[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Rules and Regulations]
[Pages 59780-59788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22384]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 335

RIN 3064-AC79


Securities of Nonmember Insured Banks

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Final rule.

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SUMMARY: The FDIC is adopting a final rule, unchanged from an interim 
final rule published on April 12, 2004 in the Federal Register (see 69 
FR 19085), which confirms amendments to its securities disclosure 
regulations applicable to banks with securities registered under 
section 12 of the Securities Exchange Act of 1934 (Exchange Act). These 
amendments implemented the requirements of the Exchange Act, as amended 
by the Sarbanes-Oxley Act of 2002, which mandates electronic filing of 
reports related to beneficial ownership of securities by the directors, 
executive officers, and principal shareholders of public companies. 
Prior to issuance of the interim final rule, the FDIC's securities 
disclosure regulations prohibited electronically transmitted filings or 
submissions of materials in electronic format to the FDIC. The amended 
rules provide an exception to this prohibition, requiring 
electronically transmitted filings of beneficial ownership reports by 
bank directors, officers, and principal shareholders to disclose 
securities transactions and ownership. Related technical or procedural 
provisions were also amended as appropriate.

DATES: These amendments are effective on October 6, 2004.

FOR FURTHER INFORMATION CONTACT: Dennis Chapman, Senior Staff 
Accountant, Division of Supervision and Consumer Protection, (202) 898-
8922; Mary Frank, Senior Financial Analyst, Division of Supervision and 
Consumer Protection, (202) 898-8903; or Carl J. Gold, Counsel, Legal 
Division, (202) 898-8702, Federal Deposit Insurance Corporation, 550 
17th Street, NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background and Authority for This Final Rule

a. Appropriate Federal Banking Agency Authority Under the Exchange Act

    Section 12(i) of the Securities Exchange Act of 1934 as amended (15 
U.S.C. 78l(i)) authorizes the Federal banking agencies (the FDIC, the 
Board of Governors of the Federal Reserve System (FRB), the Office of 
the Comptroller of the Currency (OCC), and the Office of Thrift 
Supervision (OTS)) to enforce sections 10A(m) (standards relating to 
audit committees), 12 (securities registration), 13 (periodic 
reporting), 14(a) (proxies and proxy solicitation), 14(c) (information 
statements), 14(d) (tender offers), 14(f) (arrangements for changes in 
directors), and 16 (beneficial ownership and reporting) of the Exchange 
Act, and sections 302 (corporate responsibility for financial reports), 
303 (improper influence on conduct of audits), 304 (forfeiture of 
certain bonuses and profits), 306 (insider trades during pension 
blackout periods), 401(b) (disclosure of pro forma financial 
information), 404 (management assessment of internal controls), 406 
(code of ethics for senior financial officers), and 407 (disclosure of 
audit committee financial expert) of the Sarbanes-Oxley Act of 2002, in 
regard to the depository institutions for which each Federal banking 
agency is, respectively, the primary federal supervisor. The Exchange 
Act seeks to protect investors by requiring accurate, reliable, and 
timely corporate securities disclosures.
    The FDIC is authorized, in administering the above-listed statutory 
provisions, to promulgate regulations applicable to the securities of 
insured banks (including foreign banks having an insured branch) which 
are neither members of the Federal Reserve System nor District banks 
(collectively referred to as ``state nonmember banks''). These 
regulations must be substantially similar to the regulations of the 
Securities and Exchange Commission (SEC) under the listed sections of 
the Exchange Act and the Sarbanes-Oxley Act, unless the FDIC publishes 
its reasons for deviating from the SEC's rules.

b. Section 16 of the Exchange Act

    Section 16 of the Exchange Act applies to every person who is the

[[Page 59781]]

beneficial owner of more than 10 percent of a class of equity 
securities registered under section 12 of the Exchange Act and to each 
officer and director of the issuer of the security (collectively, 
``reporting persons,'' ``insiders,'' or ``filers''). Upon becoming a 
reporting person, or upon the section 12 registration of that class of 
securities, section 16(a) requires a reporting person to file an 
initial report with the SEC (or in the case of an insured depository 
institution, its appropriate Federal banking agency) disclosing the 
amount of his or her beneficial ownership of all equity securities of 
the issuer. To keep this information current, section 16(a) also 
requires reporting persons to report changes in their beneficial 
ownership. Prior to the Sarbanes-Oxley Act, insiders of state nonmember 
banks with a class of equity securities registered under section 12 of 
the Exchange Act filed these beneficial ownership reports on paper. In 
the case of insiders connected to state nonmember banks, reports were 
filed using FDIC Forms F-7, F-8, and F-8A.

c. Sarbanes-Oxley Act Amendments to Section 16

    As amended by section 403 of the Sarbanes-Oxley Act of 2002, Public 
Law 107-204 (July 30, 2002), section 16(a) of the Exchange Act (15 
U.S.C. 78p(a)) requires electronic submission of certain beneficial 
ownership reports submitted on or after July 30, 2003. The SEC or, 
respectively, the appropriate Federal banking agency, is required to 
make those filings available to the public on the Internet. 
Institutions with Web sites are required to post their insiders' change 
in beneficial ownership reports on their Internet Web sites. In 
addition, section 16, as amended by Sarbanes-Oxley, requires filing of 
beneficial ownership reports before the end of the second business day 
following the day on which the subject transaction was executed 
(effective for transactions on or after August 29, 2002).

