pool and any expenses or losses among the various series or classes.
(3) Terms under which such additional series or classes may be issued and pool assets increased or changed.
(4) The terms of any security holder approval or notification of such additional securities.
(f)
(i) Terms for triggering the redemption or termination.
(ii) The source of funds and amount of the redemption or repurchase price or formula for determining such amount.
(iii) The procedures for redemption or termination, including any notices to security holders.
(iv) If the amount allocated to security holders is reduced by losses, the policy regarding any amounts recovered after redemption or termination.
(2) The title of any class of securities with an optional or mandatory redemption or termination feature that may be exercised when 25% or more of the original principal balance of the pool assets is still outstanding must include the word “callable.”
(g)
(2) Describe to the extent material the degree to which each class of securities is sensitive to changes in the rate of payment on the pool assets (
(3) Describe any special allocations of prepayment risks among the classes of securities, and whether any class protects other classes from the effects of the uncertain timing of cash flow.
(a)
(1) Any external credit enhancement designed to ensure that the asset-backed securities or pool assets will pay in accordance with their terms, such as bond insurance, letters of credit or guarantees.
(2) Any mechanisms to ensure that payments on the asset-backed securities are timely, such as liquidity facilities, lending facilities, guaranteed investment contracts and minimum principal payment agreements.
(3) Any derivatives that are used to reduce or alter risk resulting from financial assets in the asset pool and that provide payments in return for payments on such assets, such as interest rate or currency swaps, or that are used to provide credit enhancement related to assets in the pool.
(4) Any internal credit enhancement as a result of the structure of the transaction that increases the likelihood that payments will be made on one or more classes of the asset-backed securities in accordance with their terms, such as subordination provisions, overcollateralization, reserve accounts, cash collateral accounts or spread accounts.
(b)
(1)
(i) The name of such enhancement provider.
(ii) The organizational form of enhancement provider.
(iii) The general character of the business of such enhancement provider.
(2)
(ii) If any entity or group of affiliated entities providing enhancement or other support for the asset-backed securities is liable or contingently liable to provide payments representing 20% or more of the cash flow supporting any class of the asset-backed securities, provide financial statements meeting the requirements of Regulation S-X (§§ 210.1-01 through 210.12-29 of this
1. The requirements in paragraph (b) of this section apply to all providers of external credit or liquidity enhancement, insurance or guarantees, counterparties to swap or hedging arrangements, interest rate exchange arrangements, interest rate cap or floor arrangements, currency exchange arrangements or similar arrangements, and any other parties providing external credit enhancement or other support for payments on the asset-backed securities. Enhancement may support payment on the pool assets or payments on the asset-backed securities themselves.
2. No information need be provided pursuant to paragraph (b)(2) of this section if the obligations of the enhancement provider are backed by the full faith and credit of the United States.
3. No information need be provided pursuant to paragraph (b)(2) of this section if the obligations of the enhancement provider are backed by the full faith and credit of a foreign government (as defined in § 240.3b-4(a) of this chapter) if the enhancement provider has an investment grade credit rating, as the term investment grade is used in Item I.B.2 of Form S-3 (§ 239.13 of this chapter). If the enhancement provider does not have an investment grade credit rating, information required by paragraph (5) of Schedule B of the Securities Act (15 U.S.C. 77aa) regarding the foreign government may be incorporated by reference in lieu of providing the financial information required pursuant to paragraph (b)(2) of this section.
Provide a brief, clear and understandable summary of:
(a) The tax treatment of the asset-backed securities transaction under federal income tax laws.
(b) The material federal income tax consequences of purchasing, owning and selling the asset-backed securities. If any of the material federal income tax consequences are not expected to be the same for investors in all classes offered by the registration statement, describe the material differences.
(c) The substance of counsel's tax opinion, including identification of the material consequences upon which counsel has not been asked, or is unable, to opine.
Describe briefly any legal proceedings pending or known to be threatened against the sponsor, depositor, trustee, issuing entity, servicer, enhancement provider, originator identified pursuant to Item 1109 of this Regulation AB, or other party identified pursuant to Item 1100(d)(1) of this Regulation AB, or of which any property of the foregoing is the subject, that is material to security holders. Include similar information as to any such proceedings known to be contemplated by governmental authorities.
(a)
(b)
(2) State that the public may read and copy any materials filed with the Commission at the Commission's Public Reference Room at 450 Fifth Street, NW., Washington, DC 20549. State that the public may obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330. State that the Commission maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the Commission and state the address of that site (
(c)
(2) Disclose whether other reports to security holders or information about the asset-backed securities will be made available in this manner.
(3) If filings will be made available in this manner, disclose the Web site address where such filings may be found.
(4) If filings and other reports will not be made available in this manner, describe the reasons why they will not and whether an identified transaction party voluntarily will provide electronic or paper copies of those filings free of charge upon request.
(a) Describe if so, and how, the sponsor, depositor or issuing entity is an affiliate (as defined in § 240.405 of this chapter) of any of the following parties as well as, to the extent material, if so, and how, any of the following parties are affiliates of any of the other following parties:
(1) Servicer.
(2) Trustee.
(3) Originator identified pursuant to Item 1109 of this Regulation AB.
(4) Significant obligor identified pursuant to Item 1111 of this Regulation AB.
(5) Enhancement provider identified pursuant to Item 1113 of this Regulation AB.
(6) Underwriter or promoter for the asset-backed securities.
(7) Any other material parties related to the asset-backed securities described in Item 1101(d)(1) of this Regulation AB.
(b) Describe whether there is, and if so the general character of, any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm's length transaction with an unrelated third party, apart from the asset-backed securities transaction, between the sponsor, depositor or issuing entity and any of the parties in paragraphs (a)(1) through (a)(7) of this section, or any affiliates of such parties, that currently exists or that existed during the past two years and that is material to an investor's understanding of the asset-backed securities.
Disclose whether the issuance or sale of any class of offered securities is conditioned on the assignment of a rating by one or more rating agencies, whether or not NRSROs. If so, identify each rating agency and the minimum rating that must be assigned. Describe any arrangements to have such rating monitored while the asset-backed securities are outstanding.
Describe the distribution for the related distribution period and the performance of the asset pool during the distribution period. Provide appropriate introductory and explanatory information to introduce any material terms, parties or abbreviations used. Present statistical information in tabular or graphical format, if such presentation will aid understanding. While the material information regarding the related distribution and pool performance will vary depending on the nature of the transaction, examples of material characteristics that may be common for many asset-backed securities transactions include:
(a) Any applicable record dates, accrual dates, determination dates for calculating distributions and actual distribution dates for the distribution period.
(b) Cash flows received and the sources thereof for distributions, fees and expenses (including portfolio yield, if applicable).
(c) Calculated amounts and distribution of the flow of funds for the period itemized by type and priority of payment, including:
(1) Fees or expenses accrued and paid, with an identification of the general purpose of such fees and the party receiving such fees or expenses.
(2) Payments accrued or paid with respect to enhancement or other support identified in Item 1113 of this Regulation AB (such as for outgoing swap payments, insurance premiums or other enhancement maintenance fees), with an identification of the general purpose of such payments and the party receiving such payments.
(3) Principal, interest and other distributions accrued and paid on the asset-backed securities by type and by class or series and any principal or interest shortfalls or carryovers.
(4) The amount of excess cash flow or excess spread and the disposition of excess cash flow.
(d) Beginning and ending principal balances of the asset backed securities.
(e) Interest rates applicable to the pool assets and the asset-backed securities, if variable.
(f) Beginning and ending balances of transaction accounts, such as reserve accounts, and account activity during the period.
(g) Any amounts drawn on any credit enhancement or other support identified in Item 1113 of this Regulation AB, the purpose, method of calculation and use of such draws, and the amount of coverage remaining under any such enhancement.
(h) Number and amount of pool assets at the beginning and ending of each period, and updated pool composition information, such as weighted average coupon, weighted average life, weighted average remaining term, pool factors, prepayment amounts, current payment/prepayment speeds and other prepayment or interest rate sensitivity information. For asset-backed securities backed by leases where a portion of the cash flow to repay the asset-backed securities is anticipated to come from the residual value of the physical property underlying the leases, this information also would include turn-in rates and residual value realization rates.