II. Development and Initiation of Electronic Filing System for 
Beneficial Ownership Reports

    On August 27, 2002, the SEC adopted rule amendments to implement 
the accelerated filing deadline for beneficial ownership reports [see 
SEC Release No. 34-46421 (Sept. 3, 2002) [67 FR 56462]]. These 
amendments have, since their adoption, been applicable to insiders of 
state nonmember banks in accordance with section 335.601 of the FDIC 
rules. Previously, beneficial ownership reports filed by insiders of 
state nonmember banks were filed with the FDIC within 10 days from the 
end of the month of the transaction. On May 7, 2003, the SEC issued a 
final rule implementing the electronic submission requirements for 
beneficial ownership reports as required by section 16 of the Exchange 
Act as amended [SEC Release No. 34-47809 (May 13, 2003) [68 FR 25788]]. 
On July 30, 2003, the FDIC, FRB, and OCC established an interagency 
electronic filing system for these beneficial ownership reports, hosted 
on the FDIC's web site. See FIL-60-2003, Federal Banking Agencies 
Announce New Interagency Electronic Filing System for Beneficial 
Ownership Reports (July 28, 2003) [http://www.fdic.gov/news/news/financial/2003/fil0360.html]. The OTS joined this filing system on 
October 27, 2003. See OTS 03-36, Office of Thrift Supervision Joins the 
FDIC's Interagency Electronic Filing System for Beneficial Ownership 
Reports (October 30, 2003) [http://www.ots.treas.gov/docs/7/77336.html]. The filing of beneficial ownership reports using the 
electronic interagency filing system was authorized for insiders of 
state nonmember banks beginning July 30, 2003, to provide an initial 
period to test the efficacy of the system.

III. Interim Final Rule and Request for Comments

    On April 12, 2004, the FDIC published in the Federal Register (69 
FR 19085) an interim final rule which, consistent with Sarbanes-Oxley, 
provided an exception to a prohibition in part 335 of the FDIC's rules 
on electronic filing of required reports. Effective June 11, 2004, the 
rule required the electronic transmission of beneficial ownership 
reports by bank directors, officers, and principal shareholders to 
disclose securities transactions and ownership. The interim final rule 
also made certain technical or procedural amendments to part 335. The 
FDIC invited comment on the interim final rule, with comments due by 
June 11, 2004. The FDIC specifically invited comment on whether the 
FDIC's rules should include a provision like one in the SEC's rules for 
its EDGAR system that protects an electronic filer from the liability 
and anti-fraud provisions of the federal securities laws with respect 
to an error or omission in an electronic filing resulting solely from 
electronic transmission errors beyond the control of the filer, where 
the filer corrects the error or omission by the filing of an amendment 
in electronic format as soon as reasonably practicable after the 
electronic filer becomes aware of the error or omission.
    One comment was filed on the interim final rule. The commenter, a 
trade association for insured depository institutions, stated that 
persons filing beneficial ownership reports electronically with the 
FDIC should be protected from liability to the same extent as filers 
with the SEC. However, the commenter believed it is unclear whether the 
FDIC's authority under Section 12(i) of the Exchange Act is sufficient 
to incorporate the protection provided by the SEC. Therefore, the 
commenter argued, the FDIC should include in its regulations specific 
language to this effect.

IV. Final Rule

a. Effect of Sarbanes-Oxley Act

    The FDIC's securities disclosure regulations, which contain 
registration and reporting requirements applicable to state nonmember 
banks with securities registered under section 12 of the Exchange Act 
(registered banks), are contained in 12 CFR part 335. Before the 
effective date of section 403 of the Sarbanes-Oxley Act, part 335 of 
the FDIC rules prohibited any electronically transmitted filings or 
submissions of materials in electronic format to the FDIC. In regard to 
the filing of beneficial ownership reports, that prohibition was 
superseded by section 403 of the Sarbanes-Oxley Act of 2002, which 
amended section 16 of the Exchange Act.

b. Electronic Filing Requirements

    As amended, 12 CFR part 335 makes clear that, except in limited 
circumstances described below, beneficial ownership reports by state 
nonmember bank insiders are to be filed electronically with the FDIC, 
consistent with timeframes provided in section 16 of the Exchange Act 
and SEC regulations. Mandated electronic filing benefits members of the 
investing public and the financial community by making information 
contained in the filings available to them immediately after receipt by 
the FDIC. Electronically filed information concerning insiders' 
transactions in registered bank equity securities will be publicly 
accessible substantially sooner and more readily than before. The 
electronic format of the filed information facilitates research and 
data analysis by investors and the public. The accelerated filing 
requirements of section 16(a) of the Exchange Act that took effect on 
August 29, 2002, also make electronic filing of beneficial ownership 
reports more useful to the public. Finally, the FDIC believes that 
investors want electronic access to these forms, that reports of 
insiders' transactions in equity securities of registered banks provide

[[Page 59782]]

useful information as to management's views of the bank's performance 
or prospects, and that more timely and transparent access to reports 
will be useful to investors.
    As required by section 12(i) of the Exchange Act, the amended 12 
CFR part 335 is substantially similar to the Exchange Act regulations 
of the SEC.\1\ Should a reason for deviating from SEC regulations 
become apparent in the future, the FDIC will consider amending its 
rules. The FDIC has adopted other technical provisions which address 
the forms on which beneficial ownership reports are filed. Also, to 
improve consistency with SEC requirements, the FDIC has revised the 
names of its existing beneficial ownership report Forms F-7, F-8 and F-
8A. These Forms have been renamed as FDIC Forms 3, 4 and 5, 
respectively.
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    \1\ The FDIC's rules, at 12 CFR 335.101(b), provide that part 
335 generally incorporates the SEC's rules issued under Section 12, 
13, 14, and 16 of the Exchange Act.
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c. Hardship Exemption

    As discussed, 12 CFR part 335 as amended requires all beneficial 
ownership reports to be electronically submitted on the FDIC's 
interagency Beneficial Ownership Filings system. If all or part of a 
filing cannot be made electronically without undue burden or expense, a 
reporting person may apply for a continuing hardship exemption under 
the new section 12 CFR 335.801(b)(6).
    A filer may apply in writing for a continuing hardship exemption if 
all or part of a filing or group of filings otherwise to be filed in 
electronic format cannot be so filed without undue burden or expense. 
Such written application must be made at least ten business days prior 
to the required due date of the filing(s) or the proposed filing date, 
as appropriate, or within such shorter period as may be permitted by 
the FDIC. The written application for the exemption must include the 
following information:
    (1) The reason(s) that the necessary hardware and software are not 
available without unreasonable burden and expense;
    (2) The burden and expense involved to employ alternative means to 
make the electronic submission; and/or
    (3) The reasons for not submitting electronically the document or 
group of documents, as well as justification for the requested time 
period for the exemption.
    If the FDIC determines that the grant of the exemption is 
appropriate and consistent with the public interest and the protection 
of investors, it will so notify the applicant. Upon such notification 
the filer must submit the document for which the exemption is granted 
in paper format on the required due date specified in the applicable 
form, rule, or regulation, or the proposed filing date, as appropriate. 
Additional provisions applicable to the continuing hardship exemption 
and detailed procedures for seeking the exemption are set forth in the 
text of the amended regulation.

d. Filing Date Adjustment

    Instead of pursuing a hardship exemption, an electronic filer may 
request a filing date adjustment under this rule where the filer 
attempts in good faith to file a document with the FDIC in a timely 
manner but the filing is delayed due to technical difficulties beyond 
the filer's control. In those instances, the filer may request an 
adjustment of the document's filing date. The FDIC may grant the 
request if it appears that the adjustment is appropriate and consistent 
with the public interest and the protection of investors.

e. Potential Liability in Case of Transmission Errors

    The SEC's rules governing electronic filings provide that an 
electronic filer ``shall not be subject to the liability and anti-fraud 
provisions of the federal securities laws with respect to an error or 
omission in an electronic filing resulting solely from electronic 
transmission errors beyond the control of the filer, where the filer 
corrects the error or omission by the filing of an amendment in 
electronic format as soon as reasonably practicable after the 
electronic filer becomes aware of the error or omission.'' 17 CFR 
232.103. Although FDIC received a comment that it should include 
specific language to this effect in Part 335, after further 
consideration the FDIC does not believe such language is necessary. As 
stated in the preamble to the interim final rule, the FDIC believes 
that the SEC's regulation presents a reasonable approach to 
transmission errors and that it applies to electronic filings made with 
the FDIC as well. See 12 CFR 335.101(b). In circumstances where there 
has been a filing error or omission due solely to an electronic 
transmission error beyond the filer's control, the FDIC will not cite a 
violation of part 335 if the error or omission is corrected as soon as 
reasonably practicable.

V. Regulatory Analysis and Procedure

a. Administrative Procedure Act (APA)

    As noted in publishing the interim final rule, under the 
Administrative Procedure Act, 5 U.S.C. 553(b), the FDIC found good 
cause to issue the interim final rule without first seeking public 
comment. Section 553(b) of the APA does not apply to rules of agency 
organization, procedure, or practice, or when the agency for good cause 
finds that notice and public comment on the rules being promulgated are 
impracticable or unnecessary. As discussed in the preamble to the 
interim final rule, the FDIC confirms its finding that this is a 
procedural rule, and that, in addition, there is good cause to issue 
the rule before providing an opportunity for public comment. Also, as 
discussed above and in the preamble to the interim final rule, the 
Sarbanes-Oxley Act mandates that certain beneficial ownership reports 
be filed electronically. Therefore, the current outright prohibition in 
12 CFR part 335 on electronic filing is obsolete. Also, as noted, the 
SEC has made electronic filing mandatory and the Exchange Act requires 
that the FDIC issue regulations substantially similar to those of the 
SEC or publish its reasons for not doing so. Therefore, prior public 
comment on whether to continue to prohibit the electronic filing of 
these reports was impracticable and unnecessary. Nonetheless, the FDIC 
solicited public comment and has considered the comment that was filed.
    Further, as authorized by section 553(d) of the APA, the FDIC finds 
that there is good cause for this final rule to take effect immediately 
upon publication in the Federal Register. The interim final rule became 
effective on June 11, 2004, and insured state nonmember banks have had 
approximately one year since the establishment of the FDIC's electronic 
filing system to gain experience in filing these reports 
electronically. No purpose would be served by delaying the rule's 
effective date.

b. Paperwork Reduction Act

    Reports of beneficial ownership are considered to be a collection 
of information under the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.) The FDIC has previously obtained Office of Management and Budget 
(OMB) approval of this collection of information under control number 
3064-0030. OMB has reviewed and approved the collection as revised to 
take into account electronic filing. It is estimated that there will be 
1,800

[[Page 59783]]

responses annually, cumulatively resulting in 1,100 burden hours.

c. Regulatory Flexibility Act

    A regulatory flexibility analysis is required only when the agency 
must publish a notice of proposed rulemaking (5 U.S.C. 603, 604). As 
already noted, the FDIC has determined that a notice of proposed 
rulemaking is not required. Accordingly, no regulatory flexibility 
analysis is required.

d. Small Business Regulatory Flexibility Enforcement Fairness Act

    Section 804 of the Small Business Regulatory Flexibility 
Enforcement Fairness Act (``SBREFA''), 5 U.S.C. 801 et al., defines 
``rule'' to exclude any rule of agency organization, procedure, or 
practice that does not substantially affect the rights or obligations 
of non-agency parties. The amendments to part 335 are technical and 
ministerial applications of the statute and affect only procedural 
matters. Therefore, the rule is not covered by covered by SBREFA and is 
not being reported to Congress.

List of Subjects in 12 CFR Part 335

    Accounting, Banks, Banking, Confidential business information, 
Reporting and recordkeeping requirements, Securities.


0
For the reasons set forth in the preamble, part 335 of chapter III of 
title 12 of the Code of Federal Regulations is amended to read as 
follows:

PART 335--SECURITIES OF NONMEMBER INSURED BANKS

0
1. The authority citation for part 335 continues to read as follows:

    Authority: 15 U.S.C. 78l(i).


0
2. Section 335.101 is amended by revising the second sentence of 
paragraph (a) to read as follows:


Sec.  335.101  Scope of part, authority and OMB control number.

    (a) * * * The FDIC is vested with the powers, functions, and duties 
vested in the Securities and Exchange Commission (the Commission or 
SEC) to administer and enforce the provisions of sections 10A(m), 12, 
13, 14(a), 14(c), 14(d), 14(f), and 16 of the Securities Exchange Act 
of 1934, as amended (the Exchange Act) (15 U.S.C. 78l, 78m, 78n(a), 
78n(c), 78n(d), 78n(f), and 78(p)), and sections 302, 303, 304, 306, 
401(b), 404, 406, and 407 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 
7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265) regarding nonmember 
banks with one or more classes of securities subject to the 
registration provisions of sections 12(b) and 12(g) of the Exchange 
Act.
* * * * *

0
3. Section 335.111 is amended by revising the sixth sentence to read as 
follows:


Sec.  335.111  Forms and schedules.