(i) Delinquency and loss information for the period (See,
(j) Information on the amount, terms and purpose of any advances made or reimbursed during the period, including the use of funds advanced and the source of funds for reimbursements.
(k) Any material modifications, extensions or waivers to pool asset terms, fees, penalties or payments.
(l) Breaches of material pool asset representations or warranties or transaction covenants.
(m) Information on ratio, coverage or other tests used for determining any early amortization, liquidation or other performance trigger and whether the trigger was met.
(n) Information regarding any new issuance of asset-backed securities backed by the same asset pool, any pool asset additions, removals, substitutions and repurchases (and purchase rates, if applicable), such as through a prefunding or revolving period, and cash flows available for future purchases, such as the balances of any prefunding or revolving accounts, including:
(1) Any material changes in the solicitation, credit-granting, underwriting, origination, acquisition or pool selection procedures, as applicable, used to originate, acquire or select the new pool assets.
(2) If the addition, removal or substitution of pool assets has materially changed the composition of the asset pool taken as a whole, provide the information required by Items 1104, 1107, 1109, 1110 and 1111 of this Regulation AB applied taking the revised pool composition into account. However, no disclosure need be provided by this paragraph if substantially the same information was provided in an effective registration statement under the Securities Act or a prospectus timely filed pursuant to § 230.424 of this chapter under the same Central Index Key (CIK) code regarding a subsequent issuance of asset-backed securities backed by a pool of assets that includes the pool assets that are the subject of this paragraph.
(a)
(1) A statement of the responsible party's responsibility for assessing compliance with the servicing criteria;
(2) A statement that the responsible party used the criteria in paragraph (d) of this section to assess compliance with the servicing criteria;
(3) The responsible party's assessment of compliance with the servicing criteria. This discussion must include disclosure of any material instance of noncompliance identified by the responsible party; and
(4) A statement that a registered public accounting firm has issued an attestation report on the responsible party's assessment of compliance with the servicing criteria in accordance with paragraph (d) of Rule 13a-18 or Rule
(b)
(c)
(d)
(i) Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.
(ii) If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party's performance and compliance with such servicing activities.
(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the pool assets are maintained.
(iv) A fidelity bond and errors and omissions policy is in effect on the servicer throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.
(2)
(i) Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days of receipt.
(ii) Disbursements made via wire transfer on behalf of an obligor or investor are made only by authorized personnel.
(iii) Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.
(iv) The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (
(v) Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured” with respect to a foreign financial institution would mean that the laws or regulations of the foreign financial institution's home jurisdiction require the institution to insure its deposits.
(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations:
(A) Are mathematically accurate;
(B) Are prepared within 30 calendar days after the bank statement cutoff date;
(C) Are reviewed and approved by someone other than the person who prepared the reconciliation; and
(D) Contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification.
(3)
(i) Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports are:
(A) Prepared in accordance with timeframes and other terms set forth in the transaction agreements;
(B) Provide information calculated in accordance with the terms specified in the transaction agreements;
(C) Filed with the Commission as required by its rules and regulations; and
(D) Agree with investors' and/or the trustee's records as to the total unpaid principal balance and number of pool assets serviced by the servicer.
(ii) Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.
(iii) Disbursements made to an investor are posted within two business days to the investor's records maintained by the servicer.
(iv) Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.
(4)
(i) Collateral or security on pool assets is maintained as required by the transaction agreements or related pool asset documents.
(ii) Pool assets and related documents are safeguarded as required by the transaction agreements.
(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.
(iv) Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the applicable obligor's records no more than two business days after receipt and allocated to principal, interest or other items (
(v) The servicer's records regarding the pool assets agree with the obligor's records with respect to the unpaid principal balance.
(vi) Changes with respect to the terms or status of an obligor's pool asset (
(vii) Loss mitigation or recovery actions (
(viii) Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis and describe the entity's activities in monitoring delinquent pool assets including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (
(ix) Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents.
(x) Regarding any funds held in trust for an obligor (such as escrow accounts):
(A) Such funds are analyzed, in accordance with the obligor's pool asset documents, on at least an annual basis;
(B) Interest on such funds is paid, or credited, to obligors in accordance with applicable pool asset documents and state laws; and
(C) Such funds are returned to the obligor within 30 calendar days of full repayment of the related pool asset.
(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates.
(xii) Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer's funds and not charged to the obligor, unless the late payment was due to the obligor's error or omission.
(xiii) Disbursements made on behalf of an obligor are posted within two business days to the obligor's records maintained by the servicer.
(xiv) Delinquencies, charge-offs and uncollectable accounts are recognized and recorded in accordance with the transaction agreements.
(xv) Any external enhancement or other support, identified in Item 1113(a)(1) through (3) of this Regulation AB, is maintained as set forth in the transaction agreements.
1. If certain servicing criteria are not applicable in the context of the asset class backing the asset-backed securities, the inapplicability of the criteria should be disclosed in the responsible party's and the registered public accounting firm's reports.
2. If the asset pool backing the asset-backed securities includes a pool asset representing an interest in or the right to the payments or cash flows of another asset pool and both the issuing entity for the asset-backed securities and the entity issuing the asset to be included in the issuing entity's asset pool were established under the direction of the same sponsor or depositor, see also Item 1100(d)(2) of this Regulation AB.
Provide as a separate exhibit to the filing a statement of compliance from the servicer, signed by an authorized officer of such servicer, to the effect that:
(a) A review of the servicer's activities during the reporting period and of its performance under the applicable servicing agreement has been made under such officer's supervision.
(b) To the best of such officer's knowledge, based on such review, the servicer has fulfilled all of its obligations under the agreement in all material respects throughout the reporting period or, if there has been a default in the fulfillment of any such obligation in any material respect, specifying each such default known to such officer and the nature and status thereof.
1. If multiple servicers are involved in servicing the pool assets, a separate servicer compliance statement is required from each servicer that meets the criteria in Item 1107(a) of this Regulation AB.
2. The filing must include a statement of compliance even if the issuing entity has not existed for a full twelve months.
22. The authority citation for Part 230 continues to read in part as follows:
15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78
23. Add § 230.139a to read as follows:
The publication or distribution by a broker or dealer of information, an opinion or a recommendation with respect to asset-backed securities meeting the criteria of General Instruction I.B.5 of Form S-3 (§ 239.13 of this chapter)) (“S-3 ABS”) shall not be deemed to constitute an offer for sale or offer to sell S-3 ABS registered or proposed to be registered for purposes of sections 2(a)(10) and 5(c) of the Act (15 U.S.C. 77b(a)(10) and 77e(c)) (the “registered securities”), even though such broker or dealer is or will be a participant in the distribution of the registered securities, if the following conditions are met:
(a) The broker or dealer must have previously published or distributed with reasonable regularity information, opinions or recommendations relating to S-3 ABS backed directly (or, with respect to securitizations of other securities, indirectly) by substantially similar collateral as that directly or indirectly backing S-3 ABS that is the subject of the information, opinion or recommendation that is proposed to be published or distributed.
(b) If the registered securities are proposed to be offered, offered or part of an unsold allotment or subscription, the information, opinion or recommendation must not:
(1) Identify the registered securities;
(2) Give greater prominence to specific structural or collateral-related attributes of the registered securities than it gives to the same attributes of other asset-backed securities that it mentions; and
(3) Contain any
(c) If the material published by the broker or dealer identifies a specific asset-backed security of a specific issuer and specifically recommends that such asset-backed security be purchased, sold or held by persons receiving such material, then a recommendation as favorable or more favorable as to such asset-backed security must have been published by the broker or dealer in the last publication of such broker or dealer addressing such asset-backed security prior to the commencement of its participation in the distribution of the registered securities.
(d) Sufficient information is available from one or more public sources to provide a reasonable basis for the view expressed by the broker or dealer with respect to the asset-backed securities that are the subject of the information, opinion or recommendation.
(e) If the material published by the broker or dealer identifies asset-backed securities backed directly or indirectly by substantially similar collateral as that directly or indirectly backing the registered securities and specifically recommends that such asset-backed securities be preferred over other asset-backed securities backed by different types of collateral, then the material must explain in reasonable detail the reasons for such preference.