    * * * Forms 3 (Sec.  335.611), 4 (Sec.  335.612), and 5 (Sec.  
335.613) are FDIC forms which are issued under section 16 of the 
Exchange Act and can be obtained from the Accounting and Securities 
Disclosure Section, Division of Supervision and Consumer Protection, 
Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, 
DC 20429. * * *

0
4. Section 335.601 is amended to read as follows:


Sec.  335.601  Requirements of section 16 of the Securities Exchange 
Act of 1934.

    Persons subject to section 16 of the Act with respect to securities 
registered under this part shall follow the applicable and currently 
effective SEC regulations issued under section 16 of the Act (17 CFR 
240.16a-1 through 240.16e-1(1), except that the forms described in 
Sec.  335.611 (FDIC Form 3), Sec.  335.612 (FDIC Form 4), and Sec.  
335.613 (FDIC Form 5) shall be used in lieu of SEC Form 3 (17 CFR 
249.103), Form 4 (17 CFR 249.104), and Form 5 (17 CFR 249.105), 
respectively. Copies of FDIC Forms 3, 4, 5 and the instructions thereto 
can be obtained from the Accounting and Securities Disclosure Section, 
Division of Supervision and Consumer Protection, Federal Deposit 
Insurance Corporation, 550 17th Street NW., Washington, DC 20429.

0
5. Section 335.611 is amended by revising the title to read as follows:


Sec.  335.611  Initial statement of beneficial ownership of securities 
(Form 3).

* * * * *

0
6. Section 335.612 is amended by revising the title to read as follows:


Sec.  335.612  Statement of changes in beneficial ownership of 
securities (Form 4).

* * * * *

0
7. Section 335.613 is amended by revising the title to read as follows:


Sec.  335.613  Annual statement of beneficial ownership of securities 
(Form 5).

* * * * *

0
8. Section 335.701 is amended by revising paragraph (a) and (b) to read 
as follows:


Sec.  335.701  Filing requirements, public reference, and 
confidentiality.

    (a) Filing requirements. Unless otherwise indicated in this part, 
one original and four conformed copies of all papers required to be 
filed with the FDIC under the Exchange Act or regulations thereunder 
shall be filed at its office in Washington, DC Official filings made at 
the FDIC's office in Washington, DC should be addressed as follows: 
Attention: Accounting and Securities Disclosure Section, Division of 
Supervision and Consumer Protection, Federal Deposit Insurance 
Corporation, 550 17th Street NW., Washington, DC 20429. Material may be 
filed by delivery to the FDIC through the mails or otherwise. The date 
on which papers are actually received by the designated FDIC office 
shall be the date of filing thereof if all of the requirements with 
respect to the filing have been complied with.
    (b) Inspection. Except as provided in paragraph (c) of this 
section, all information filed regarding a security registered with the 
FDIC will be available for inspection at the Federal Deposit Insurance 
Corporation, Accounting and Securities Disclosure Section, Division of 
Supervision and Consumer Protection, 550 17th Street, NW., Washington, 
DC. Beneficial ownership report forms that are electronically submitted 
to the FDIC through the interagency Beneficial Ownership Filings system 
will be made available on the FDIC's web site (http://www.fdic.gov).
* * * * *

0
9. Section 335.801 is amended by revising paragraph (b) to read as 
follows:


Sec.  335.801  Inapplicable SEC regulations; FDIC substituted 
regulations; additional information.

* * * * *
    (b) Electronic filings. (1) The FDIC does not participate in the 
SEC's EDGAR (Electronic Data Gathering Analysis and Retrieval) 
electronic filing program (17 CFR part 232). The FDIC does not permit 
electronically transmitted filings or submissions of materials in 
electronic format to the FDIC, with the exception of beneficial 
ownership report filings on FDIC Forms 3, 4 and 5.
    (2) All reporting persons must file beneficial ownership report 
Forms 3, 4 and 5, including amendments and exhibits thereto, in 
electronic format using the Internet based, interagency Beneficial 
Ownership Filings system, which is accessible through the FDICconnect 
Business Center, except that a reporting person that has obtained a 
continuing hardship exemption under these rules may file the forms with 
the FDIC in paper format. For information and answers to questions 
regarding beneficial ownership and the

[[Page 59784]]