24. Add § 230.167 to read as follows:
(a) In an offering of asset-backed securities meeting the requirements of General Instruction I.B.5 of Form S-3 (§ 239.13 of this chapter) and registered under the Act on Form S-3 pursuant to § 230.415,
(b)
(1) The communications must be filed to the extent required pursuant to § 230.426.
(2) Every communication used pursuant to this section must include prominently on the cover page or otherwise at the beginning of such communication:
(i) The issuing entity's name and the depositor's name, if applicable;
(ii) The Commission file number for the related registration statement;
(iii) A statement that such communication is
(iv) A legend that urges investors to read the relevant documents filed or to be filed with the Commission because they contain important information. The legend also must explain to investors that they can get the documents for free at the Commission's Web site and describe which documents are available free from the issuer or an underwriter.
(c) This section is applicable not only to the offeror of the asset-backed securities, but also to any other participant that may need to rely on and complies with this section in communicating about the transaction. A participant for purposes of this section is any person or entity that is a party to the asset-backed securities transaction and any persons authorized to act on their behalf.
(d) Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
25. Add §§ 230.190 and 230.191 to read as follows:
(a) In an offering of asset-backed securities where the asset pool includes securities of another issuer (“underlying securities”), unless the underlying securities are themselves exempt from registration under section 3 of the Act (15 U.S.C. 77c), the offering of the relevant underlying securities itself must be registered as a primary offering of such securities in accordance with paragraph (b) of this section unless all of the following are true. Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
(1) Neither the issuer of the underlying securities nor any of its affiliates has a direct or indirect agreement, arrangement, relationship or understanding, written or otherwise, relating to the underlying securities and the asset-backed securities transaction;
(2) Neither the issuer of the underlying securities nor any of its affiliates is an affiliate of the sponsor, depositor, issuing entity or underwriter of the asset-backed securities transaction; and
(3) The depositor would be free to publicly resell the underlying securities without registration under the Act. For example:
(i) If the underlying securities are restricted securities, as defined in § 230.144(a)(3), the underlying securities must meet the conditions set forth in § 230.144(k) for the sale of restricted securities; and
(ii) The offering of the asset-backed security does not constitute part of a distribution of the underlying securities. An offering of asset-backed securities with an asset pool containing underlying securities that at the time of the purchase for the asset pool are part of a subscription or unsold allotment would be a distribution of the underlying securities. For purposes of this section, in an offering of asset-backed securities involving a sponsor, depositor or underwriter that was an underwriter or an affiliate of an underwriter in a registered offering of the underlying securities, the distribution of the asset-backed securities will not constitute part of a distribution of the underlying securities if the underlying securities were purchased at arm's length in the secondary market at least three months after the last sale of any unsold allotment or subscription by the affiliated underwriter that participated in the registered offering of the underlying securities.
(b) If all of the conditions in paragraph (a) of this section are not met, the offering of the relevant underlying securities itself must be registered as a primary offering of such securities in accordance with the following:
(1) If the offering of asset-backed securities is registered on Form S-3 (§ 239.13 of this chapter), the offering of the underlying securities itself must be eligible to be registered under Form S-3 or F-3 (§ 239.33 of this chapter) as a primary offering of such securities;
(2) The plan of distribution in the registration statement for the offering of the underlying securities contemplates this type of distribution at the time of the commencement of the offering of the asset-backed securities;
(3) The prospectus for the asset-backed securities offering describes the plan of distribution for both the underlying securities and the asset-backed securities;
(4) The prospectus relating to the offering of the underlying securities is delivered simultaneously with the delivery of the prospectus relating to the offering of the asset-backed securities, and the prospectus for the asset-backed securities includes disclosure that the prospectus for the offering of the underlying securities will be delivered along with, or is combined with, the prospectus for the offering of the asset-backed securities;
(5) The prospectus for the asset-backed securities offering identifies the issuing entity, depositor, sponsor and each underwriter for the offering of the asset-backed securities as an underwriter for the offering of the underlying securities;
(6) Neither prospectus disclaims or limits responsibility by the issuing entity, sponsor, depositor, trustee or any underwriter for information regarding the underlying securities; and
(7) If the offering of the asset-backed securities and the underlying securities is not made on a firm commitment basis, the issuing entity or the underwriters for the offering of the asset-backed securities must distribute a preliminary prospectus for both the underlying securities offering and the asset-backed securities offering that identifies the issuer of the underlying securities and the expected amount of the issuer's underlying securities that is to be included in the asset pool to any person who is expected to receive a confirmation of sale of the asset-backed securities at least 48 hours prior to sending such confirmation.
(c) Notwithstanding paragraphs (a) and (b) of this section, if the asset pool for the asset-backed securities includes a pool asset representing an interest in or the right to the payments or cash flows of another asset pool, then that pool asset is not considered an “underlying security” for purposes of this section (although its distribution in connection with the asset-backed securities transaction may need to be separately registered) if the following conditions are met:
(1) Both the issuing entity for the asset-backed securities and the entity issuing the pool asset were established under the direction of the same sponsor or depositor;
(2) The pool asset is created solely to satisfy legal requirements or otherwise facilitate the structuring of the asset-backed securities transaction;
(3) The pool asset is not part of a scheme to avoid registration or the requirements of this section; and
(4) The pool asset is held by the issuing entity and is a part of the asset pool for the asset-backed securities.
The following applies with respect to asset-backed securities under the Act. Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
(a) The depositor for the asset-backed securities acting solely in its capacity as depositor to the issuing entity is the “issuer” for purposes of the asset-backed securities of that issuing entity.
(b) The person acting in the capacity as the depositor specified in paragraph (a) of this section is a different “issuer” from that same person acting as a depositor for another issuing entity or for purposes of that person's own securities.
26. Amend § 230.411 by:
a. Removing the authority citation following the section; and
b. Revising the first sentence of paragraph (a).
The revision reads as follows:
(a)
27. Add § 230.426 to read as follows:
(a) All written communications made in reliance on § 230.167 are prospectuses that must be filed with the Commission in accordance with paragraphs (b) and (c) of this section on Form 8-K (§ 249.308 of this chapter) and incorporated by reference to the related registration statement for the offering of asset-backed securities. Each prospectus filed under this section must identify the Commission file number of the related registration statement on the cover page of the related Form 8-K in addition to any other information required by that form. The information contained in any such prospectus shall be deemed to be a part of the registration statement as of the earlier of the time of filing of such information or the time of the filing of the final prospectus that meets the requirements of section 10(a) of the Act (15 U.S.C. 77j(a)) relating to such offering pursuant to § 230.424(b).
(b) Except as specified in paragraph (c) of this section,
(1)
(i) For each prospective investor that has indicated to the underwriter that it will purchase all or a portion of the class of asset-backed securities to which such materials relate, all materials relating to such class that are provided to such prospective investor; and
(ii) For any other prospective investor, all materials that are provided to such prospective investor after the final terms have been established for all classes of the offering.
(2)
(i) The due date for filing the final prospectus relating to such offering that meets the requirements of section 10(a) of the Act (15 U.S.C. 77j(a)) pursuant to § 230.424(b); or
(ii) Two business days of first use.
(c) Notwithstanding paragraphs (a) and (b) of this section, the following need not be filed under this section:
(1)
(2) Any
(3) Any
(4) Any written communication that is limited to the information specified in § 230.134, 230.135 or 230.135c.
(5) Any research report used in reliance on § 230.137, 230.138, 230.139 or 230.139a.
(6) Any confirmation described in § 240.10b-10 of this chapter.
(7) Any prospectus filed under § 230.424.
(d) Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
The issuer may aggregate data presented in
28. Amend § 230.434 by removing the phrase “General Instruction I.B.5. of Form S-3 (§ 239.13 of this chapter)” in paragraph (f) and adding, in its place, the phrase “§ 229.1101 of this chapter”.
29. The authority citation for Part 232 continues to read in part as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 78c(b), 78
30. Amend § 232.311 by removing paragraph (j).
31. The authority citation for Part 239 continues to read in part as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 78
32. Amend Form S-1 (referenced in § 239.11) by adding General Instruction VI. to read as follows:
The text of Form S-1 does not, and this amendment will not, appear in the Code of Federal Regulations.
The following applies if a registration statement on this Form S-1 is being used to register an offering of asset-backed securities. Terms used in this General Instruction VI. have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
A.