completion and filing of the forms, please contact the FDIC Accounting 
and Securities Disclosure Section in Washington DC For information and 
answers to technical questions or problems relating to the use of 
FDICconnect, contact the FDICconnect Project Team toll-free at 877-275-
3342 or by mail at 3501 North Fairfax Drive, Arlington, VA 22226.
    (3) Electronic filings of FDIC beneficial ownership report Forms 3, 
4, and 5 must be submitted to the FDIC through the interagency 
Beneficial Ownership Filings system. Beneficial ownership reports and 
any amendments are deemed filed with the FDIC upon electronic receipt 
on business days from 8 a.m. through 10 p.m., Eastern Standard Time or 
Eastern Daylight Saving Time, whichever is currently in effect (Eastern 
Time). Business days include each day, except Saturdays, Sundays and 
Federal holidays. All filings submitted electronically to the FDIC 
commencing after 10 p.m. Eastern Time on business days shall be deemed 
filed as of 8 a.m. on the following business day. All filings submitted 
electronically to the FDIC on non-business days shall be deemed filed 
as of 8 a.m. on the following business day.
    (4) Adjustment of the filing date. If an electronic filer in good 
faith attempts to file a beneficial ownership report with the FDIC in a 
timely manner but the filing is delayed due to technical difficulties 
beyond the electronic filer's control, the electronic filer may request 
an adjustment of the filing date of such submission. The FDIC may grant 
the request if it appears that such adjustment is appropriate and 
consistent with the public interest and the protection of investors.
    (5) Exhibits. (i) Exhibits to an electronic filing that have not 
previously been filed with the FDIC shall be filed in electronic 
format, absent a hardship exemption.
    (ii) Previously filed exhibits, whether in paper or electronic 
format, may be incorporated by reference into an electronic filing to 
the extent permitted by applicable SEC rules under the Exchange Act. An 
electronic filer may, at its option, restate in electronic format an 
exhibit incorporated by reference that originally was filed in paper 
format.
    (iii) Any document filed in paper format in violation of mandated 
electronic filing requirements shall not be incorporated by reference 
into an electronic filing.
    (6) Continuing Hardship Exemption. The FDIC will not accept in 
paper format any beneficial ownership report filing required to be 
submitted electronically under this part unless the filer satisfies the 
requirements for a continuing hardship exemption:
    (i) A filer may apply in writing for a continuing hardship 
exemption if all or part of a filing or group of filings otherwise to 
be filed in electronic format cannot be so filed without undue burden 
or expense. Such written application shall be made at least ten 
business days prior to the required due date of the filing(s) or the 
proposed filing date, as appropriate, or within such shorter period as 
may be permitted. The written application shall be sent to the 
Accounting and Securities Disclosure Section, Division of Supervision 
and Consumer Protection, Federal Deposit Insurance Corporation, 550 
17th Street NW., Washington, DC 20429, and shall contain the 
information set forth in paragraph (b)(6)(ii) of this section.
    (A) The application shall not be deemed granted until the applicant 
is notified by the FDIC.
    (B) If the FDIC denies the application for a continuing hardship 
exemption, the filer shall file the required document in electronic 
format on the required due date or the proposed filing date or such 
other date as may be permitted.
    (C) If the FDIC determines that the grant of the exemption is 
appropriate and consistent with the public interest and the protection 
of investors and so notifies the applicant, the filer shall follow the 
procedures set forth in paragraph (b)(6)(iii) of this section.
    (ii) The request for the continuing hardship exemption shall 
include, but not be limited to, the following:
    (A) The reason(s) that the necessary hardware and software are not 
available without unreasonable burden and expense;
    (B) The burden and expense involved to employ alternative means to 
make the electronic submission; and/or
    (C) The reasons for not submitting electronically the document or 
group of documents, as well as justification for the requested time 
period for the exemption.
    (iii) If the request for a continuing hardship exemption is 
granted, the electronic filer shall submit the document or group of 
documents for which the exemption is granted in paper format on the 
required due date specified in the applicable form, rule or regulation, 
or the proposed filing date, as appropriate. The paper format 
document(s) shall have placed at the top of page 1, or at the top of an 
attached cover page, a legend in capital letters:


IN ACCORDANCE WITH 12 CFR 335.801(b), THIS (SPECIFY DOCUMENT) IS BEING 
FILED IN PAPER PURSUANT TO A CONTINUING HARDSHIP EXEMPTION.

    (iv) Where a continuing hardship exemption is granted with respect 
to an exhibit only, the paper format exhibit shall be filed with the 
FDIC under cover of SEC Form SE (17 CFR 249.444). Form SE shall be 
filed as a paper cover sheet to all exhibits to beneficial ownership 
reports submitted to the FDIC in paper form pursuant to a hardship 
exemption.
    (v) Form SE shall be submitted along with all exhibits filed in 
paper form pursuant to a hardship exemption. Form SE may be filed up to 
six business days prior to, or on the date of filing of, the electronic 
form to which it relates but shall not be filed after such filing date. 
If a paper exhibit is submitted in this manner, requirements that the 
exhibit be filed with, provided with, or accompany the electronic 
filing shall be satisfied. Any requirements as to delivery or 
furnishing the information to persons other than the FDIC shall not be 
affected by this section.
    (7) Signatures. (i) Required signatures to, or within, any 
electronic submission must be in typed form. When used in connection 
with an electronic filing, the term ``signature'' means an electronic 
entry or other form of computer data compilation of any letters or 
series of letters or characters comprising a name, executed, adopted or 
authorized as a signature.
    (ii) Each signatory to an electronic filing shall manually sign a 
signature page or other document authenticating, acknowledging or 
otherwise adopting his or her signature that appears in typed form 
within the electronic filing. Such document shall be executed before or 
at the time the electronic filing is made and shall be retained by the 
filer for a period of five years. Upon request, an electronic filer 
shall furnish to the FDIC a copy of any or all documents retained 
pursuant to this section.
    (iii) Where the FDIC's rules require a filer to furnish to a 
national securities exchange, a national securities association, or a 
bank, paper copies of a document filed with the FDIC in electronic 
format, signatures to such paper copies may be in typed form.
* * * * *

    Note-- The following forms will not appear in the Code of 
Federal Regulations.



0
10. Amend Form F-7 (referenced in Sec.  335.111 and Sec.  335.611) by:
0
a. Revising General Instruction 2(a);
0
b. Revising General Instruction 3(a);
0
c. Adding a note following General Instruction 3;
0
d. Revising General Instruction 5(b)(v);

[[Page 59785]]

0
e. Revising General Instruction 6;
0
f. Adding a new General Instruction 8;
0
g. Revising the short title of the Initial Statement of Beneficial 
Ownership of Securities from Form F-7 to Form 3 in the form heading;
0
h. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the 
information preceding Table I as Items 3, 4, 5 and 6 to the information 
preceding Table I; and
0
i. Revising newly redesignated Item 5 to the information preceding 
Table I.
    The revisions and additions read as follows:

Form 3 Initial Statement of Beneficial Ownership of Securities

* * * * *
GENERAL INSTRUCTIONS
* * * * *

2. When Form Must Be Filed

    (a) This form must be filed within 10 days after the event by which 
the person becomes a reporting person (i.e., officer, director, 10 
percent holder or other person). This form and any amendment is deemed 
filed with the appropriate Federal Banking Agency upon electronic 
receipt on business days during the hours of 8 a.m. until 10 p.m. 
Eastern Standard Time or Eastern Daylight Saving Time, whichever is 
currently in effect. A form received after these business hours will be 
deemed filed at 8 a.m. on the following business day. If this form is 
submitted through FDICconnect on a non-business day, it will be deemed 
filed at 8 a.m. on the following business day. Business days include 
all weekdays that are not Federal holidays. A paper form submitted by a 
reporting person that has obtained a hardship exemption under FDIC 
rules will be deemed filed with the FDIC on the date it is received by 
the FDIC. If this form is required to be filed on an exchange, this 
form and any amendment is deemed filed with the exchange on the date it 
is received by the exchange.
* * * * *

3. Where Form Must Be Filed

    (a) A reporting person must file Form 3 in electronic format using 
the secure, Internet-based, FDICconnect Business Center to access the 
interagency Beneficial Ownership Filings system, except that a filing 
person that has obtained a hardship exemption under applicable FDIC 
rules (see 12 CFR 335.801(b)) may file the form in paper form. For 
information and answers to questions regarding beneficial ownership and 
the completion and filing of the forms please contact the FDIC Division 
of Supervision and Consumer Protection, Accounting and Securities 
Disclosure Section, 550 17th Street NW., Washington, DC 20429. For 
technical questions or problems relating to the use of FDICconnect or 
Designated Coordinator registration, contact FDICconnect toll-free at 
877-275-3342 or via e-mail at [email protected].
* * * * *

    Note: If filing pursuant to a hardship exemption under FDIC 
rules, file three copies of this form or any amendment, at least one 
of which is signed, with the FDIC in accordance with applicable 
rules. (Acknowledgement of receipt by the agency may be obtained by 
enclosing a self-addressed stamped postcard or envelope identifying 
the form or amendment filed.)

* * * * *

5. Holdings Required To Be Reported

* * * * *
(b) Beneficial Ownership Reported (Pecuniary Interest)
* * * * *
    (v) Where more than one person beneficially owns the same equity 
securities, such owners may file Form 3 individually or jointly. Joint 
and group filings may be made by any designated beneficial owner. 
Holdings of securities owned separately by any joint or group filer are 
permitted to be included in the joint filing. Indicate the name and 
address of the designated reporting person in Item 1 of Form 3 and 
attach a list of the names and addresses of each other reporting 
person. Joint and group filings must include all required information 
for each beneficial owner, and such filings must be signed by each 
beneficial owner, or on behalf of such owner by an authorized person. 
Use the Filer Information screen in the interagency Beneficial 
Ownership Filings system to submit additional joint or group filers' 
names and related filing information required by this form.
    If this form is being filed in paper form pursuant to a hardship 
exemption and the space provided for signatures is insufficient, attach 
a signature page. If this form is being filed in paper form, submit any 
attached listing of names or signatures on another Form 3, copy of Form 
3 or separate page of 8\1/2\ by 11 inch white paper, indicate the 
number of pages comprising the report (form plus attachments) at the 
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include 
the name of the designated filer and information required by Items 2 
and 3 of the form on the attachment.
    See SEC Rule 16a-3(i) regarding signatures.
* * * * *

6. Additional Information

    (a) If space provided in the line items on this Form 3 is 
insufficient, identify and enter additional information and footnotes 
under Explanation of Responses.
    (b) If the space provided in the line items on the paper Form 3 or 
space provided for additional comments is insufficient, attach another 
Form 3, copy of Form 3 or separate 8\1/2\ by 11 inch white paper to 
Form 3, completed as appropriate to include the additional comments. 
Each attached page must include information required in Items 1, 2 and 
3 of the form. The number of pages comprising the report (form plus 
attachments) shall be indicated at the bottom of each report page 
(e.g., 1 of 3, 2 of 3, 3 of 3).
    (c) If one or more exhibits are included with the form, provide a 
reference to such exhibit(s) under Explanation of Responses. If the 
exhibit is being filed in paper form pursuant to a hardship exemption 
under applicable FDIC rules, place the designation ``P'' (paper) next 
to the name of the exhibit in the exhibit reference.
    (d) If additional information is not reported in this manner, it 
will be assumed that no additional information was provided.
* * * * *

8. Amendments

    (a) If this form is filed as an amendment in order to add one or 
more lines of ownership information to Table I or Table II of the form 
being amended, provide each line being added, together with one or more 
footnotes, under Explanation of Responses as necessary to explain the 
addition of the line or lines. Do not repeat lines of ownership 
information that were disclosed in the original form and are not being 
amended.
    (b) If this form is filed as an amendment in order to amend one or 
more lines of ownership information that already were disclosed in 
Table I or Table II of the form being amended, provide the complete 
line or lines being amended, as amended, together with notes under 
Explanation of Responses as necessary to explain the amendment of the 
line or lines. Do not repeat lines of ownership information that were 
disclosed in the original form and are not being amended.
    (c) If this form is filed as an amendment for any other purpose 
other than or in addition to the purpose described in items (a) or (b) 
of this General Instruction 8, provide one or more notes under 
Explanation of

[[Page 59786]]

Responses, as necessary, to explain the amendment.
* * * * *
Form 3 Initial Statement of Beneficial Ownership of Securities
* * * * *
5. If Amendment, Date Original Filed
    (Month/Day/Year)
* * * * *

0
11. Amend Form F-8 (referenced in Sec.  335.111 and Sec.  335.612) by:
0
a. Revising General Instruction 1(a);
0
b. Revising General Instruction 2(a);
0
c. Adding a note following General Instruction 2;
0
d. Revising General Instruction 4(b)(v);
0
e. Revising General Instruction 6;
0
f. Adding a new General Instruction 9;
0
g. Revising the short title of the Statement of Changes in Beneficial 
Ownership of Securities from Form F-8 to Form 4 in the form heading;
0
h. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the 
information preceding Table I as Items 3, 4, 5 and 6 to the information 
preceding Table I; and
0
i. Revising newly redesignated Items 3 and 4 to the information 
preceding Table I.
    The revisions and additions read as follows:
Form 4 Statement of Changes in Beneficial Ownership of Securities
* * * * *
GENERAL INSTRUCTIONS
* * * * *

1. When Form Must Be Filed

    (a) This form must be filed on or before the end of the second 
business day following the day on which a transaction resulting in a 
change in beneficial ownership has been executed (See SEC Rule 16a-
1(a)(2) and Instruction 4 regarding the meaning of ``beneficial 
owner,'' and SEC Rule 16a-3(g) regarding determination of the date of 
execution for specified transactions). This form and any amendment is 
deemed filed with the FDIC upon electronic receipt on business days 
during the hours of 8 a.m. until 10 p.m. Eastern Standard Time or 
Eastern Daylight Saving Time, whichever is currently in effect. A form 
received after these business hours will be deemed filed at 8 a.m. on 
the following business day. If this form is submitted through 
FDICconnect on a non-business day, it will be deemed filed at 8 a.m. on 
the following business day. Business days include all weekdays that are 
not Federal holidays. A paper form submitted by a reporting person that 
has obtained a hardship exemption under applicable FDIC rules will be 
deemed filed with the FDIC on the date it is received by the FDIC. If 
this form is required to be filed on an exchange, this form and any 
amendment is deemed filed with the exchange on the date it is received 
by the exchange.
* * * * *