Such registrants may omit the information called for by the following otherwise required items:
1. Paragraphs (a), (b), (c), (e), (f), (g), (h), (i) and (j) of Item 11, Information with Respect to the Registrant.
2. If the issuing entity does not have any executive officers or directors, paragraphs (k), (
3. Paragraph (m) of Item 11, Information with Respect to the Registrant, except for the information required by Item 403(a) of Regulation S-K (17 CFR 229.403(a)) and if the issuing entity does not have any executive officers or directors.
B.
C.
33. Amend § 239.12 by adding paragraph (i) to read as follows:
(i)
34. Amend Form S-2 (referenced in § 239.12) by adding paragraph I. to General Instruction I to read as follows:
The text of Form S-2 does not, and this amendment will not, appear in the Code of Federal Regulations.
I.
35. Amend § 239.13 by:
a. Revising the phrase “2.06 or 4.02(a) of Form 8-K” in paragraph (a)(3)(ii) to read “2.06, 4.02(a) or 6.03 of Form 8-K”; and
b. Revising paragraphs (a)(4) and (b)(5).
The revisions read as follows.
(a) * * *
(4) The provisions of paragraphs (a)(2) and (a)(3)(i) of this section do not apply to any registered offerings of asset-backed securities described in paragraph (b)(5) of this section. However, for such offerings, to the extent the depositor or any issuing entity previously established, directly or indirectly, by the sponsor or the depositor (as those terms are defined in § 229.1101 of this chapter) are or were subject to the requirements of section 12 or 15(d) of the Exchange Act (15 U.S.C. 78
(b) * * *
(5)
36. Amend Form S-3 (referenced in § 239.13) by:
a. Revising the phrase “2.06 or 4.02(a) of Form 8-K” in General Instruction I.A.3.(b) to read “2.06, 4.02(a) or 6.03 of Form 8-K”;
b. Revising General Instructions I.A.4. and I.B.5.; and
c. Adding General Instruction V.
The revisions and addition reads as follows.
The text of Form S-3 does not, and this amendment will not, appear in the Code of Federal Regulations.
A.
4. The provisions in paragraphs A.2. and A.3.(a) above do not apply to any registered offerings of asset-backed securities described in I.B.5 below. However, for such offerings, to the extent the depositor or any issuing entity previously established, directly or indirectly, by the sponsor or the depositor (as those terms are defined in § 229.1101 of this chapter) are or were subject to the requirements of section 12 or 15(d) of the Exchange Act (15 U.S.C. 78
B.
5.
(a) The securities are “investment grade securities,” as defined in I.B.2 above (Primary Offerings of Non-convertible Investment Grade Securities);
(b) Delinquent assets do not constitute 20% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities;
(c) With respect to securities that are backed by leases other than automobile leases, the portion of the cash flow to repay the securities anticipated to come from the residual value of the physical property underlying the leases does not constitute 20% or more, as measured by dollar volume, of the original asset pool at the time of issuance of the asset-backed securities;
(d) The offering related to the securities does not contemplate a prefunding period that involves in excess of 25% of the proceeds of the offering and the duration of the prefunding period does not extend for more than one year from the initial date of issuance of securities backed by the asset pool.
(e) With respect to securities that are backed by fixed receivables or other financial assets that do not revolve, the offering related to the securities does not contemplate a revolving period where the amount of additional receivables or financial assets to be acquired in the revolving period exceeds 25% of the proceeds of the offering and the duration of the revolving period does not extend for more than one year from the initial date of issuance of securities backed by the asset pool.
The following applies if a registration statement on this Form S-3 is being used to register an offering of asset-backed securities. Terms used in this General Instruction V. have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
A.
B.
37. Amend § 239.18 by adding a sentence to the end of the section to read as follows:
* * * In addition, this form shall not be used for an offering of asset-backed securities, as defined in § 229.1101 of this chapter.
38. Amend Form S-11 (referenced in § 239.18) by adding a sentence to the end of General Instruction A to read as follows:
The text of Form S-11 does not, and this amendment will not, appear in the Code of Federal Regulations.
* * * In addition, this form shall not be used for an offering of asset-backed securities, as defined in 17 CFR 229.1101.
39. Amend § 239.31 by adding a sentence to the end of paragraph (a) to read as follows:
(a) * * * In addition, this form shall not be used for an offering of asset-backed securities, as defined in § 229.1101 of this chapter.
40. Amend Form F-1 (referenced in § 239.31) by adding a sentence to the end of General Instruction I.A to read as follows:
The text of Form F-1 does not, and this amendment will not, appear in the Code of Federal Regulations.
A. * * * In addition, this form shall not be used for an offering of asset-backed securities, as defined in 17 CFR 229.1101.
41. Amend § 239.32 by adding paragraph (i) to read as follows:
(i)
42. Amend Form F-2 (referenced in § 239.32) by adding paragraph I. to General Instruction I to read as follows:
The text of Form F-2 does not, and this amendment will not, appear in the Code of Federal Regulations.
I.
43. Add a sentence to the end of the introductory text of § 239.33 to read as follows:
* * * In addition, this Form shall not be used for an offering of asset-backed securities, as defined in § 229.1101 of this chapter.
44. Amend Form F-3 (referenced in § 239.33) by adding a sentence to the end of the introductory text of General Instruction I to read as follows:
The text of Form F-3 does not, and this amendment will not, appear in the Code of Federal Regulations.
* * * In addition, this Form shall not be used for an offering of asset-backed
45. The authority citation for Part 240 continues to read in part as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
46. Add § 240.3a12-12 to read as follows:
Asset-backed securities, as defined in § 229.1101 of this chapter, are exempt from section 16 of the Act (15 U.S.C. 78p).
47. Add § 240.3b-19 to read as follows:
The following applies with respect to asset-backed securities under the Act. Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
(a) The depositor for the asset-backed securities acting solely in its capacity as depositor to the issuing entity is the “issuer” for purposes of the asset-backed securities of that issuing entity.
(b) The person acting in the capacity as the depositor specified in paragraph (a) of this section is a different “issuer” from that same person acting as a depositor for another issuing entity or for purposes of that person's own securities.
48. Amend § 240.10A-3 by removing the phrase “(as defined in § 240.13a-14(g) and § 240.15d-14(g))” from paragraph (c)(6)(i) and adding, in its place, the phrase “(as defined in § 229.1101 of this chapter)”.
49. Amend § 240.12b-2 by revising paragraph (3) of the definition of
(3) Is not an investment company and is not an asset-backed issuer (as defined in § 229.1101 of this chapter); and
50. Amend § 240.12b-15 by adding a sentence after the sixth sentence to read as follows:
* * * An amendment to any report required to include the certifications as specified in § 240.13a-14(d) or § 240.15d-14(d) must include a new certification by an individual specified in § 240.13a-14(e) or § 240.15d-14(e), as applicable. * * *
51. Amend § 240.13a-10 by adding paragraph (k) before the
(k)(1) Paragraphs (a) through (g) of this section shall not apply to asset-backed issuers.
(2) Every asset-backed issuer that changes its fiscal closing date shall file a report covering the resulting transition period between the closing date of its most recent fiscal year and the opening date of its new fiscal year. In no event shall a transition report cover a period longer than 12 months.
(3) The report for the transition period shall be filed on Form 10-K (§ 249.310 of this chapter) responding to all items to which such asset-backed issuer is required to respond pursuant to General Instruction J. of Form 10-K. Such report shall be filed within 90 days after the latter of either the close of the transition period or the date on which the issuer made the determination to change the fiscal closing date.
(4) Notwithstanding the foregoing in paragraphs (k)(2) and (k)(3) of this section, if the transition period covers a period of one month or less, an asset-backed issuer need not file a separate transition report if the first annual report for the newly adopted fiscal year covers the transition period as well as the fiscal year.
(5) Any obligation of the asset-backed issuer to file distribution reports pursuant to § 240.13a-17 will continue to apply regardless of a change in the asset-backed issuer's fiscal closing date.
52. Amend § 240.13a-11 by revising the phrase “2.06 or 4.02(a) of Form 8-K” in paragraph (c) to read “2.06, 4.02(a) or 6.03 of Form 8-K”.
53. Amend § 240.13a-13 by:
a. Removing the authority citation following § 240.13a-13;
b. Removing the period at the end of paragraph (b)(2) and adding, in its place, “; and”; and
c. Adding paragraph (b)(3).