2. Where Form Must Be Filed

    (a) A reporting person must file Form 4 in electronic format using 
the secure, Internet-based, FDICconnect Business Center to access the 
interagency Beneficial Ownership Filings system, except that a filing 
person that has obtained a hardship exemption under applicable FDIC 
rules (see 12 CFR 335.801(b)) may file the form in paper form. For 
information and answers to questions regarding beneficial ownership and 
the completion and filing of the forms please contact the FDIC Division 
of Supervision and Consumer Protection, Accounting and Securities 
Disclosure Section, 550 17th Street NW., Washington, DC 20429. For 
technical questions or problems relating to the use of FDICconnect or 
Designated Coordinator registration, contact FDICconnect toll-free at 
877-275-3342 or via e-mail at [email protected].
* * * * *

    Note: If filing pursuant to a hardship exemption under FDIC 
rules, file three copies of this Form or any amendment, at least one 
of which is signed, with the FDIC in accordance with applicable 
rules. (Acknowledgement of receipt by the agency may be obtained by 
enclosing a self-addressed stamped postcard or envelope identifying 
the Form or amendment filed.)

* * * * *

4. Transactions and Holdings Required To Be Reported

* * * * *

(b) Beneficial Ownership Reported (Pecuniary Interest)

* * * * *
    (v) Where more than one beneficial owner of the same equity 
securities must report transactions on Form 4, such owners may file 
Form 4 individually or jointly. Joint and group filings may be made by 
any designated beneficial owner. Transactions with respect to 
securities owned separately by any joint or group filer are permitted 
to be included in the joint filing. Indicate the name and address of 
the designated reporting person in Item 1 of Form 4 and attach a list 
of the names and addresses of each other reporting person. Joint and 
group filings must include all the required information for each 
beneficial owner, and such filings must be signed by each beneficial 
owner, or on behalf of such owner by an authorized person. Use the 
Filer Information screen in the interagency Beneficial Ownership 
Filings system to submit additional joint or group filers' names and 
related filing information required by this form.
    If this form is being filed in paper form pursuant to a hardship 
exemption and the space provided for signatures is insufficient, attach 
a signature page. If this form is being filed in paper form, submit any 
attached listing of names or signatures on another Form 4, copy of Form 
4 or separate page of 8\1/2\ by 11 inch white paper, indicate the 
number of pages comprising the report (form plus attachments) at the 
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include 
the name of the designated filer and information required by Items 2 
and 3 of the form on the attachment.
    See SEC Rule 16a-3(i) regarding signatures.
* * * * *

6. Additional Information

    (a) If space provided in the line items on the Form 4 is 
insufficient, identify and enter additional information under 
Explanation of Responses.
    (b) If the space provided in the line items on the paper Form 4 or 
space provided for additional comments is insufficient, attach another 
Form 4, copy of Form 4 or separate 8\1/2\ by 11 inch white paper to 
Form 4, completed as appropriate to include the additional comments. 
Each attached page must include information required in Items 1, 2 and 
3 of the form. The number of pages comprising the report (form plus 
attachments) shall be indicated at the bottom of each report page 
(e.g., 1 of 3, 2 of 3, 3 of 3).
    (c) If one or more exhibits are included with the form, provide a 
reference to such exhibit(s) under Explanation of Responses. If the 
exhibit is being filed in paper form pursuant to a hardship exemption 
under applicable FDIC rules, place the designation ``P'' (paper) next 
to the name of the exhibit in the exhibit reference.
    (d) If additional information is not reported in this manner, it 
will be assumed that no additional information was provided.
* * * * *

9. Amendments

    (a) If this form is filed as an amendment in order to add one or 
more lines of ownership information to Table I or Table II of the form 
being amended, provide each line being added, together with one or more 
footnotes under

[[Page 59787]]

Explanation of Responses, as necessary, to explain the addition of the 
line or lines. Do not repeat lines of ownership information that were 
disclosed in the original form and are not being amended.
    (b) If this form is filed as an amendment in order to amend one or 
more lines of ownership information that already were disclosed in 
Table I or Table II of the form being amended, provide the complete 
line or lines being amended, as amended, together with notes under 
Explanation of Responses as necessary to explain the amendment of the 
line or lines. Do not repeat lines of ownership information that were 
disclosed in the original form and are not being amended.
    (c) If this form is filed as an amendment for any other purpose 
other than or in addition to the purpose described in items (a) or (b) 
of this General Instruction 9, provide one or more notes under 
Explanation of Responses, as necessary, to explain the amendment.
* * * * *
Form 4 Statement of Changes in Beneficial Ownership of Securities
* * * * *
Item 3. Date of Earliest Transaction Required to be Reported
    (Month/Day/Year)
Item 4. If Amendment, Date Original Filed
    (Month/Day/Year)
* * * * *
0
12. Amend Form F-8A (referenced in Sec.  335.111 and Sec.  335.613) by:
0
a. Revising General Instruction 1(a);
0
b. Revising General Instruction 2(a);
0
c. Adding a note following General Instruction 2;
0
e. Revising General Instruction 4(b)(v);
0
f. Revising General Instruction 6;
0
g. Adding a new General Instruction 9;
0
h. Revising the short title of the Annual Statement of Beneficial 
Ownership of Securities from Form F-8A to Form 5 in the form heading;
0
i. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the 
information preceding Table I as Items 3, 4, 5 and 6;
0
j. Revising newly redesignated Items 3 and 4 to the information 
preceding Table I;
0
k. Revising the heading for columns 9 and 10 in Table II.
    The revisions and additions read as follows:

Form 5 Annual Statement of Beneficial Ownership of Securities

* * * * *
GENERAL INSTRUCTIONS
* * * * *

1. When Form Must Be Filed

    (a) This form must be filed on or before the 45th day after the end 
of the bank's fiscal year in accordance with SEC Rule 16a-3(f). This 
form and any amendment is deemed filed with the FDIC upon electronic 
receipt on business days during the hours of 8 a.m. until 10 p.m. 
Eastern Standard Time or Eastern Daylight Saving Time, whichever is 
currently in effect. A form received after these business hours will be 
deemed filed at 8 a.m. on the following business day. If this form is 
submitted through FDICconnect on a non-business day, it will be deemed 
filed at 8 a.m. on the following business day. Business days include 
all weekdays that are not federal holidays. A paper form submitted by a 
reporting person that has obtained a hardship exemption under 
applicable FDIC rules will be deemed filed with the FDIC on the date it 
is received by the FDIC. If this form is required to be filed on an 
exchange, this form and any amendment is deemed filed with the exchange 
on the date it is received by the exchange.
* * * * *

2. Where Form Must Be Filed

    (a) A reporting person must file Form 5 in electronic format using 
the secure, Internet-based, FDICconnect Business Center to access the 
interagency Beneficial Ownership Filings system, except that a filing 
person that has obtained a hardship exemption under applicable FDIC 
rules (see 12 CFR 335.801(b)) may file the form in paper form. For 
information and answers to questions regarding beneficial ownership and 
the completion and filing of the forms please contact the FDIC Division 
of Supervision and Consumer Protection, Accounting and Securities 
Disclosure Section, 550 17th Street, NW., Washington, DC 20429. For 
technical questions or problems relating to the use of FDICconnect or 
Designated Coordinator registration, contact FDICconnect toll-free at 
877-275-3342 or via e-mail at [email protected].
* * * * *

    Note: If filing pursuant to a hardship exemption under FDIC 
rules, file three copies of this form or any amendment, at least one 
of which is signed, with the FDIC in accordance with applicable 
rules. (Acknowledgement of receipt by the agency may be obtained by 
enclosing a self-addressed stamped postcard or envelope identifying 
the form or amendment filed.)

* * * * *

4. Transactions and Holdings Required To Be Reported

* * * * *

(b) Beneficial Ownership Reported (Pecuniary Interest)

* * * * *
    (v) Where more than one beneficial owner of the same equity 
securities must report transactions on Form 5, such owners may file 
Form 5 individually or jointly. Joint and group filings may be made by 
any designated beneficial owner. Transactions with respect to 
securities owned separately by any joint or group filer are permitted 
to be included in the joint filing. Indicate the name and address of 
the designated reporting person in Item 1 of Form 5 and attach a list 
of the names and addresses of each other reporting person. Joint and 
group filings must include all the required information for each 
beneficial owner, and such filings must be signed by each beneficial 
owner, or on behalf of such owner by an authorized person. Use the 
Filer Information screen in the interagency Beneficial Ownership 
Filings system to submit additional joint or group filers' names and 
related filing information required by this form.
    If this form is being filed in paper form pursuant to a hardship 
exemption and the space provided for signatures is insufficient, attach 
a signature page. If this form is being filed in paper form, submit any 
attached listing of names or signatures on another Form 5, copy of Form 
5 or separate page of 8\1/2\ by 11 inch white paper, indicate the 
number of pages comprising the report (form plus attachments) at the 
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include 
the name of the designated filer and information required by Items 2 
and 3 of the form on the attachment.
    See SEC Rule 16a-3(i) regarding signatures.
* * * * *

6. Additional Information

    (a) If space provided in the line items on the Form 5 is 
insufficient, identify and enter additional information under 
Explanation of Responses.
    (b) If the space provided in the line items on the paper Form 5 or 
space provided for additional comments is insufficient, attach another 
Form 5, copy of Form 5 or separate 8\1/2\ by 11 inch white paper to 
Form 5, completed as appropriate to include the additional comments. 
Each attached page must include information required in Items 1, 2 and 
3 of the form. The number of pages comprising the report (form plus 
attachments) shall be indicated at the

[[Page 59788]]

bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3).
    (c) If one or more exhibits are included on the form, provide a 
reference to such exhibit(s) under Explanation of Responses. If the 
exhibit is being filed in paper form pursuant to a hardship exemption 
under applicable FDIC rules, place the designation ``P'' (paper) next 
to the name of the exhibit in the exhibit reference.
    (d) If additional information is not reported in this manner, it 
will be assumed that no additional information was provided.
* * * * *

9. Amendments

    (a) If this form is filed as an amendment in order to add one or 
more lines of ownership information to Table I or Table II of the form 
being amended, provide each line being added, together with one or more 
footnotes under Explanation of Responses, as necessary, to explain the 
addition of the line or lines. Do not repeat lines of ownership 
information that were disclosed in the original form and are not being 
amended.
    (b) If this form is filed as an amendment in order to amend one or 
more lines of ownership information that already were disclosed in 
Table I or Table II of the form being amended, provide the complete 
line or lines being amended, as amended, together with notes under 
Explanation of Responses as necessary to explain the amendment of the 
line or lines. Do not repeat lines of ownership information that were 
disclosed in the original form and are not being amended.
    (c) If this form is filed as an amendment for any other purpose 
other than or in addition to the purpose described in items (a) or (b) 
of this General Instruction 9, provide one or more notes under 
Explanation of Responses, as necessary, to explain the amendment.
* * * * *

Form 5 Annual Statement of Changes in Beneficial Ownership of 
Securities

* * * * *
3. Statement for Issuer's Fiscal Year Ended
    (Month/Day/Year)
4. If Amendment, Date Original Filed
    (Month/Day/Year)
* * * * *
Table II--Derivative Securities Acquired, Disposed of, or Beneficially 
Owned (e.g., Puts, Calls, Warrants, Options, Convertible Securities)
* * * * *
9. Number of Derivative Securities Beneficially Owned at End of 
Issuer's Fiscal Year (Instr. 4)
10. Ownership Form of Derivative Securities: Direct (D) or Indirect (I) 
(Instr. 4)
* * * * *

    Dated at Washington, DC, this 29th day of September, 2004.

    By Order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 04-22384 Filed 10-5-04; 8:45 am]
BILLING CODE 6714-01-U