The addition reads as follows.
(b) * * *
(3) Asset-backed issuers required to file reports pursuant to § 240.13a-17.
54. Amend § 240.13a-14 by:
a. Removing the phrase “(as defined in paragraph (g) of this section)” in the first sentence of paragraph (a) and adding, in its place, the phrase “(as defined in § 229.1101 of this chapter)”;
b. Revising the reference to “paragraph (a) or (b)” in paragraph (c) to read “paragraph (a), (b) or (d)”;
c. Revising paragraphs (d) and (e); and
d. Removing paragraphs (f) and (g).
The revisions read as follows:
(d) Each annual report and transition report filed on Form 10-K (§ 249.310 of this chapter) by an asset-backed issuer (as defined in § 229.1101 of this chapter) under section 13(a) of the Act (15 U.S.C. 78m(a)) must include a certification in the form specified in the applicable exhibit filing requirements of such report and such certification must be filed as an exhibit to such report.
(e) With respect to asset-backed issuers, the certification required by paragraph (d) of this section must be signed by either:
(1) The senior officer in charge of securitization of the depositor if the depositor is signing the report; or
(2) The senior officer in charge of the servicing function of the servicer if the servicer is signing the report on behalf of the issuing entity. If multiple servicers are involved in servicing the pool assets, the senior officer in charge of the servicing function of the master servicer (or entity performing the equivalent functions) must sign if a representative of the servicer is to sign the report on behalf of the issuing entity.
55. Amend § 240.13a-15 by removing the phrase “(as defined in § 240.13a-14(g))” and adding, in its place, the phrase “(as defined in § 229.1101 of this chapter)” in paragraph (a).
56. Amend § 240.13a-16 by:
a. Removing the word “or” at the end of paragraph (a)(2);
b. Removing the period at the end of paragraph (a)(3) and adding, in its place, “; or”; and
c. Adding paragraph (a)(4).
The addition reads as follows.
(a) * * *
(4) Asset-backed issuers, as defined in § 229.1101 of this chapter.
57. Add §§ 240.13a-17 and 240.13a-18 to read as follows:
Every asset-backed issuer subject to § 240.13a-1 shall make reports on Form 10-D (§ 249.312 of this chapter). Such reports shall be filed within the period specified in Form 10-D.
(a) This section applies to every class of asset-backed securities subject to the reporting requirements of section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)). Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
(b)
(1) The depositor if the depositor signs the report on Form 10-K with respect to that fiscal year; or
(2) The servicer if the servicer signs the report on Form 10-K on behalf of the issuing entity with respect to that fiscal year. If multiple servicers are involved in servicing the pool assets, the master servicer (or entity performing the equivalent functions) is the “responsible party” if a representative of the servicer is to sign the report on behalf of the issuing entity.
(c)
(2) Because the responsible party must rely in certain circumstances on information provided by unaffiliated parties outside of the responsible party's control, the responsible party may reasonably rely on information provided to the responsible party by unaffiliated parties in making its assessment.
(d)
58. Amend § 240.15c2-8 by adding a sentence to the end of paragraph (b) to read as follows.
(b) * * * This paragraph (b) does not apply with respect to asset-backed securities (as defined in § 229.1101 of this chapter) that meet the requirements of General Instruction I.B.5 of Form S-3 (§ 239.13 of this chapter).
59. Amend § 240.15d-10 by adding paragraph (k) before the
(k)(1) Paragraphs (a) through (g) of this section shall not apply to asset-backed issuers.
(2) Every asset-backed issuer that changes its fiscal closing date shall file a report covering the resulting transition period between the closing date of its most recent fiscal year and the opening date of its new fiscal year. In no event shall a transition report cover a period longer than 12 months.
(3) The report for the transition period shall be filed on Form 10-K (§ 249.310 of this chapter) responding to all items to which such asset-backed issuer is required to respond pursuant to General Instruction J. of Form 10-K. Such report shall be filed within 90 days after the later of either the close of the transition period or the date on which the issuer made the determination to change the fiscal closing date.
(4) Notwithstanding the foregoing in paragraphs (k)(2) and (k)(3) of this section, if the transition period covers a period of one month or less, an asset-backed issuer need not file a separate transition report if the first annual report for the newly adopted fiscal year covers the transition period as well as the fiscal year.
(5) Any obligation of the asset-backed issuer to file distribution reports pursuant to § 240.15d-17 will continue to apply regardless of a change in the asset-backed issuer's fiscal closing date.
60. Amend § 240.15d-11 by revising the phrase “2.06 or 4.02(a) of Form 8-K” in paragraph (c) to read “2.06, 4.02(a) or 6.03 of Form 8-K”.
61. Amend § 240.15d-13 by:
a. Removing the authority citation following § 240.15d-13;
b. Removing the period at the end of paragraph (b)(2) and adding, in its place, “; and”; and
c. Adding paragraph (b)(3).
The addition reads as follows.
(b) * * *
(3) Asset-backed issuers required to file reports pursuant to § 240.15d-17.
62. Amend § 240.15d-14 by:
a. Removing the phrase “(as defined in paragraph (g) of this section)” in the first sentence of paragraph (a) and adding, in its place, the phrase “(as defined in § 229.1101 of this chapter)”;
b. Revising the reference to “paragraph (a) or (b)” in paragraph (c) to read “paragraph (a), (b) or (d)”;
c. Revising paragraphs (d) and (e); and
d. Removing paragraphs (f) and (g).
The revisions read as follows:
(d) Each annual report and transition report filed on Form 10-K (§ 249.310 of this chapter) by an asset-backed issuer (as defined in § 229.1101 of this chapter) under section 15(d) of the Act (15 U.S.C. 78o(d)) must include a certification in the form specified in the applicable exhibit filing requirements of such report and such certification must be filed as an exhibit to such report.
(e) With respect to asset-backed issuers, the certification required by paragraph (d) of this section must be signed by either:
(1) The senior officer in charge of securitization of the depositor if the depositor is signing the report; or
(2) The senior officer in charge of the servicing function of the servicer if the servicer is signing the report on behalf of the issuing entity. If multiple servicers are involved in servicing the pool assets, the senior officer in charge of the servicing function of the master servicer (or entity performing the equivalent functions) must sign if a representative of the servicer is to sign the report on behalf of the issuing entity.
63. Amend § 240.15d-15 by removing the phrase “(as defined in § 240.15d-14(g)” and adding, in its place, the phrase “(as defined in § 229.1101” in paragraph (a).
64. Amend § 240.15d-16 by:
a. Removing the period at the end of paragraph (a)(2) and adding, in its place, “; or”; and
c. Adding paragraph (a)(3).
The addition reads as follows.
(a) * * *
(3) Asset-backed issuers, as defined in § 229.1101 of this chapter.
65. Add § 240.15d-17 to read as follows:
Every asset-backed issuer subject to § 240.15d-1 shall make reports on Form 10-D (§ 249.312 of this chapter). Such reports shall be filed within the period specified in Form 10-D.
66. Add § 240.15d-18 before the undesignated center heading to read as follows:
(a) This section applies to every class of asset-backed securities subject to the reporting requirements of section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)). Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
(b)
(1) The depositor if the depositor signs the report on Form 10-K with respect to that fiscal year; or
(2) The servicer if the servicer signs the report on Form 10-K on behalf of the issuing entity with respect to that fiscal year. If multiple servicers are involved in servicing the pool assets, the master servicer (or entity performing the equivalent functions) is the “responsible party” if a representative of the servicer is to sign the report on behalf of the issuing entity.
(c)
(2) Because the responsible party must rely in certain circumstances on information provided by unaffiliated parties outside of the responsible party's control, the responsible party may reasonably rely on information provided to the responsible party by unaffiliated parties in making its assessment.
(d)
67. Add §§ 240.15d-22 and 240.15d-23 to read as follows:
(a) With respect to an offering of asset-backed securities registered pursuant to § 230.415(a)(1)(x) of this chapter, annual and other reports need not be filed pursuant to section 15(d) of the Act (15 U.S.C. 78o(d)) regarding any class of securities to which such registration statement relates until the first bona fide sale in a takedown of securities under the registration statement.
(b) Regarding any class of asset-backed securities in a takedown off of a registration statement pursuant to § 230.415(a)(1)(x) of this chapter, no annual and other reports need be filed pursuant to section 15(d) of the Act regarding such class of securities as to any fiscal year, other than the fiscal year within which the takedown occurred, if at the beginning of such fiscal year the securities of each class in the takedown are held of record by less than three hundred persons.
(c) Paragraphs (a) or (b) of this section do not affect any other reporting obligation applicable with respect to any classes of securities from additional takedowns under the same or different registration statements or any reporting obligation that may be applicable pursuant to section 12 of the Act (15 U.S.C. 78
(a) Regarding a class of asset-backed securities, if the asset pool for the asset-backed securities includes a pool asset representing an interest in or the right to the payments or cash flows of another asset pool, then no separate annual and other reports need be filed pursuant to section 15(d) of the Act (15 U.S.C. 78o(d)) because of the separate registration of the distribution of the pool asset under the Securities Act (15 U.S.C. 77a
(1) Both the issuing entity for the asset-backed securities and the entity that issued the pool asset were established under the direction of the same sponsor or depositor;
(2) The pool asset was created solely to satisfy legal requirements or otherwise facilitate the structuring of the asset-backed securities transaction;
(3) The pool asset is not part of a scheme to avoid the registration or reporting requirements of the Act;
(4) The pool asset is held by the issuing entity and is a part of the asset pool for the asset-backed securities; and
(5) The offering of the asset-backed securities and the offering of the pool asset were both registered under the Securities Act (15 U.S.C. 77a
(b) Paragraph (a) of this section does not affect any reporting obligation applicable with respect to the asset-backed securities or any other reporting obligation that may be applicable with respect to the pool asset or any other securities by the issuer of that pool asset pursuant to section 12 or 15(d) of the Act (15 U.S.C. 78
(c) This section does not affect any obligation to provide information
(d) Terms used in this section have the same meaning as in Item 1101 of Regulation AB (§ 229.1101 of this chapter).
68. The authority citation for part 242 is revised to read as follows:
15 U.S.C. 77g, 77q(a), 77s(a), 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k-1(c), 78l, 78m, 78n, 78o(b), 78o(c), 78o(g), 78q(a), 78q(b), 78q(h), 78w(a), 78dd-1, 78mm, 80a-23, 80a-29, and 80a-37.
69. Amend § 242.100 by revising the definition of
(b) * * *
70. The authority citation for part 245 continues to read in part as follows:
15 U.S.C. 78w(a), unless otherwise noted.
71. Amend § 245.101 by:
a. Removing the period at the end of paragraph (c)(2) and in its place adding a semicolon;
b. Removing “and” at the end of paragraph (c)(9);
c. Removing the period at the end of paragraph (c)(10) and in its place adding “; and”; and
d. Adding paragraph (c)(11).
The addition reads as follows:
(c) * * *
(11) Any acquisition or disposition of an asset-backed security, as defined in § 229.1101 of this chapter.
72. The authority citation for part 249 continues to read in part as follows:
15 U.S.C. 78a
73. Amend Form 8-K (referenced in § 249.308) by:
a. Adding General Instruction G.;
b. Adding Instruction 3 to Item 1.01;
c. Adding Instruction 3 to Item 1.02;
d. Revising the phrase “
e. Revising Instruction 4 to Item 2.02;
f. Adding Instruction 5 to Item 2.04;
g. Revising the phrase “Instruction” in Item 4.01 to read “Instructions”, redesignating the existing Instruction as Instruction 1, and adding Instruction 2;
h. Revising the phrase “Instruction to Item 5.03” in Item 5.03 to read “Instructions”, redesignating the existing Instruction as Instruction 1, and adding Instruction 2; and
i. Adding Section 6.
The revisions and addition read as follows:
The text of Form 8-K does not, and this amendment will not, appear in the Code of Federal Regulations.
The following applies to registrants that are asset-backed issuers. Terms used in this General Instruction G. have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
1.
The registrant need not file a report on this Form upon the occurrence of any one or more of the events specified in the following:
(a) Item 2.01, Completion of Acquisition or Disposition of Assets;
(b) Item 2.03, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant;
(c) Item 2.05, Costs Associated with Exit or Disposal Activities;
(d) Item 2.06, Material Impairments;
(e) Item 3.01, Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing;
(f) Item 3.02, Unregistered Sales of Equity Securities;
(g) Item 4.02, Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review;
(h) Item 5.01, Changes in Control of Registrant;
(i) Item 5.02, Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers;
(j) Item 5.04, Temporary Suspension of Trading Under Registrant's Employee Benefit Plans; and
(k) Item 5.05, Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics.
2.
Immediately after the name of the issuing entity on the cover page of the Form 8-K, as separate line items, identify the exact name of the depositor as specified in its charter and the exact name of the sponsor as specified in its charter.
3.
The Form 8-K must be signed by the depositor. In the alternative, the Form 8-K may be signed on behalf of the issuing entity by a duly authorized representative of the servicer. If multiple servicers are involved in servicing the pool assets, a duly authorized representative of the master servicer (or entity performing the equivalent functions) must sign if a representative of the servicer is to sign the report on behalf of the issuing entity.
3. With respect to asset-backed securities, as defined in Item 1101 of Regulation AB (17 CFR 229.1101), disclosure is required under this Item 1.01 regarding the entry into or an amendment to a definitive agreement that is material to the asset-backed securities transaction, even if the registrant is not a party to such agreement (
3. With respect to asset-backed securities, as defined in Item 1101 of Regulation AB (17 CFR 229.1101), disclosure is required under this Item 1.02 regarding the termination of a definitive agreement that is material to the asset-backed securities transaction (otherwise than by expiration of the agreement on its stated termination date or as a result of all parties completing their obligations under such agreement), even if the registrant is not a party to such agreement (
2. With respect to asset-backed securities, disclosure also is required under this Item 1.03 if the depositor (or servicer if the servicer signs the report on Form 10-K (17 CFR 249.310) of the issuing entity) becomes aware that a receiver, fiscal agent or similar officer has been appointed for the sponsor, depositor, servicer, trustee, significant obligor, enhancement provider contemplated by Item 1113(b) of Regulation AB (17 CFR 229.1113(b)) or other material party contemplated by Item 1101(d)(1) of Regulation AB (17 CFR 1101(d)(1)) in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under State or Federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of such party, or if such jurisdiction has been assumed by leaving the existing directors and officers in possession but subject to the supervision and orders of a court or governmental authority. Terms used in this Instruction 2 have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
4. This Item 2.02 does not apply in the case of a disclosure that is made in a quarterly report filed with the Commission on Form 10-Q (17 CFR 249.308a) (or Form 10-QSB (17 CFR 249.308b)), a distribution report filed with the Commission on Form 10-D (17 CFR 249.312) with respect to asset-backed securities, or an annual report filed with the Commission on Form 10-K (17 CFR 249.310) (or Form 10-KSB (17 CFR 249.310b)).
5. With respect to asset-backed securities, as defined in 17 CFR 229.1101, disclosure also is required under this Item 2.04 if an early amortization, performance trigger or other event, including an event of default, has occurred under the transaction agreements for the asset-backed securities that would materially alter the payment priority or distribution of cash flows regarding the asset-backed securities or the amortization schedule for the asset-backed securities. In providing the disclosure required by this Item, identify the changes to the payment priorities, flow of funds or asset-backed securities as a result. Disclosure is required under this Item whether or not the registrant is a party to the transaction agreement that results in the occurrence identified.
2. With respect to asset-backed securities, as defined in 17 CFR 229.1101, the applicable accountant to which this Item 4.01 should relate is the accountant engaged to provide the attestation report on assessment of compliance with servicing criteria for asset-backed securities, as defined in 17 CFR 210.1-02(a)(3).
2. With respect to asset-backed securities, as defined in 17 CFR 229.1101, disclosure is required under this Item 5.03 regarding any amendment to the governing documents of the issuing entity, regardless of whether the class of asset-backed securities is reporting under Section 13 or 15(d) of the Exchange Act.
The Items in this Section 6 apply only to asset-backed securities. Terms used in this Section 6 have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
Report under this Item any ABS informational and computational material filed in, or as an exhibit to, this report.
If a servicer contemplated by Item 1107(a) of Regulation AB (17 CFR 229.1107(a)) or the trustee has resigned or has been removed, replaced or substituted, or if a new servicer contemplated by Item 1107(a) of Regulation AB or trustee has been appointed, state the date the event occurred and the circumstances surrounding the change. In addition, provide the disclosure required by Item 1107(c) of Regulation AB (17 CFR 229.1107(c)), as applicable, regarding the servicer or trustee change. If a new servicer contemplated by Item 1107(a) of this Regulation AB or a new trustee has been appointed, provide the information required by Item 1107 of Regulation AB regarding such servicer or Item 1108 of Regulation AB (17 CFR 229.1108) regarding such trustee, as applicable.
(a)
(1) the date of the termination of the enhancement;
(2) the identity of the parties to the agreement relating to the enhancement;
(3) a brief description of the terms and conditions of the enhancement that are material to security holders;
(4) a brief description of the material circumstances surrounding the termination; and
(5) any material early termination penalties paid or to be paid out of the cash flows backing the asset-backed securities.
(b)
(c)
(1) the date on which the agreement or agreements relating to the enhancement was amended or modified;
(2) the identity of the parties to the agreement or agreements relating to the amendment or modification; and
(3) a brief description of the material terms and conditions of the amendment or modification.
2. The instructions to Items 1.01 and 1.02 of this Form apply to this Item.
3. Notwithstanding Items 1.01 and 1.02 of this Form, disclosure regarding changes to material enhancements are to be reported under this Item 6.03 in lieu of those Items.
If a required distribution to holders of the asset-backed securities is not made as of the required distribution date under the transaction documents, identify the failure and state the nature of the failure to make the timely distribution.
If additional securities that are either backed by the same asset pool or are otherwise issued by the issuing entity are sold, whether or not registered under the Securities Act, provide the applicable information set forth in paragraphs (a) through (e) of Item 701 of Regulation S-K (17 CFR 229.701(a) through (e)) and paragraph (e) of Item 1112 of Regulation AB (17 CFR 229.1112(e)). For purposes of determining the filing date for the Form 8-K under this Item 6.05, the registrant has no obligation to disclose information under this Item 6.05 until an enforceable agreement, whether or not subject to conditions, has been entered into under which the securities are to be sold. If there is no such agreement, the registrant must provide disclosure within four business days after the occurrence of the closing or settlement of the transaction or arrangement under which the securities are to be sold.
Regarding an offering of asset-backed securities registered on Form S-3 (17 CFR 239.13), if the actual asset pool at the time of issuance of the asset-backed securities differs by 5% or more from the description of the asset pool in the prospectus filed for the offering pursuant to Securities Act Rule 424 (17 CFR 230.424), disclose the information required by Items 1110 and 1111 of Regulation AB (17 CFR 229.1110 and 17 CFR 229.1111) regarding the characteristics of the actual asset pool. If applicable, also provide information required by Items 1107 and 1109 of Regulation AB (17 CFR 229.1107 and 17 CFR 229.1109) regarding any new servicers or originators that would be required to be disclosed under those items regarding the pool assets.
74. Amend § 249.220f by revising paragraph (a) and (b) to read as follows:
(a) Any foreign private issuer, other than an asset-backed issuer (as defined in § 229.1101 of this chapter), may use this form as a registration statement under section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”) or as an annual or transition report filed under section 13(a) or 15(d) of the Exchange Act.
(b) Except with respect to an asset-backed issuer, an annual report on this form shall be filed within six months after the end of the fiscal year covered by such report.
75. Amend Form 20-F (referenced in § 249.220f) by:
a. Adding the phrase “, other than an asset-backed issuer (as defined in 17 CFR 229.1101),” after the phrase “foreign private issuer” in paragraphs (a) and (b) of General Instruction A;
b. Revising the heading “Instructions to Item 15” to read “Instruction to Item 15”;
c. Removing Instruction 2 to Item 15;
d. Removing Instruction 4 to Item 16A;
e. Removing Instruction 4 to Item 16B;
f. Redesignating Instructions 5, 6 and 7 to Item 16B as Instructions 4, 5 and 6 to Item 16B;
g. Revising the heading “Instructions to Item 16C” to read “Instruction to Item 16C”; and
h. Removing Instruction 2 to Item 16C.
The text of Form 20-F does not, and this amendment will not, appear in the Code of Federal Regulations.
76. Amend Form 10-K (referenced in § 249.310) by:
a. Removing “and” at the end of General Instruction I.(1)(b);
b. Removing the period at the end of General Instruction I.(1)(c) and in its place adding “; and”;
c. Adding paragraph (d) to General Instruction I.(1);
b. Adding General Instruction J.;
c. Adding an Instruction to Item 9B; and
d. Removing the Instruction to Item 14.
The revisions read as follows.
The text of Form 10-K does not, and this amendment will not, appear in the Code of Federal Regulations.
(1) * * *
(d) The registrant is not an asset-backed issuer, as defined in Item 1101 of Regulation AB (17 CFR 229.1101).
The following applies to registrants that are asset-backed issuers. Terms used in this General Instruction J. have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
(1)
(a) Item 1, Business;
(b) Item 2, Properties;
(c) Item 3, Legal Proceedings;
(d) Item 6, Selected Financial Data;
(e) Item 7, Management's Discussion and Analysis of Financial Condition and Results of Operations;
(f) Item 7A, Quantitative and Qualitative Disclosures About Market Risk;
(g) Item 8, Financial Statements and Supplementary Data;
(h) Item 9A, Controls and Procedures;
(i) Item 10, Directors and Executive Officers of the Registrant, Item 11, Executive Compensation, and Item 13, Certain Relationships and Related Transactions, if the issuing entity does not have any officers or directors;
(j) Item 12, Security Ownership of Certain Beneficial Owners and Management, except for the information required by Item 403(a) of Regulation S-K (17 CFR 229.403(a)) and if the issuing entity does not have any executive officers or directors; and
(k) Item 14, Principal Accountant Fees and Services.
(2)
(a) Immediately after the name of the issuing entity on the cover page of the Form 10-K, as separate line items, the exact name of the depositor as specified in its charter and the exact name of the sponsor as specified in its charter.
(b) Item 1111(b) of Regulation AB;
(c) Item 1113(b)(2) of Regulation AB;
(d) Item 1115 of Regulation AB;
(e) Item 1117 of Regulation AB;
(f) Item 1120 of Regulation AB; and
(g) Item 1121 of Regulation AB.
(3)
The Form 10-K must be signed either:
(a) On behalf of the depositor by the senior officer in charge of securitization of the depositor; or
(b) On behalf of the issuing entity by the senior officer in charge of the servicing function of the servicer. If multiple servicers are involved in servicing the pool assets, the senior officer in charge of the servicing function of the master servicer (or entity performing the equivalent functions) must sign if a representative of the servicer is to sign the report on behalf of the issuing entity.
77. Amend Form 10-KSB (referenced in § 249.310b) by removing the Instruction to Item 14.
The text of Form 10-KSB does not, and this amendment will not, appear in the Code of Federal Regulations.
78. Amend Form 40-F (referenced in § 249.240f) by:
a. Revising the heading “Instructions to paragraphs (b), (c), (d) and (e) of General Instruction B.6.” to read “Instruction to paragraphs (b), (c), (d) and (e) of General Instruction B.(6).” and removing Instruction 2;
b. Removing Note 4 of the Notes to Paragraph (8) of General Instruction B;
c. Removing Note 4 of the Notes to Paragraph (9) of General Instruction B;
d. Redesignating Notes 5, 6 and 7 of the Notes to Paragraph (9) of General Instruction B as Notes 4, 5 and 6 of the Notes to Paragraph (9) of General Instruction B; and
e. Revising “Notes to Instruction B.(10)” to read “Note to Instruction B.(10)” and removing Note 2.
The text of Form 40-F does not, and this amendment will not, appear in the Code of Federal Regulations.
79. Add § 249.312 and Form 10-D to read as follows:
This form shall be used by asset-backed issuers to file periodic distribution reports pursuant to § 240.13a-17 or § 240.15d-17 of this chapter. A distribution report on this form pursuant to § 240.13a-17 or § 240.15d-17 of this chapter shall be filed within 15 days after each required distribution date on the asset-backed securities.
The text of Form 10-D does not, and this addition will not, appear in the Code of Federal Regulations.
(1) This Form shall be used for distribution reports by asset-backed issuers pursuant to Rule 13a-17 or Rule 15d-17 (17 CFR 240.13a-17 or 17 CFR 240.15d-17) of the Securities Exchange Act of 1934 (the “Act”). Such a report is required to be filed even though the sponsor or depositor also files reports pursuant to Section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)) with respect to classes of securities other than the asset-backed securities. See Rule 3b-19 (17 CFR 240.3b-19). Terms used in this Form have the same meaning as in Item 1101 of Regulation AB (17 CFR 229.1101).
(2) Reports on this Form shall be filed within 15 days after each required distribution date on the asset-backed securities, as specified in the governing documents for such securities.
(1) The General Rules and Regulations under the Act contain certain general requirements which are applicable to reports on any form under the Act. These general requirements should be carefully read and observed in the preparation and filing of reports on this Form, except that any provision in this Form or in these instructions is controlling.
(2) Particular attention is directed to Regulation 12B (17 CFR 240.12b-1
(1) This Form is not to be used as a blank form to be filled in, but only as a guide in preparing the report in accordance with Rules 12b-11 (17 CFR 240.12b-11), 12b-12 (17 CFR 240.12b-12) and 12b-13 (17 CFR 240.12b-13). The Commission does not furnish blank copies of this Form to be filled in for filing.
(2) These general instructions are not to be filed with the report. The instructions to the various captions of the Form are also to be omitted from the report as filed.
(3) Any item which is inapplicable or to which the answer is negative may be omitted and no reference need be made in the report. If substantially the same information has been previously reported by the asset-backed issuer, an additional report of the information on this Form need not be made. The term “previously reported” is defined in Rule 12b-2 (17 CFR 240.12b-2).
(4) Attention is directed to Rule 12b-20 (17 CFR 240.12b-20), which states:
(1) If the asset-backed issuer makes available to the holders of its securities or otherwise publishes, within the period prescribed for filing the report on this Form, a press release or other document or statement containing information meeting some or all of the requirements of this Form, the information called for may be incorporated by reference to such published document or statement, in answer or partial answer to any item or items of this Form, provided copies thereof are filed as an exhibit to the report on this Form.
(2) All information incorporated by reference must comply with the requirements of this Form and the following rules on incorporation by reference:
(a) Item 10(d) of Regulation S-K (17 CFR 229.10(d)) (general rules on incorporation by reference, which, among other things, prohibit, unless specifically required by this Form, incorporating by reference a document that includes incorporation by reference to another document);
(b) Item 1100(c) of Regulation AB (17 CFR 229.1100(c)) (additional requirements for incorporating information by reference in filings by asset-backed issuers);
(c) Rule 303 of Regulation S-T (17 CFR 232.303) (specific requirements for electronically filed documents); and
(d) Exchange Act Rules 12b-23 and 12b-32 (17 CFR 240.12b-23 and 240.12b-32) (additional rules on incorporation by reference for reports filed pursuant to Sections 13 and 15(d) of the Act).
(1) The report on this Form must be signed by the depositor. In the alternative, the report on this Form may be signed on behalf of the issuing entity by a duly authorized representative of the servicer. If multiple servicers are involved in servicing the pool assets, a duly authorized representative of the master servicer (or entity performing the equivalent functions) must sign if a representative of the servicer is to sign the report on behalf of the issuing entity.
(2) The name and title of each person who signs the report shall be typed or printed beneath his or her signature. Attention is directed to Rule 12b-11 (17 CFR 240.12b-11) concerning manual signatures.
(3) An asset-backed issuer must submit the report on this Form in electronic format via the Commission's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system in accordance with the EDGAR rules set forth in Regulation S-T (17 CFR Part 232), except as discussed below. An issuer submitting the report in electronic format must provide the signatures required for the report in accordance with Regulation S-T Rule 302 (17 CFR 232.302). For assistance with technical questions about EDGAR or to request an access code, call the EDGAR Filer Support Office at (202) 942-8900. For assistance with the EDGAR rules, call the Office of EDGAR and Information Analysis at (202) 942-2940.
(4) If the report is filed in paper pursuant to a hardship exemption from electronic filing provided by Regulation S-T Rule 201 or 202 (17 CFR 232.201 or 232.202), or as otherwise permitted by the Commission, eight copies of the report must be filed with the Commission. An issuer also must file at least one complete copy of the report with each national securities exchange on which any security of the issuer is listed and registered under Section 12(b) of the Exchange Act (15 U.S.C. 78
Provide the information required by Item 1119 of Regulation AB (17 CFR 229.1119), and attach as an exhibit to this report the distribution report delivered to the trustee or security holders, as the case may be, pursuant to the transaction agreements for the distribution period covered by this report. Any information required by Item 1119 of Regulation AB that is provided in the attached distribution report need not be repeated in this report. However, taken together, the attached distribution report and the information provided under this Item must contain all of the information required by Item 1119 of Regulation AB.
Provide the information required by Item 1115 of Regulation AB (17 CFR 229.1115). As to such proceedings which have been terminated during the period covered by the report, provide similar information, including the date of termination and a description of the disposition thereof.
Provide the information required by Item 2 of Part II of Form 10-Q (17 CFR 249.308a) with respect to the period covered by this report. With respect to the information required by Item 2(a) of Part II of Form 10-Q, provide this information regarding any sale of securities that are either backed by the same asset pool or are otherwise issued by the issuing entity, regardless of whether the transaction was registered under the Securities Act of 1933 (15 U.S.C. 77a
Provide the information required by Item 3 of Part II of Form 10-Q with respect to the period covered by this report.
Provide the information required by Item 4 of Part II of Form 10-Q with respect to the period covered by this report.
Provide the information required by Item 1111(b) of Regulation AB (17 CFR 229.1111(b)).
Provide the information required by Item 1113(b)(2) of Regulation AB (17 CFR 229.1113(b)(2)).
The registrant must disclose under this Item any information required to be disclosed in a report on Form 8-K during the period covered by the report on this Form, but not reported, whether or not otherwise required by this Form. If disclosure of such information is made under this Item, it need not be repeated in a report on Form 8-K which would otherwise be required to be filed with respect to such information or in a subsequent report on this Form.
(a) List the documents filed as a part of the report.
(b) File, as exhibits to this report, the exhibits required by this Form and Item 601 of Regulation S-K (17 CFR 229.601).
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
[or]
*See General Instruction E to Form 10-D.
** Print the name and title of each signing officer under his or her signature.
By the Commission.
(b) Except to the extent provided in regulations, orders, directives, or licenses that may be issued pursuant to the provisions of this order in a manner consistent with the SAA, and notwithstanding any license, permit, or authorization granted prior to the effective date of this order, (i) the Secretary of Commerce shall not permit the exportation or reexportation to Syria of any item on the Commerce Control List (15 C.F.R. part 774); and (ii) with the exception of food and medicine, the Secretary of Commerce shall not permit the exportation or reexportation to Syria of any product of the United States not included in section 1(b)(i) of this order.
(c) No other agency of the United States Government shall permit the exportation or reexportation to Syria of any product of the United States, except to the extent provided in regulations, orders, directives, or licenses that may be issued pursuant to this order in a manner consistent with the SAA, and notwithstanding any license, permit, or authorization granted prior to the effective date of this order.
(b) The prohibitions in paragraph (a) of this section include, but are not limited to, (i) the making of any contribution of funds, goods, or services by, to, or for the benefit of any person whose property or interests in property are blocked pursuant to this order; and (ii) the receipt of any contribution or provision of funds, goods, or services from any such person.
(b) Any conspiracy formed to violate the prohibitions set forth in this order is prohibited.
(a) the term “person” means an individual or entity;
(b) the term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;
(c) the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States;
(d) the term “Government of Syria” means the Government of the Syrian Arab Republic, its agencies, instrumentalities, and controlled entities; and
(e) the term “product of the United States” means: for the purposes of subsection 1(b), any item subject to the Export Administration Regulations (15 C.F.R. parts 730-774); and for the purposes of subsection 1(c), any item subject to the export licensing jurisdiction of any other United States Government agency.
(b) This order shall be transmitted to the Congress and published in the